TMI Blog2006 (1) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... vices must precede a legislative act or in absence of legislation, rules framed in terms of proviso appended to Article 309 of the Constitution of India. There is nothing on record to show as to the precise job required to be performed by the three men Committee i.e. they were to identify such schools which met the criteria laid down in the Circular letter dated 25.9.1981 or 25.1.1985 or whether they were also to scrutinize the academic and other qualifications required for appointment of the teaching and nonteaching staff. Except certain statements made in the affidavit before the High Court as also before us the parties herein had not produced any document to show that on what term or terms the process of recognition/taking over of the private schools had been made. There is no dispute about 150 schools. Various documents as also the affidavits filed on behalf of the State in no uncertain terms show that besides the schools which were established by the State and are being run by it, there are various other schools over which there was a dispute about their identification. The Government established 75 schools and three men Committee identified 57 schools. The teachers of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... schools. This part of the order of the High Court does not require elaborate consideration as the State Government had now sanctioned 4 additional posts with retrospective effect. Even if there is no dispute as regard number of schools, in view of the stand taken by the State and particularly in view of the fact that it appears from the records that recognition of the school, if any, had wrongly been granted to some schools where buildings were also not completed or the process of selection was also not over, it may be necessary for the State to have a further look in the matter. It is furthermore necessary to scrutinize as to whether the teaching and non-teaching staff appointed for the said purpose fulfill the criteria in terms of the policy decision of the State or not. Their qualifications laid down under other relevant statutes for the purpose of obtaining permission must also be scrutinized. We do not find any merit in the contention raised by the learned counsel appearing on behalf of the Respondents that the principle of equitable estoppel would apply against the State of Bihar. It is now well known, the rule of estoppel has no application where contention as regard consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cruitment strictly in accordance with law. All the concerned Regional Deputy Directors of Education must also submit their reports in respect of the Project Schools within four weeks from date before the committee. The Committee shall also deal with all such individual cases of the Appellants, as has been directed in para 35 of the judgment of the High Court. All the educational institutions claiming recognition or having any other claims would file their representations together with all supporting documents within three weeks from date. In their applications, the institutions must also give details of the students admitted in each class year-wise. Although from the records, it appears that about 300 schools laid their claims having been recognized which is also evident from the decision of the Cabinet, we are of the opinion that the question as to how many schools fulfil the criteria laid down by the State Government in terms of its policy decision must be considered afresh. As the constitution of the Committee may take some time, such claims may be filed in the office of the Education Secretary, who would open an appropriate cell in this behalf. The committee upon scrutinizing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. Introduction : 2. Imparting of education is a sovereign function of the State. Article 21A of the Constitution of India envisages that children of age group 6 to 14 have a fundamental right of education. Clause 3 of Article 15 of the Constitution envisages special protection and affirmative action for women and children. Policy Decision : 3. Presumably, keeping in view the aforementioned constitutional scheme, a policy decision was adopted by the State to establish Project Schools. The State of Bihar is comparatively considered to be educationally backward. With a view to combat the said problem the State issued a Circular bearing No.1115 dated 27.5.1981 laying down a policy decision therein that in the remaining four years of sixth Five Year Plan period, i.e., from 1981-1982 to 1984-1985 the State should achieve the target of establishment of at least four High Schools, out of which one may be Girls High School in every block. 4. The Circular letter states that according to the information received there are many blocks where less than four schools ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e District Education Officer that looking to the population distance etc. he will propose for establishment of High School at such places where the Government land is easily available so that the expenses to be incurred on purchase of land could be saved. Efforts will be made to obtain the land and building through local efforts. 5. The State Government has also taken a decision that in the year 1981-82 in 7 Districts of Chhotanagpur and Santhal Pargana area in those blocks one Girls High School may be established where already at least 3 boys High Schools are functioning. By doing so target of establishing of at least 4 High Schools in these blocks will be achieved in which there would be at least one Girls High School. For obtaining this target in the area District-wise Girls High Schools will have to be established in following numbers:- Name of District Number of newly established Girls High School: 1. Santhal Pargana 8 2. Ranchi 8 3. Palamu Nil 4. Hazaribagh 5 5. Giridih 2 6. Dhanbad 1 7. Singhbhum 5 Total = 29 6. The District Education Officers were directed to take action for establishment of Girls High Schools. Further decision has been taken by the State that in Santhal Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... level situate in different districts of the State were as under: Darbhanga - 8 Madhubani - 10 Samastipur - 4 Begusarai - 2 Khagaria - 1 Sitamarhi - 1 East Chambaran - 2 West Champaran - 3 Gopalganj - 3 Saran - 4 Muzaffarpur - 3 Purnia - 3 Bhagalpur - 4 Lohardagga - 2 Gumla - 1 Nalanda - 1 Munger - 1 Bhojpur - 2 Santhal Pargana - 2 Palamau - 4 Nawada - 2 Gaya - 4 Aurangabad - 1 Giridih - 1 Singhbhum - 1 Patna - 1 Begusarai - 3 Implementation of the Scheme : 11. It also is not in dispute that a three-man committee constituted for the purpose of identification of the existing schools identified 57 schools. Schools so identified were recognized and the appointments of teachers were made by the Vidyalaya Sewa Board in terms of the aforementioned letter dated 23.2.1985, the relevant clauses whereof are as under: (a) The first preference would be provided in the establishment of schools to the Block head quarters. (b) If there is no Girls School in block then the committee would decide where it would be appropriate to establish schools. (c) Where more than one such schools have been established at the block Headquarter or away then the selection of one school would be made from amongst th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrence of Vidyalaya Sewa Board. (ii) In the aforesaid category of the schools the appointment of the teachers will be made on the basis of the seniority, qualification and utility against the five sanctioned posts in the light of the standard strength as mentioned in para (iii) (iii) The standard strength of teachers in such schools will be like that made under the Govt. Circular No. 705 dated 12.10.1982 and circular No.1027 dated 2.11.1985. (a) Language Group-3 (Hindi-1, English-1 and Sanskrit -1) (b) Humanity Group-3 (Home Science, Geography, Civics, Economics and three in the light of seniority, qualification and utility). (c) Science Group-2 (Math-1, Biology-Chemistry-1) (d) Other teachers-1 (Minority language, Music, Fine Arts, Commerce, Only one in the light of seniority, qualification and utility). 14. For the purpose of appointments of such teachers, a screening committee consisting of the persons named therein was constituted. The age of such trained graduate teachers was to be 31 years while those with M.Ed. degree holders were to have the age limit of 32 years. Clause (3) of the said circular which was basically the subject-matter of the writ petitions before the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of 300 Project Schools during the year 1984-85. (iv) The question as regard recognition and regularization of the services of the teaching and non-teaching staff of the Project Schools which were selected in the year 1984-85 was categorized as under : (a) Sanctioned strength of the teachers in the schools; (b) minimum qualification on the date of the appointment; (c) over age and under age on the date of appointment; (d) degree equivalence; (e) the question with respect to the circular holding the field for recognition/regularization of the service conditions of teaching and non teaching staff of all the schools for the year 1984-85; 18. It was inter alia held : In view of the ambiguity and contradictions contained in clauses (ii) and (iii) of letter No.142 dated 04.02.1989, the staffing pattern of the teachers would constitute 9 posts including the Head Master/Head Mistress as prescribed in the Government Circular No.705 dated 12.10.1982; (ii) In absence of any policy decision of the Government fixing the cut off date for the purpose of possessing minimum qualification, it would not be proper for the State to refuse recognition/regularization of the services of the teachers on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties. In some of the cases State has not been filed counter affidavit perhaps under the impression that once this Court decided the principle then the authority concerned would examine individual cases and dispose it of in the light of the said principle. It was further directed : 36. Accordingly, in the light of the findings recorded above, all the writ applications are disposed of with a direction to the respondent authorities to examine the claim of the petitioners for recognition/absorption of their services in the respective schools. Since these matters continued to remain pending for a long time, final implementation of the directions of this Full Bench should be made within a period of four months from the date of receipt/production of a copy of this judgment before the competent authority. However, in the facts and circumstances of these cases, there shall be no order as to costs. Appeals before this Court : 20. Civil Appeal Nos.6625-6675 of 2001 were filed by the State of Bihar questioning the correctness of the said judgment, whereas Civil Appeal Nos. 6681 6676-78 of 2001 and Civil Appeal Nos.6679-80 of 2001 were filed, inter alia, questioning those parts of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were proposed schools, and those 75 schools would be deemed to have been taken over. (ii) Reliance placed by the Respondent on a letter dated 24.12.1995, whereby certain information was provided to the Vidhan Parishad could not have been the basis for arriving at the finding by the High Court that there was no controversy regarding establishment/take over of 300 schools of 1984-85 Project Scheme. Though a number of schools had been mentioned therein but in terms of the said letter the status of the schools had not been specified and in that view of the matter by reason of the said letter itself, the High Court could not have arrived at a conclusion that those schools had been taken over and the services of the teaching and nonteaching staff stood regularized. The State in its affidavit has categorically stated that the list of the schools was tentative in nature and not final one of taken over schools. (iii) The High Court misread the second counter affidavit filed by the State wherein a list of 300 schools had been mentioned but a perusal thereof would show that 116 schools had not been accorded permission of establishment and the matter relating to recognition of 37 schools was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the fact that the State has the sole jurisdiction to sanction strength of a school wherefor financial stringency may be a relevant factor. In any event, as regularization of the teaching and non-teaching staff was required to be done prospectively, the State had the requisite jurisdiction to lay down the criteria therefor in terms of Government letter dated 04.02.1989. For the said purpose in view of the fact that unqualified and untrained teachers were not entitled to claim regularization the order dated 04.02.1989, would not become retrospective merely because it is drawn on antecedent facts. (vi) The second phase of the schools could not have been given the benefit of the criteria mentioned in the letter dated 2.11.1985, having regard to the fact that the first phase schools were established by the Government; but so far as the second phase schools are concerned, criteria therefor was prescribed for the first time by the Government in terms of the aforementioned circular letter dated 04.02.1989. Since the State was merely to provide salaries to regularized teachers of recognized private schools, it was within the domain of the State to prescribe the strength of the teachers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and taken over in the financial year 1984-85, pursuant whereto an affidavit was filed enclosing a list of such schools. (iii) Such a stand, the State has taken before the Legislative Council, as would appear from the letter dated 26.12.1995. In any event, as the Cabinet itself has taken a decision on 25.01.2000, while implementing a part of the judgment by sanctioning four additional posts of teachers for 300 schools, the said question now does not survive. (iv) In a letter dated 07.12.1994 issued by the Secretary, Education Department, it was observed that 300 Project Schools were selected in the year 1984-85. It was further observed that the scheme is to be implemented from Class VIth to Class Xth wherefor the curriculum of education was also prescribed. It was highlighted that the present sanctioned strength of five teachers was not sufficient. (v) The State of Bihar having framed the aforementioned scheme of establishing girls schools in 435 blocks which were identified where there were no recognized Girls High Schools and in that view of the matter the State Government decided to open altogether 650 Girls High Schools in different blocks during the following financial years : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 to 116 are only proposed schools and have not been accorded the requisite permission of establishment. However, in the third counter affidavit filed in the same writ petition, it has categorically been stated that the said schools have been selected by a three man committee, and that they did not receive the opening permission [provisions of letter No. 142 sated 04.02.1989]. It has been further stated that schools at Sl. Nos. 117 -192 are those schools of 1984-1985 which are run by the Department and in many places the district authorities have appointed clerks and peons. It has also been stated that the schools at S. No. 215 to 230 are those schools whose cases have been disposed of by the Government. A perusal of the said list shows that in these schools approval of services has been given and the said schools have been selected by the District Selection Committee. A screening committee was also constituted for recognition and regularization of services of the teachers belonging to the schools. (viii) Out of the schools which fall within the orbit of proposed schools at Sl. Nos. 1 to 116, there are many schools which have been recognized as valid in terms of the Government le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly been working and the Cabinet directed to release funds, before this Court certain new points are raised to which the State is not entitled to. The State has adopted an inconstant, discriminatory, unjust and arbitrary attitude towards the teachers so far as payment of salaries to them is concerned. The submission that in absence of any legislation, the schools could not be taken over is barred by the principle of equitable estoppel. 31. Mr. Sunil Kumar, the learned counsel appearing on behalf of the Appellants in Civil Appeal Nos.6676-6678 and 6679-6680 of 2001, would submit that those appeals are confined to some portions of the impugned judgment, namely, paragraph nos. 24 to 27 thereof, whereby the benefit of regularization had been denied to such of the teachers of the erstwhile High Schools who were either basic trained or had have their training in Physical Education. It was submitted that the Government has issued several circulars, from a perusal whereof it would appear that the State has equated basic trained teachers as well as those teachers trained in Physical Education with the Bachelors of Education, which has also been noticed by the High Court but it committed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Chhotanagpur and Santhal Pargana regions, more and more schools were sought to be established in other parts of the State as well. The paradigm shift on the part of the State of Bihar in the matter of implementation of scheme did not end there. Only after establishment of 75 schools directly and appointing teaching and non-teaching staff through Vidyalaya Sewa Board, it for reasons undisclosed, intended to give recognition to the private schools. 36. The State in implementation of the scheme failed and/or neglected to adhere to one stand. It although took a categorical stand that Project Schools would not be in the category of nationalized schools or government schools, we do not know on what basis while identifying and selecting private schools for recognition thereof funds were also allotted for construction of the buildings. We, furthermore, fail to understand as to how in the special leave petition it was contended that construction of buildings of 248 schools out of the proposed 300 schools is over. Allocation of fund for construction of school buildings or actual construction thereof does not go with the contention that the private schools were to be recognized. 37. The Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by Government. (D) From S.L. NO.215 to 230 are those project schools of 1984-85 whose cases have been disposed of by the Government. The letter no. and date of each school is mentioned in the chart of AnnexureX/2. 39. From what has been noticed hereinbefore, it is evident that the officer of the State had at different points of time took different stands. We, however, fail to understand as to how 300 Project Girls High Schools could be started when from the materials brought on records, it is evident that a large number of boys schools also were selected for recognition by the 3Man Committee. 40. Although no specific contention has been raised before us, from the circular letter dated 30.03.2004, it appears that an enquiry as regard appointment of teachers of the employees of different categories of schools is being carried out by CBI. We, however, do not intend to make any comment thereupon. 41. It is also of some interest to notice that whereas emphasis was laid on spreading of education amongst women by establishing at least one Girls High Schools school in each identified block, for all intent and purport a shift was made towards Boys High Schools. 42. On the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same. The dispute in this behalf does not revolve round the question of regularization of the services of teaching and non-teaching staff of the schools who were thithertobefore appointed by Management of Private schools. Had the legislature of the State of Bihar made an enactment nationalizing the schools like Bihar Non-Government Elementary Schools Taking over Control Act, 1976 the terms and conditions for taking over of the services of the teaching and non-teaching staff could have been laid down therein so that as and from the appointed day specified therein the teaching and non-teaching staff in stead of continuing in the services all the Managing Committee of the School would have become government servants. In this view of the matter, in absence of any policy decision of the State it cannot be said that the services of the teachers had been taken over, whether along with properties of the schools or not, so as to enable the courts of law to arrive at a definite conclusion that the teaching and non-teaching staff for all intent and purport have become the employees of the State. 46. It is one thing to say that the Management of the school has been taken over together with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified therein or more, name of schools can be as per his choice. The list of the schools shown to us discloses that there are such schools which were named after somebody. But most of schools were shown as Project Schools. If a school has been established as a Project School without the name of the erstwhile school or without the name of the school as per the choice of the donor, in terms of the policy decision of the State it would have been expected that the number of such schools would have been much more. It is curious to not that even in relation to a large number of schools mentioned by the Director of Education in his response to the questions which were placed before the Bihar Vidhan Sabha it was remarked that certain schools were still to be identified or their identity is not known or building was to yet be constructed. The question as to how a school could be taken over where the identity of the land is not known or where no building is in existence. On what basis this assumes significance, the three men Committee could identify such schools is left to one s imagination. Number of Schools : 49. There is no dispute about 150 schools. Various documents as also the aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sanctioned. It has not been disputed that in the High Schools in question students are taught from class VI to X, i.e., five classes. It has also not been disputed that every subject has been categorized in three groups, viz. language groups, humanity group and science group and other teachers were to be appointed accordingly. 54. The State is no doubt entitled to lay down qualification or sanction the requisite number of posts. It may also in certain situations provide for relaxation therefrom or lay down such terms and conditions as they may deem fit and proper. It is also permissible for the State to appoint a screening committee for the purpose of finding out whether the teachers satisfy the requirements laid down therein. The State is also entitled to fix the age limit of such teachers. How many teachers were required to be appointed and strength of the teaching staff and the non-teaching staff again is a mater of policy decision of the State. Indisputably, if somebody has any say in this behalf it will be the Bihar Senior School Education Board, a statutory authority who is statutorily enjoined to lay down the criteria for the purpose of recognition of said schools by it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chools sought to be established by the State, the purpose of establishing more schools would not have been achieved. It was in that sense that the State thought of granting recognition of such schools which were yet to be established, but local resources, like land, building etc. could be properly utilized as a result whereof the expenditure on the part of the State would be minimal. However, in the event, such schools having prior permission for establishment are not available, then the District Education Officer were asked to select such places where the Government land were easily available so that expenses to be incurred on purchase/acquisition of land could be saved. 58. Reliance has been placed on paragraph 11 of the said letter for showing that the Government intended to take over the existing High Schools. The said paragraph contemplates establishment of 33 Girls High Schools in 15 districts, where at least 4 Boys High Schools are functioning. The sentence The selection of the above High Schools will be made by the District Education Officers as mentioned in para 4 would not mean that some schools which had already been functioning were required to be taken over. The deviat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereign State, through its regular agencies, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the State including private property without its owner s consent on account of public exigency and for the public good. Eminent domain is the highest and most exact idea of property remaining in the Government, or in the aggregate body of the people in their sovereign capacity. It gives the right to resume possession of the property in the manner directed by the Constitution and the laws of the State, whenever the public interest requires it. The term expropriation is practically synonymous with the term eminent domain. 62. In Bishambhar Dayal (supra) this Court held that seizure of the food stuff in terms of an order made under Section 3 of the Essential Commodities Act, 1955 would not be hit by Article 300-A of the Constitution of India but categorically stated that such a course could not have been taken under Article 162 of the Constitution of India, in the following terms : There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300-A provides that no person shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already in existence and that the powers of the executive are limited merely to the carrying out of these laws. 66. The said decision, however, was distinguished by this Court in Thakur Bharat Singh (supra), stating that the executive action which was upheld therein was although not supported by legislation, but it did not operate to prejudice of any citizen. It was categorically held : All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and exclusive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. Our federal structure is founded on certain fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to scrutinize as to whether the teaching and non-teaching staff appointed for the said purpose fulfill the criteria in terms of the policy decision of the State or not. Their qualifications laid down under other relevant statutes for the purpose of obtaining permission must also be scrutinized. 72. We do not find any merit in the contention raised by the learned counsel appearing on behalf of the Respondents that the principle of equitable estoppel would apply against the State of Bihar. It is now well known, the rule of estoppel has no application where contention as regard constitutional provision or a statute is raised. The right of the State to raise a question as regard its actions being invalid under the constitutional scheme of India is now well recognized. If by reason of a constitutional provision, its action cannot be supported or the State intends to withdraw or modify a policy decision, no exception thereto can be taken. It is, however, one thing to say that such an action is required to be judged having regard to the fundamental rights of a citizen but it is another thing to say that by applying the rule of estoppel, the State would not permitted to raise the said qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the institutions must also give details of the students admitted in each class year-wise. 80. Although from the records, it appears that about 300 schools laid their claims having been recognized which is also evident from the decision of the Cabinet, we are of the opinion that the question as to how many schools fulfil the criteria laid down by the State Government in terms of its policy decision must be considered afresh. 81. As the constitution of the Committee may take some time, such claims may be filed in the office of the Education Secretary, who would open an appropriate cell in this behalf. The committee upon scrutinizing the claims of the institutions and/or the teaching and non-teaching staff would submit a report before the Chief Secretary within three months. 82. The Chief Secretary is requested to place the said report together with his comments thereupon before the appropriate authority in terms of the Rules of Executive Business and it is expected that the said authority of the Government of Bihar shall take appropriate decision thereupon within four months from date. 83. We would appreciate, if the State Government takes suitable action against those who may be f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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