http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 23

CASE NO.:

Appeal (civil) 6626-6675 of 2001

PETITIONER:

State of Bihar & Ors.

RESPONDENT:

Project Uchcha Vidya, Sikshak Sangh & Ors.

DATE OF JUDGMENT: 03/01/2006

BENCH:

S.B. Sinha & P.P. Naolkar

JUDGMENT:

J U D G M E N T

W I T H

CIVIL APPEAL NOS. 6676-6681 OF 2001

S.B. SINHA, J :

These Appeals involving common questions of law and fact were

taken up for hearing together and are being disposed of by this common

judgment.

Introduction :

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 :

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.

The Circular letter states that according to the information received

there are many blocks where less than four schools are functioning. Out of

587 blocks of the State 435 blocks were identified where even a single Girls

High School was not recognized. The proposed numbers of schools which

were to be opened are as under :

1981-82 150

1982-83 200

1983-84 200

1984-85 100

Total 650

The districts of Santhal Pargana and Chhotanagpur which were thence

part of the State of Bihar and now part of the State of Jharkhand were to be

given priority as the said areas in educational spheres were found to be

comparatively more backward. In seven districts of the said areas, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 23

Government proposed to establish 299 new High Schools in 1981-82 in each

block of the said area. As it was found difficult to attain the target of

establishment of minimum four High Schools, it was observed that even if

four High Schools are established, the students for so many schools may not

be found. In the said areas, therefore two High Schools were proposed to be

definitely established in the following terms:

"1. Santhal Pargana 15

2. Ranchi 9

3. Palamu 9

4. Hazaribagh 13

5. Giridih 4

6. Dhanbad 2

7. Singhbhum 13

Total 65"

It was further laid down therein that :

"4. It is expected from the District Education Officer

posted in Chhotanagpur and Santhal Pargana area that

they will prepare the list of such blocks of their District

immediately where there are less than 2 (Two) High

Schools and will make such arrangement that in the

present financial year i.e. 1981-82 in their district at least

two High Schools may be established. At the time of

preparing proposal for establishment of new High

Schools priority will be given to those High Schools

which are granted permission for establishment proposed

High Schools and efforts will be made that getting all the

conditions regarding recognition completed from those

High Schools, which are accorded permission for

establishment proposed High Schools only they should

be granted recognition. By doing so at least

establishment of two High Schools could be obtained

without delay. On one hand where the High Schools are

accorded permission for establishment proposed High

Schools will get recognition on the other hand the local

resources like land, building etc. could also properly be

used and the Government would get a big amount as

subscription. If in any block then may not be schools

which fine granted permission for establishment

proposed High School, then it is expected from the

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 23

3. Palamu Nil

4. Hazaribagh 5

5. Giridih 2

6. Dhanbad 1

7. Singhbhum 5

Total = 29"

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 Pargana and Chhotanagpur areas, 14 other High

Schools may also be established. In such blocks where at least two High

Schools are already functioning and where the local officer thinks it

necessary to establish new schools on the basis of population, area of the

block such High Schools were to be Boys High Schools in the following

terms:

1. Santhal Pargana 4

2. Ranchi 3

3. Palamu 2

4. Hazaribagh 1

5. Giridih 1

6. Dhanbad 1

7. Singhbhum 1

Total = 14

Para 8 of the said Circular letter states that in the year 1981-82, 108

High Schools in Santhal Pargana and Chhotanagpur areas could be

established, out of which 79 High Schools were for the boys and 29 High

Schools were for the girls.

Further, a policy decision which was taken in relation to the areas

falling outside Santhal Pargana and Chhotanagpur, it was directed:-

"Outside Chhotnagpur and Santhal Pargana in

other areas of the State even now there are some such

blocks where there is not even a single High School or

the number of schools is less than 2 in each block.

Therefore the State Government has also taken a decision

that in the year 1981-82 in other area of the State, the

following number of High Schools will be established

district-wise:

Number of District Number of Boys Schools to be

newly established

1. Rohtas 2

2. Bhagalpur 1

3. Purnia 2

4. Saharsa 1

5. W. Champaran 2

6. East Champaran 1

Total = 9"

33 Girls High Schools were also proposed to be established in areas

other than Santhal Pargana and Chhotanagpur where at least Boys High

Schools are functioning. It was directed that the target of the establishment

of 150 High Schools was definitely to be achieved by the end of the year

1981-82. By a Circular letter dated 3.9.1981 a decision was taken to

establish 150 schools in the year 1981-82 whereby the District Education

Officers were directed to select the place with the sanction of the Regional

Director of Education and obtain approval of the Government.

Yet again in another Circular dated 21.2.1982, the mode and manner

of appointment as also the requisite qualification for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 23

recognition/regularization of services of teachers of the Project Schools were

laid down wherefor Rs. 1.5 crores was earmarked for construction of

building etc.

It is not in dispute that during 1981-82, 150 schools were established.

According to the State, the number of such schools which were established

in the first 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 :

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 them on the basis of the date of

permission given by the State Government for

establishment of such schools and superiority (sic)

of physical resources of the school.

(d) Where a school established by public initiative is

taken under the project then the teachers therein

would be appointed by the Vidyalaya Sewa

Board."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 23

On or about 4.2.1989, a circular was issued for appointment of a

competent and qualified working teaching and non-teaching staff of such

schools. Those schools were not to be treated in the category of

nationalized schools for management purposes and a formal notification was

to be issued declaring control of management of such schools by the

Government. In private schools teachers were to be appointed by Vidyalaya

Sewa Board. There appears to be some dispute as a three-man Committee

selected and recommended for bringing them within the Project Schools.

Whereas, according to the State 57 schools were recommended, the

respondents contend that in fact 225 of such schools were recommended.

The contention of the State is that 75 schools selected by the Government

directly and 57 schools recommended by the Committee were all private

schools and had not been established with Government funds.

It is also not in dispute that despite the fact such schools stood

recognized in the year 1985; qualifications for teachers and strength thereof

was prescribed by a Government letter dated 04.02.1989, the relevant

clauses whereof are as under :

"(i) Such persons will be appointed as teachers in

Government Service who fulfill the following

qualification the schools should have been opened

with public co-operation and should have been

selected by three men committee as prescribed in

department letter No.142 dated 23.2.1985 and

which should have obtained the permission of

establishment from the Madhyamik Shiksha

Karalaya and whose students should have been

registered and set up from the school itself for the

examination conducted by Bihar School

Examination Board and the result of such student

appearing for the Biahr Secondary Examination

should have been published in the name of school

itself who should be appointed in the sanctioned

strength by the Managing Committee and possess

the requisite qualification and competitive for

appointment and should possess utility certificate

for the subject in the Girl High school for that very

subject and have got the concurrence 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)."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 23

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 Court reads as under :

"3. The services of only such teachers will be

considered for recognition who are currently

working and who are appointed by the managing

committee prior to the date of permission of

establishment or selection by Head quarter or the

date of election by the Competent committee at

district level."

5 sanctioned posts for the said schools were prescribed. According to

the State in terms of the said 1989 circular letter, 56 schools having been

recognized, salary was being paid to the teachers thereof. However, out of

the said 56 schools, 4 schools are said to be now in the State of Jharkhand.

Writ Proceedings :

Teaching and non-teaching staff of several schools filed a large

number of writ petitions before the Patna High Court during the period

between 1992 and 1997, inter alia, contending that said circular letter dated

04.02.1989 is arbitrary and discriminatory. In the said writ petitions,

directions were sought for payment of salaries to the teaching and non

teaching staff of 300 schools, purported to have been selected in terms of the

Government letter dated 12.02.1985 and 23.02.1985. Different orders were

passed in the said writ petitions, some of which were conflicting with

others.. The matter ultimately reached this Court. This Court by an order

dated 23.07.1997 passed in Civil Appeal No.10245 of 1996.and connected

matters, having regard to such conflicting decisions, opined that the matter

should be resolved by a Full Bench of the Patna High Court.

Findings of the High Court :

A Full Bench of the Patna High Court was, pursuant to the said

direction, constituted and by reason of the impugned judgment dated

07.12.1999, it was held :

(i) Establishment/take over of the schools in question was

continuous process under the scheme framed in terms of the Government

letter dated 27.05.1981 and it constituted a single transaction so as to avoid

any discrimination amongst the students of one area with that of another

area.

(ii) The provisions governing the recognition/regularization of the

services of the teachers and payment of their salaries in respect of Project

Schools of 1981-82 would also apply to the schools selected during 1984-85.

(iii) In view of the unambiguous stand of the State before the High

Court, the process of selection was completed in the year 1986 and there

remains no controversy as regard establishment or selection 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 23

for recognition/regularization of the service conditions of

teaching and non teaching staff of all the schools for the

year 1984-85;

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 the ground that at the time of their

appointments by the Managing Committee of the respective schools, they

were not trained graduates; (iii) The qualifying age for teachers of Project

Schools of general category would be 31 years on the date of their

appointment by respective Managing Committee of the schools; having

regard to the fact that the teachers had continuously been working in the

schools for more than 17 years, they were entitled for

regularization/recognition of their services within the staffing pattern; (iv)

The minimum qualifying age for appointment was 18 years; (v) The

qualification of possessing a certificate of B.T. is not at par with B.Ed., since

any person having passed matriculation examination may appear at the B.T.

examination conducted by the Secondary School Examination Board and

can get a certificate, whereas a person is not entitled to get a degree of B.Ed.

unless he or she is a graduate. It will, however, be open to the authorities of

the State Government to consider as to whether B.T. certificate can be

equated with that of B.Ed. qualification or qualification of diploma in

education.; (vi) The provisions of Circulate letter No.142 dated 04.02.1989

cannot be applied retrospectively, as the State is not empowered to alter or

modify any circular with retrospective effect to the prejudice of the rights of

the Government servants; (vii) The provisions governing

recognition/regularization of the services of the teachers and payment of

their salaries in respect of Project Schools of 1981-82 would also apply to

the case of schools selected during 1984-85.

The Full Bench, however, was of the opinion that as it was constituted

to examine the broad proposition regarding the scope and applicability of

different circulars issued by the State in the matter relating to

implementation of the scheme in question and the service conditions of the

teaching and non-teaching staff qua their eligibility, qualification, suitability

etc., for the purpose of regularization/recognition of the service in the

Project Schools, individual cases have to be examined by the authorities of

the State in terms of its findings, stating :

"\005Individual cases of the petitioners of course, shall be

examined by the respondent authorities in terms of the

findings of this Full Bench in these cases, as we have not

been posted with the facts in detail by the respective

parties. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 23

competent authority. However, in the facts and

circumstances of these cases, there shall be no order as to

costs."

Appeals before this Court :

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 which were in favour of

the State.

Subsequent events :

Before adverting to the questions raised in these appeals, we would,

however, notice subsequent events which are relevant for the purpose of

decision in the instant case.

After the State of Bihar filed these special leave petitions, the question

as regard implementation of the impugned judgment came up for

consideration before the Cabinet. On or about 25.01.2000, the Cabinet took

a decision to create 4 additional posts of Assistant Teachers in the said 300

schools, totaling 1200 teachers which were purported to have been

selected/taken over in the year 1984-85. It sanctioned annual expenditure of

Rs.11,26,80,000/- for payment of salaries of teachers against the 9

sanctioned posts of 300 Project Schools.

On or about 20.11.2000, the State of Bihar has been bifurcated in two

States i.e. the State of Bihar and the State of Jharkhand. According to the

Respondents, out of 300 Project Girls High Schools selected/taken over in

the financial year 1984-85, 211 fell within the jurisdiction of the State of

Bihar and 89 had gone within the jurisdiction of the State of Jharkhand.

By a letter 04.08.2003, the State sought to recognize 151 out of 211

Project Girls High Schools falling under the jurisdiction of the State of Bihar

as genuine.

By a letter dated 30.03.2004, it was laid down :

"An enquiry is going on in respect of the

appointment of the teachers of the employees of different

categories by the C.B.I. In view of a writ application

bearing CWJC No.9847/98 filed in the Hon'ble High

Court, Patna. If the appointment of any employees is

found illegal after enquiry, salary already paid, will be

recovered at a time after canceling his appointment."

The Government of Bihar approved the continuance of the

functioning of the Project Schools falling within the jurisdiction of the State

Submissions :

On behalf of the State :

Mr. Rakesh Dwivedi, the learned Senior Counsel appearing on behalf

of the State of Bihar, submitted :

(i) The High Court committed a manifest error in arriving at a

conclusion that the State had taken over 300 schools as Project Schools in

the year 1984-85, although , in fact only 132 schools were taken over. Our

attention, in this behalf, has been drawn to the counter affidavit filed by the

teachers who were said to have admitted that except 75 selected schools, the

others were proposed schools, and those 75 schools would be deemed to

have been taken over.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 23

(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 non-

teaching 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

pending consideration. The status of other schools had also been shown

individually which would show that in some cases, the sites were disputed,

some were under consideration and yet in some others screening had not

been done, and buildings had not been constructed, or project report was not

available or land was not available. Furthermore, some recommendations in

relation to some schools had been rejected. In view of the stand taken by the

State in the second counter affidavit, there is absolutely no doubt that 153

schools had not been recognized or taken over.

(iv) The expression 'take over" was loosely used, as having regard to

the provisions contained in Article 300A of the Constitution of India, no

property can be taken over or acquired except by an appropriate legislation.

Reliance, in this behalf, has been placed on Bishambhar Dayal Chandra

Mohan & Ors. etc. v. State of U.P. & Ors. etc. [(1982) 1 SCC 39] and

Jilubhai Nanbhai Khachar & Ors. v. State of Gujarat & Anr. [(1995) 1 Supp.

596]. Whenever the State intended to take over the schools it had passed

enactments, as for example, Bihar Non-gazetted Educational Institutions

"Taking Over" Act, 1988 and the Bihar Non Government Elementary

School "Taking Over of Control" Act, 1976.

Referring to a decision of this Court in State of Madhya Pradesh &

Anr. v. Thakur Bharat Singh [AIR 1967 SC 1170 : 1967 (2) SCR 454], Mr.

Dwivedi would submit that an administrative order having civil

consequences must be supported by law.

(v) As regard the issue pertaining to the competence of the State to

lay down qualification/criteria for the 2nd phase of schools which is the

subject-matter of the aforementioned circular letter dated 04.02.1989, by

reason thereof, not only the strength of the teachers was confined to 5, but as

the educational qualifications were prescribed thereby the same must be held

to have been given retrospective effect. Only because the strength of 9

teachers was fixed for the first phase of schools by the Government, the

same would not mean that in relation to the schools set up during the second

phase by private persons, identical standard was automatically required to be

maintained. Although the State Government by an order dated 25.01.2000

sanctioned additional posts for approved schools, it may be necessary to

consider the question about the correctness of the impugned judgment on a

legal principle, having regard 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 23

(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.

If the private schools wanted to have more staff, salaries to such surplus staff

were required to be paid by them from its own funds.

(vii) In a matter of this nature, it was argued, Article 14 of the

Constitution of India will have no application, inasmuch as the State is not

bound to provide salaries to all teachers or to provide a common strength of

teachers for private schools.

On behalf of the Schools/Teaching and non-teaching Staff :

Mr. P.S. Mishra, the learned Senior Counsel, appearing on behalf of

the Respondents in some of the matters, on the other hand, would submit :

(i) The fact that 300 Project Schools were selected during 1984-85 is

beyond any pale of doubt or dispute. The status of the said schools can be

enumerated in the following categories :

(a) Schools established through public assistance but directly

selected by Government, like 75 schools established and taken

over from the date of issuance of letter No.108 dated 12.2.85.

(b) Schools established by public assistance but recommended by

three Man Committee in terms of letter No.142 dated 23.2.85 to

be taken over as Project School from the date of such

recommendation. Reliance in this behalf is placed on Annexure

R-1 (Colly) of I.A. No.114-130 of 2001 at Page 23 to Page 64.

(c) The schools as enumerated in category (a) and (b) as stated

above are covered by one nomenclature, i.e. Project Schools.

These schools are not like Zila Schools (Government Schools)

or nationalized schools because it has been established/selected

by Government under a scheme, aimed to provide at least four

Secondary/High Schools out of which one must be Girls

School. These schools as per Government scheme have been

established in most cases by taking over private schools which

have been either granted permission for establishment or was at

least proposed schools.

(ii) Having accepted before the Full Bench that the process of

selection of all schools was completed in the year 1986 on the basis of

recommendations of a three-man Committee, the State cannot now take a

different stand. In any event, the State has accepted in several documents

that a number of Project Schools were taken over. Our attention has further

been drawn to the fact that during the pendency of the writ petitions, a

direction was issued by the High Court to the Secretary to file a list of 300

Project Girls High Schools, which were selected 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 23

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 :

"Year No. of Blocks

1981-82 150

1982-83 200

1983-84 200

1984-85 100"

150 schools were established in the year 1981-82. However, no such

Girls schools were established in the year 1982-83 and, thus, by reason of

the aforementioned circular letter dated 25.01.1985, a decision had been

taken to open 300 schools in different blocks. Initially by a letter dated

12.02.1985, 75 schools in different blocks and districts were selected

followed by letter no.142 dated 23.02.1985, in terms whereof it was decided

to select 225 schools established by public assistance after necessary

recommendation of the three-man Committee. During the said year,

therefore, 300 schools were established. There are several other documents

to show that the stand taken herein by the State as regard the number of

schools is not correct.

(vi) It is not a case where the property belonging to the schools had

been taken over. In view of the fact that such take over was by reason of an

agreement between the parties, it is permissible for the State to do so in

terms of Article 162 of the Constitution of India. The executive power can

be exercised to supplement the legislative power and if no legislation is

operating in the field, such executive powers which are implied, ancillary or

inherent would include such powers which are required to carry into effect

the aims and objects of the Constitution.

The primary duty of the executive is to take stock of the educational

needs of the people in the State, in absence of any statute operating in the

field it, in furtherance of the said object, can issue necessary circulars, which

cannot be said to be invalid in law as lacking legislative sanction. The stand

of the State, that the list of 300 schools submitted to the legislative council

was tentative in nature, was incorrect as would appear from the office order

dated 22.10.1999 wherein it had treated the said list to be final and on the

basis whereof the services of the teaching and non-teaching staff of the

Project Girls High Schools at Guthani, District Siwan had been regularized.

Even the Headmistresses had been appointed in 224 Project Schools, as

would appear from a letter dated 02.10.1988, wherefor funds had been

sanctioned for their pay and allowances.

(vii) A bare perusal of the second counter affidavit affirmed by Shri

M.K. Agarwal in C.W.J.C. No.12326 of 1992, would show that the schools

in Sl. Nos. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 23

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 letter dated 04.08.2003.

(ix) In ground 'F' of the Special Leave Petition filed by the State, it

has admitted that the construction of buildings of 248 schools have been

completed. In view of the admitted position as regard selection of schools,

the High Court was not called upon to consider the validity of the decision

of the Government to take over/selection of particular Project Schools and,

thus, the State should not be permitted to raise the said question at this state.

Mr. Ravindra Shrivastava, the learned Senior Counsel appearing on

behalf of the Respondents in Civil Appeal Nos.6626-6675 of 2001,

supplemented the submissions of Mr. Mishra, urging that as the Full Bench

was called upon to decide the broad and general proposition as regard the

question of absorption of the second phase schools comprising 300 taken

over schools, no decision from the High Court was invited as regard validity

of the taken over thereof and, thus, they should not be permitted to raise the

said contention before this Court for the first time.

Our attention, in this behalf, has been drawn to the following

statements made in the Counter Affidavit filed in CWJC No.12326 of 1992 :

"That it is submitted that the list of Project Schools

in the second phase number 304 and the excess of four

such project schools is due to the fact that four of them

were later on added by specific Government order."

Our attention has further been drawn to the second supplementary

counter affidavit wherein the following statements have been made :

"a) Those schools established with public assistance

but directly selected by Government will be

deemed to be taken over schools on and from the

date of issuance of such a letter.

b) Those schools established with public assistance

but recommended by three man committee

consisting of District Magistrate, DDO, DEO vide

letter No.142 dated 23.2.1985 will be deemed to be

taken over school on and from the date of an

issuance of such letter in favor of the school

concerned."

It was submitted on the basis thereof that no difference now exists in

the status of the two categories of schools. In any event, having regard to

the decision of the Cabinet to sanction four additional posts in each of the

300 Project Schools, the State must be deemed to have accepted the factum

of taking over of the said number of schools. Despite the fact that the

teachers had continuously 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 23

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 error in arriving at a finding that whereas such

equivalence may be applicable in relation to the appointments of teachers of

High Schools which were under private management, but such equivalence

would not apply to Project Schools.

It was submitted that having regard to the fact that teachers of

Physical Education as well as teachers who were basic trained having been

held to possess requisite qualification for appointments in High Schools

when the same had been taken over as Project Schools by the State, there

cannot be any reason for not recognizing their services on the said basis.

Mr. Shrivastava appearing in Civil Appeal No. 6681 of 2001 would

submit that the Appellant therein was a clerk who was appointed in the

school when he was below 18 years of age by the Managing Committee of

the school. Although his services were regularized and his salary was paid

subject to the decision of this case, the Appellant is highly prejudiced by

that part of the judgment of the High Court whereby minimum age for

appointment had been taken to be 18 years. The learned counsel submitted

that it would prove to be harsh, if his services are not directed to be

regularized.

Analysis :

The State framed the scheme in question having constitutional goal in

mind. Imparting education is the primary duty of the State. Although

establishment of High Schools may not be a constitutional function in the

sense that citizens of India above 14 years might not have any fundamental

right in relation thereto but education as a part of human development,

indisputably is a human right. The framers while providing for equality

clause under the constitutional scheme had in their mind that women and

children require special treatment and only in that view of the matter,

protective discrimination and affirmative action were contemplated in terms

of clause (3) of Article 15 of the Constitution of India.

In this case, however, the shifting of stand by the State of Bihar is

apparent. Whereas the main scheme framed in the year 1981 postulated

establishment of schools by itself and that too in the most backward areas of

the then State of Bihar, namely, Chhotanagpur and Santhal Pargana, the

facts noticed hereinbefore clearly show that the main purpose for which the

said scheme was formulated had been greatly deviated from. In stead and

place of establishing more and more girls' schools in 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.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 23

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.

The State of Bihar, thus, took different stands at different point of

time. We have, therefore, not been given a clear picture as to how many

schools were constructed by the State itself or how many of them had been

constructed with public assistance and/or how many of the schools were

identified and proposed to be recognized/taken over. The Respondents,

however, point out that in a meeting of the Administrative Post Sanction

Committee held on 10.07.1995 under the chairmanship of the Chief

Secretary, Government of Bihar, a decision was taken to call for a list of 300

Project Girls High Schools. A list of the said schools pursuant thereto was

said to have been sent by the Director, Secondary Education, to the

Secretary, Administrative Post Sanction Committee, Bihar. In response to a

query, a list of 300 Project Girls High Schools was sent to the Bihar

Legislative Council. However, therein also certain schools were stated to be

under construction. From the said letter of the Director dated 26.12.1995, it

does not appear that all the schools were functioning. The Secretary of the

Department of Education, however, at the instance of the High Court filed

an affidavit in CWJC No.12326 of 1992, wherein existence of 300 Project

High Schools was accepted.

Moreover, in the second counter affidavit affirmed by Shri M.K.

Agarwal, filed in CWJC No.12326 of 1992, it was stated that the schools at

Sl. No. 1 to 116 are those schools which are proposed schools and have not

been accorded permission for establishment. However, in the third counter

affidavit, it has been stated :

"(A) S.L. No.1 to 116 are those Project Schools of 1984-

85 which have not received the permission of

establishment by the Director, Secondary Education,

Budh Marg, Patna. These schools were selected by three

man committee but did not receive opening permission

by the Director, Secondary Education within the

provision of letter No. 142 dated 4.2.1989.

(B) S.L. No.117 to 192 are those Project Schools of

1984-85 which are run by the Department on the basis of

deputation of teachers from nationalized High Schools.

In many places the District Authorities of the department

have appointed clerks and peons whose number is yet to

be ascertained from the D.E.O.'s of respective Districts.

(C) S.L. No.193 to 214 are those project schools of 1984-

85 whose cases are under consideration either by the

Screening Committee or 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."

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 3-

Man Committee.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 23

comment thereupon.

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.

On the other hand, the consistent stand of the State before the High

Court as also before us was that the three-man Committee was appointed for

the purpose of identification of such schools which were situated in various

blocks. For what precise reason is the bone of contention between the

parties, namely whether they are to be recognized or the schools were to be

taken over lock stock and barrel; whether management continues to be in the

private hands and the State only intended to pay salaries of teachers; whether

5 or 9 posts in the Project Schools recognized; or whether the management

of such schools had also been taken over. Whether the properties belonging

to the Managing Committee of the erstwhile schools vested in the State of

Bihar one way or the other is not known. It is also not known, as to what

extent, if any, there had been public participation in the establishment of the

schools, viz. how the land of the schools was donated; who constructed the

buildings; or how the Managing Committee of such schools was constituted.

If it is a case of taking over of the schools, in the absence of a legislation, the

right, title and interest of the erstwhile proprietary of the school and/or

Managing Committee did not vest in the State.

We have not been apprised as to whether any agreement as such had

been entered into by and between the Managing Committee of the erstwhile

schools and the three-man Committee headed by the Collector of the district.

We also fail to understand that if the process of selection was completed in

the year 1986, as urged by Mr. Mishra, how those schools could be taken

over in 1984-85.

Take over or Regularization of the Services :

So far as taking over of the services of the teaching and non-teaching

staff of the Project Schools is concerned, even the same is surrounded by

mystery. Counsel appearing on behalf of the Respondents had

unequivocally stated that the services of the teaching and non-teaching staff

had been regularized. The expression 'regularization' has a definite

connotation. Regularization of services 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. [See State of UP v. Neeraj Awasthi \026 2005

(10) SCALE 286]

The concept of regularization pre-supposes irregular appointment at

the first instance so as to enable the employer to regularize the 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.

It is one thing to say that the Management of the school has been

taken over together with the services of the teaching and non-teaching staff

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 23

and it is another thing to say that the State has recognized the schools and is

bound to pay the salary and such teaching and non-teaching staff on the

same scale and pay as it has been paying to its own teachers. In case of

nationalization of schools, furthermore in terms of the provisions of the

Statute itself, the educational or qualification as also other qualifications for

taking over the services of the teachers would be laid down. In absence of

any such legislation, it was expected of the State to lay down such criteria in

clear terms by way of policy decision or guidelines not only for the purpose

of letting the teachers know as to where they stand but also for the purpose

of determining as to whether such teachers are available in the schools who

are entitled to salaries and other emoluments payable to them by the State.

If new schools were established, indisputably teaching and non-teaching

staff thereof were required to be appointed through Vidyalaya Sewa Board

in conformity with the existing rules as well as Articles 14 and 16 of the

Constitution of India. It is, thus, not a case where the concept of

regularization could have been invoked.

Three-men Committee :

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 non-

teaching 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.

Public Participation :

In the matter of schools which were said to have been established by

way of public participation, things are no better. The Circular letter except

mentioning that such schools can be established also by public participation

did not indicate as to what were the roles to be played by the members of

public. Did the said public participation mean gift of land or construction of

building or any donation of a large sum by some of them? The Circular

letter merely suggest that if some persons donate a land 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 :

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 said schools were appointed by

Vidyala Sewa Board, but the documents produced and the affidavits

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 23

affirmed by the parties point out 300 schools. We have noticed some

discrepancies hereinbefore to show that the number of the schools

mentioned by either side may not be entirely correct but the fact remains that

before the Cabinet also, a representation was made by the authorities of the

State themselves that 300 schools are in place. It is only on that basis the

Cabinet sanctioned 1200 more posts.

Circular letter dated 23.02.1985 :

The said circular letter shows that the Government had selected 75

Girls High Schools in each of the 700 blocks out of the selection of 300

blocks. A list thereof was attached therewith. According to the respondent

even in this category there were both the categories of schools which were

either taken over and selected by the Government and those which were

proposed to be established as Project Schools. It is stated in the said letter

that for the selection of the schools in the rest of the blocks and where the

schools have not by them been established for the selection of site for the

purpose of construction of building three men committees are constituted.

Paragraph 2 of the said letter laid down the mode and manner of

implementation thereof. An annexure appended thereto shows the name of

the schools and the dates of recognition of the three men committee.

Circular letter dated 4.2.1989

We have noticed that there is no dispute that in the years 1982-83 and

1983-84, no school was recognized or established. We have also noticed

hereinbefore that one of the conditions for recognition was that the teachers

were required to be appointed by the Vidyala Sewa Board. In the

aforementioned context, the letter dated 4.2.1989 is required to be

considered for the purpose of this case.

Whereas in respect of the schools established by the State 9 posts

were sanctioned for the schools which were selected for recognition / taken

over through the agency of the three men committee, only 5 posts were

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.

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. But for all intent and purport

this issue has become academic. In view of the fact that the State itself has

realized the difficulty which the schools would face if only 5 posts are

sanctioned in each school. The Cabinet itself realized that like any school

run by the Government, it is necessary to have at least 9 teachers even in the

project schools. The strength of the teachers for such schools has not only

been sanctioned, sanction therefor was given with retrospective effect and

retroactive operation. Necessary funds were allocated for the said purpose.

Although, thus, it was the prerogative of the State to lay down the criteria,

the same has been laid down. Therefore, correctness or otherwise of the

finding of the High Court that the State was bound to recognize at least 9

teachers in each school, for all intent and purport is now academic.

It is furthermore not in dispute that the State for the first time in its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 23

letter dated 04.02.1989 laid down the qualifications for the teachers as also

the strength thereof.

The validity and/or legality of the said Government order dated

04.02.1989 was questioned before the High Court. The High Court, as

noticed supra set aside the said directions holding that 9 teachers were

required to be appointed in each of the 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.

Deviation :

However, deviation as regard implementation of the original scheme

in the second phase is explicit. The circular letter dated 27.05.1981 must be

read as a whole. By reason of the said circular letter 650 schools were to be

established in the entire State including Chhotanagpur and Santhal Pargana,

which now forms part of the State of Jharkhand. It has clearly been stated

that at the time of preparing proposal for establishment of new High Schools

priority was to be given to those High Schools which were granted

permission for establishment for proposed High Schools and efforts were to

be made that getting all the conditions regarding recognition completed from

those High Schools. What was, however, emphasized was that schools in

respect whereof prior permission was obtained and not of those schools

which had already been functioning. If the schools had already been

functioning, in excess of the number of schools 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.

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 deviation from the prescribed policy of the State, however, started

in the year 1982. The letter dated 12.10.1982 does not appear to be very

clear. Whereas Rs.1.5 crores had been sanctioned for construction of the

building , teaching aids, learning materials and establishment cost of the

school, but then it is beyond anybody's comprehension as to how the District

Education Officers were directed to inspect these schools and to issue

notification formally taking over their management and control as a result

whereof the same would vest in the State Government. The said para does

not appear to be in consonance with the main para as in terms thereof, the

State Government intended to open 78 schools in TSP area and 72 schools

in non-sub plan area. The other parts of the said circular letter also are not in

consonance with the first para thereof but paras 2, 5 and 10 , if read

conjointly, give an impression that the Government intended to recognize

some schools also. Para 10 of the said letter, however, is in two parts,

namely, (i) ad hoc teachers would be appointed so as to avoid unnecessary

delay in appointing regular teachers; and (ii) a committee headed by RDE

will interview the teachers appointed by the previous management

committee of the school without advertisement, which would mean that such

teachers may also be appointed on an ad hoc basis.

We, however, fail to understand as to how by reason of the said

circular letter, the policy decision adopted by the State could be deviated

from; but having regard to the order proposed by us, it may not be necessary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 23

to say anything further at this stage.

Take over :

The word 'take over' would mean that the Government had thought of

taking over of the properties and assets of the schools together with teaching

and non-teaching staff . Take over of schools in the context of the policy

decision of the State does not appear to be an expression of an intendment

for complete take over or the management of the school. In the former sense

take over of such schools would be violative of Article 300-A of the

Constitution of India. Article 300-A embodies the 'doctrine of eminent

domain' which comprises of two parts, (i) acquisition of property in public

interest; and (ii) payment of reasonable compensation therefor.

In Jilubhai Nanbhai Khachar (supra), this Court held :

"The right of eminent domain is the right of the

sovereign 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."

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 be deprived of his property save by authority of law.

The State Government cannot while taking recourse to

the executive power of the State under Article 162,

deprive a person of his property. Such power can be

exercised only by authority of law and not by a mere

executive fiat or order. Article 162, as is clear from the

opening words, is subject to other provisions of the

Constitution. It is, therefore, necessarily subject to

Article 300-A. The word "law" in the context of Article

300-A must mean an Act of Parliament or of a State

legislature, a rule, or a statutory order, having the force of

law, that is positive or State made law\005"

In Thakur Bharat Singh (supra), this Court categorically held that the

State or its officers in exercise of executive authority cannot infringe rights

of citizens merely because a legislature of State has power to legislate in

regard to subject on which executive order is passed.

The right to manage an institution is also a right to property. In view

of a decision of an eleven-Judge Bench of this Court in T.M.A. Pai

Foundation & Others v. State of Karnataka [(2002) 8 SCC 481]

establishment and management of an educational institution has been held to

be a part of fundamental right being a right of occupation as envisaged under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 23

Article 19(1)(g) of the Constitution of India. A citizen cannot be deprived of

the said right except in accordance with law. The requirement of law for the

purpose of clause (6) of Article 19 of the Constitution of India can by no

stretch of imagination be achieved by issuing a circular or a policy decision

in terms of Article 162 of the Constitution of India or otherwise. Such a law,

it is trite, must be one enacted by legislature.

In Rai Sahib Ram Jawaya Kapur and Others v. The State of Punjab

[1955 (2) SCR 225], whereupon reliance was placed by Mr. Mishra, this

Court observed :

"\005The executive indeed can exercise the powers of

departmental or subordinate legislation when such

powers are delegated to it by the legislature. It can also,

when so empowered, exercise judicial function in a

limited way. The executive Government, however, can

never go against the provisions of the Constitution or of

any law. This is clear from the provisions of Article 154

of the Constitution but, as we have already stated, it does

not follow from this that in order to enable the executive

to function, there must be a law already in existence and

that the powers of the executive are limited merely to the

carrying out of these laws."

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 :

"\005All 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 fundamental principles:

(1) the sovereignty of the people with limited

Government authority i.e. the Government must be

conducted in accordance with the will of the majority of

the people. The people govern themselves through their

representatives, whereas the official agencies of the

executive Government possess only such powers as have

been conferred upon them by the people; (2) There is a

distribution of powers between the three organs of the

State \027 legislative, executive and judicial \027 each organ

having some check direct or indirect on the other; and (3)

the rule of law which includes judicial review of arbitrary

executive action\005"

In Union of India & Others v. M/s Graphic Industries Co. & Others

[JT 1994 (5) SC 237], it has been held that the letter written by an authority

to the private persons cannot give rise to a legitimate expectation.

Therefore, there cannot be any doubt whatsoever that the word 'take

over' has been used loosely. It is well settled that a circular letter issued by

an officer of the State without fulfilling the mandatory provisions of Articles

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 23

162 and 166 of the Constitution of India cannot be categorized as a decision

by a State. [See Sri Dwarka Nath Tewari & Others v. State of Bihar &

Others [AIR 1959 SC 249].

If the said circular letter does not satisfy the requirement of Article

162 of the Constitution of India, the question of a valid take over in the

sense that the properties and/or management thereof would vest in the State

of Bihar, does not arise. Furthermore, the District Education Officer is not

empowered to issue a notification formally taking over of management and

control and vesting the same into the State Government. In any event, if

teachers were required to be appointed in the manner laid down therein, it is

beyond anybody's comprehension as to how the management of the school

is taken over together with the teaching and non-teaching staff who had

already been working therein.

Conclusion :

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

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 question

at all. So far as the impugned circular dated 18.02.1989 is concerned, the

State has, in our opinion, a right to support the validity thereof in terms of

the constitutional framework.

Having said so, we must observe that the ultimate decision must be

left at the hands of the State. In view of the Cabinet decision dated

25.01.2000, 300 schools are said to have been recognized. We have,

however, our doubts as to whether all correct facts have been placed before

the Cabinet or not particularly in view of the fact that many of the schools

which were established in Chhotanagpur and Santhal Pargana are now in the

State of Jharkhand. We have pondered over the matter but we are not very

sure as to whether apart from the schools which had been identified by the

three-man committee and admittedly recognized by the State, any final

decision had been taken as regard recognition or otherwise of the remaining

schools by the appropriate authority.

For the said purpose, we are of the opinion that a committee should

be constituted for the said purpose.

The Chief Secretary of the State of Bihar is, therefore, requested to

constitute a committee comprising of two officers and one Educationist of

repute and/or a retired Judicial officer. In the event a Judicial Officers is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 23

appointed as a member of the committee, he would be the chairman thereof.

Remuneration of the Judicial Officers and/or the Educationist shall be

determined by mutual agreement.

The Chief Secretary is hereby requested to place at the disposal of

the committee the requisite staff, which may be required by the committee,

from amongst the staff of one or the other department of the State.

In the event it is found that teachers have been appointed on ad hoc

basis, the Vidayalay Sewa Board shall be directed to make regular

recruitment 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 the claims

of the institutions and/or the teaching and non-teaching staff would submit a

report before the Chief Secretary within three months.

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.

We would appreciate, if the State Government takes suitable action

against those who may be found responsible for commission of irregularities

and/or illegalities in the process of implementation of the Government

scheme in accordance with law.

As regard minimum age of the teaching and non teaching staff,

indisputably the same should be 18 years.

So far as educational qualification of the teaching staff is concerned,

we are of the opinion that having regard to the fact that the limited number

of teachers were to be appointed with a view to accomplish a constitutional

goal of spreading literacy in the villages, particularly amongst the girls, the

standard adopted in Zila Schools or Government schools constituted in

urban areas may not be insisted upon, as was observed by the High Court,

but keeping in view the fact that it is essentially a Government function, the

question as to whether some teachers having B.T. training or training in

Physical Education would be allowed to continue in the said Project Schools

or not is left to the State, wherefor a decision in a decision in accordance

with law may be taken.

These appeals are disposed of with the aforementioned observations

and directions. In the facts and circumstances of the case, there shall be no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 23

order as to costs.