AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2006 (1) TMI 645
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....n 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 are functioning. Out of 587 blocks of the State 435 blocks were identified where even a single Girls High S....
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....t 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. Furth....
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....ding etc. 10. 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 : 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, ....
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....ool 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-Chem....
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....r 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 for recognition/regularization of the servic....
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.... 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 : "Individual 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 ....
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....d at a time after canceling his appointment." 25. 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 : 26. 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. (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 t....
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....hich 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 t....
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...., 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....
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....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 ....
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....ention 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." 30. 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....
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.... 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. 35. 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....
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....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 198485 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 b....
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....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 : 44. 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, 2005 (10) SCALE 286] 45. 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 ....
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.... 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. Public Participation : 48. 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....
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....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 52. 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. 53. 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 t....
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....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 : 57. 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....
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....agement committee of the school without advertisement, which would mean that such teachers may also be appointed on an ad hoc basis. 59. 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 to say anything further at this stage. Take over : 60. 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. 61. In Jilubhai Nanbhai Khachar (supra), this Court held : "The right of eminent domain is the right of the sovereign ....
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....ution has been held to be a part of fundamental right being a right of occupation as envisaged under 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. 65. 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 : "The 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 executiv....
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....e categorized as a decision by a State. [See Sri Dwarka Nath Tewari & Others v. State of Bihar & Others [AIR 1959 SC 249]. 69. 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 : 70. 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 necess....
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.... 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 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. 75. 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. 76. 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. 77. 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. 78. 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. 79. All the educational institutions claiming recognition or having any other claims would f....