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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

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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

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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

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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."

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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)."

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                        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

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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

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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.

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(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.               

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(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

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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

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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.

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       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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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order as to costs.