# STATE OF BIHAR AND ORS v. PROJECT UCHCHA VIDY A, SIKSHAK SANGH AND ORS

- **Citation:** [2006] 1 S.C.R. 14
- **Court:** Supreme Court of India
- **Decided:** 2006-01-03
- **Case number:** Civil Appeal Nos. 6676-6681 of 2001
- **Bench:** S. B. Sinha, P.P. Naolekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-and-ors-v-project-uchcha-vidy-a-sikshak-sangh-and-ors-21040
- **Pages:** 42

## Headnote

Constitution of India, 1950:
Articles 14, 15(3), 16, l9(1}(g), 19(6) and 309-- 'Project Schools' in State
C of Bihar-Establishment, identification and recognition of-State intending to
establish at least one Girls High School in each block of educationally backward
areas--Some schools established, identified and recogni:::ed--These schools
were not lo be treated as nationalized schools~'laim by teachers of such
schools for payment of salaries and regularization of their services-Number
D of Schools and number of teachers in such schools disputed-Held, education
as a part of human development is a human right-Woman and children
require special treatment and, therefore, protective discrimination and
affirmative action were contemplated in terms of Article 15(3)-State
Government would corzs.titute a Committee to consider the claims regarding
recognition. actual number of such schools, educational qualification of the
E teachers as also recruitment of teachers where ad hoc teachers were appointed
Articles 162, 166 and 300-A:
Educational institutions- '"Takeover" of by State Governme111ldentificalion of High Schools as 'Project Schools' in State of BmarF Recognition of-Such Schools not to be treated as nationalized schools-No
statute enact~d nor Rules framed laying down the modalities for taking over
the properties and management together with teaching and non-teachiltg staff
of such schools--Held, in the instant case word "mkeover" has been used
loosely-A circular letter issued by an officer of the State Government without
G fi1/jilling the mandatory provisions of Articles 162 and 166 cannot he
categori:::ed as a decision by the State-Doctrine of 'eminent domain'.
H
Education/Educational Institutions:
'Recognition' of Schools and 'regularisation' of services of teaching
14
STATE OF BIHAR ,,_ PROJECT UCHCHA VIDYA, SIKSHAK SANGH
IS
and non-teaching staff-Directions given to consider the claims regarding A
recognition to the institutions.
Administrative Law:
Equitable estoppel-Held, rule of estoppel has no application if by reason
of a constitutional provision State's action cannot be supported or State intends B
to withdraw or modifY a policy decision-legitimate expectation.
Words and Phrases:
Words 'regularization' and 'take over '-Connotation of in the context
of regularization of services of educational institutions.
With a view to combat illiteracy. in comparatively educationally
backward areas of State of Bihar, the State Government issued circular
No. 1115 dated 27.5.1981 laying down a policy decision that in the
remaining years of the sixth Five Year Plan period, i.e. 1981-82 to 1984c
85, the State would achieve a target of establishing four High Schools out D
of which one would be Girls High Sc~ool in every block. Such schools were
to be known as Project Schools. During the years 1981-82, some schools
were established. In order to achieve the target a three-man Committee
was constituted for identification of the existing schools as Project Schools.
Certain schools were recognized in the year 1985. These schools were not E
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.
During the P.eriod between 1992 and 1997 a number of writ petitions
were filed in the High Court seeking directions, inter alia, for payment of F
salaries of teaching and non-teaching staff of 300 schools purported to be
selected as Project Schools. Ultimately the matter was heard by a Full
Bench of the High Court which held that there remained no controversy
as regards establishment/selection of 300 project schools, and the nuiTiber
of teach"-rs in each schools would constitute 9. The High Court also made
observations regarding age and educational qualification of teaching and G
,
non-teaching staff. Present appeals were filed both by the State as also on .
behalf of the teachers, questioning the judgment of the Full Ben

## Text

_Characters 0–39,721 of 97,807. This is a partial read: ask again with offset=39721 for what follows._

A
B
STATE OF BIHAR AND ORS.
v.
PROJECT UCHCHA VIDY A, SIKSHAK SANGH AND ORS.
JANUARY 3, 2006
l
[S. B. SINHA AND P.P. NAOLEKAR, JJ.]
Constitution of India, 1950:
Articles 14, 15(3), 16, l9(1}(g), 19(6) and 309-- 'Project Schools' in State
C of Bihar-Establishment, identification and recognition of-State intending to
establish at least one Girls High School in each block of educationally backward
areas--Some schools established, identified and recogni:::ed--These schools
were not lo be treated as nationalized schools~'laim by teachers of such
schools for payment of salaries and regularization of their services-Number
D of Schools and number of teachers in such schools disputed-Held, education
as a part of human development is a human right-Woman and children
require special treatment and, therefore, protective discrimination and
affirmative action were contemplated in terms of Article 15(3)-State
Government would corzs.titute a Committee to consider the claims regarding
recognition. actual number of such schools, educational qualification of the
E teachers as also recruitment of teachers where ad hoc teachers were appointed
Articles 162, 166 and 300-A:
Educational institutions- '"Takeover" of by State Governme111ldentificalion of High Schools as 'Project Schools' in State of BmarF Recognition of-Such Schools not to be treated as nationalized schools-No
statute enact~d nor Rules framed laying down the modalities for taking over
the properties and management together with teaching and non-teachiltg staff
of such schools--Held, in the instant case word "mkeover" has been used
loosely-A circular letter issued by an officer of the State Government without
G fi1/jilling the mandatory provisions of Articles 162 and 166 cannot he
categori:::ed as a decision by the State-Doctrine of 'eminent domain'.
H
Education/Educational Institutions:
'Recognition' of Schools and 'regularisation' of services of teaching
14
STATE OF BIHAR ,,_ PROJECT UCHCHA VIDYA, SIKSHAK SANGH
IS
and non-teaching staff-Directions given to consider the claims regarding A
recognition to the institutions.
Administrative Law:
Equitable estoppel-Held, rule of estoppel has no application if by reason
of a constitutional provision State's action cannot be supported or State intends B
to withdraw or modifY a policy decision-legitimate expectation.
Words and Phrases:
Words 'regularization' and 'take over '-Connotation of in the context
of regularization of services of educational institutions.
With a view to combat illiteracy. in comparatively educationally
backward areas of State of Bihar, the State Government issued circular
No. 1115 dated 27.5.1981 laying down a policy decision that in the
remaining years of the sixth Five Year Plan period, i.e. 1981-82 to 1984c
85, the State would achieve a target of establishing four High Schools out D
of which one would be Girls High Sc~ool in every block. Such schools were
to be known as Project Schools. During the years 1981-82, some schools
were established. In order to achieve the target a three-man Committee
was constituted for identification of the existing schools as Project Schools.
Certain schools were recognized in the year 1985. These schools were not E
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.
During the P.eriod between 1992 and 1997 a number of writ petitions
were filed in the High Court seeking directions, inter alia, for payment of F
salaries of teaching and non-teaching staff of 300 schools purported to be
selected as Project Schools. Ultimately the matter was heard by a Full
Bench of the High Court which held that there remained no controversy
as regards establishment/selection of 300 project schools, and the nuiTiber
of teach"-rs in each schools would constitute 9. The High Court also made
observations regarding age and educational qualification of teaching and G
,
non-teaching staff. Present appeals were filed both by the State as also on .
behalf of the teachers, questioning the judgment of the Full Bench of the
High Court.
The stand of the State before the High Court as also before the H
16
SUPREME COURT REPORTS
[2006] I S.C.R.
A Supreme Court was that the three-man Committee was appointed for the
purposes of identification of the Schools, which were situated in various
blocks, as Project Schools. The controversy between the parties was with
regard to questions: whether the schools were to be recognized or the
schools alongwith its management had been taken over; whether
management of the schools continued to be in the private hands and the
B State only intended to pay salaries of teachers whether the properties
belonging to the Managing Committees of erstwhile schools vested in the
State of Bihar; whether 5 or 9 posts were recognized in the Project Schools.
c
Disposing of the appeals, the Court
HELD: 1.1. 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
D 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. 141-A-CJ
E
1.2. The State of Bihar framed the scheme having constitutional goal
in mind. However, the shifting of stand by the State 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 clearly
F show that the main purpose for which the said scheme was formulated
had been greatly deviated from. Instead and in place of establish in& 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. Further, whereas emphasis was laid on sp eading of
education amongst women by establishing at least one Girls High School
G in each identified block, for all intent and purport a shift was made
towards Boys High Schools. 141-C-D; 43-DI
H
1.3. 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
•
STATE OF BIHAR 1·. PROJECT UCHCHA VIDYA SIKSHAK SANGH
17
"'
government schools, but while identifying and selecting private schools for A
recognition thereof funds were also allotted for construction of buildings.
The State Government took different stands at different point of time. It
~
is not clear 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/ B
taken over. 141-F, H; 42-AI
•.
2.1. So far as taking over of the services of the teaching and nonteaching staff of the Project Schools and claim regarding regularization
of their services is concerned, it must be seen that the expression
'regularization' has a definite connotation. Regularization of services must c
precede a legislative act or, in absence of legislation, rules framed in terms
of proviso appended to Article 309 of the Constitution. Besides, in absence
of any policy decision of the State regarding taking over of Schools, it
cannot be said that services of teaching and non-teaching staff had been
\
taken over whether along with properties of such schools or not, so as to
enable the courts to arrive at a definite conclusion that teaching and non- D
teaching staff for all intent and purport have become employees of the
State. 144-B; 44-FI
State of UP v. Neeraj Awasthi, (2005) 10 SCALE 286, relied on.
2.2. It is one thing to say that the Management of the school has been E
taken over together with the services of the teaching and non-teaching staff
and it is another thing to say that the State has recognized the schools
and is bound to pay the salary of 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 F
statute itself, the educational 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 G
_j
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 oflndia. It is, thus, not a case where H
18
SUPREME COURT REPORTS
[2006] I S.C.R.
A the concept of regularization could have been invoked. [44-G-H; 45-A-BI
2.3. In the matter of schools which were said to have been established
by way of public participation, 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. Besides,
B it is evident that a large number of schools were still to be identified or
their identity is not known or building was yet to be constructed. A school
could not be said to have been taken over where the identity of the land
is not known or where no building is in existence. [45-E; 46-A]
3. t. 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 of the management of the school.
In the former sense take over of sueh schools would be violative of Article
D 300-A of the Constitution of India. The right to manage an institution is
also a right to property. 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. (49-F]
Jilubhai Nanbhai Khachar and Ors. v. State uf Gujarat and Anr., (1995)
E I Supp. 596, relied on.
Bishambhar Dayal Chandra Mohan and Ors. etc. v. State of U.P. and
Ors. etc., [1982] I SCC 39, referred to.
3.2. Establishment and management of an educational institution is
F a part of fundamental right being a right of occupation as envisaged under
Article 19(1)(g) of the Constitution. 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 can by no stretch of imagination be
achieved by issuing a circular or a policy decision in terms of Article 162
G of the Constitution or otherwise. Such a law, it is trite, must be one enacted
by legislature. [50-H; 51-A-B[
H
T.M.A. Pai Foundation and Ors. v. State of Karna/aka. [2002] 8 SCC
481 and State of Madhya Pradesh and Anr. v. Thakur Bharat Singh, AIR
(1967) SC 1170 (1967[ 2 SCR 454, relied on.
·-4
I
"'·
J
STATE OF BIHAR v. PROJECT UCHCHA VIDYA SIKSHAK SANGH
J 9
Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, 119551 A
2 ·scR 225, referred to.
3.3. Letter written by an authority to the private persons cannot give
rise to a legitimate expectation. In the instant case, 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 B
162 and 166 of the Constitution cannot be categorized as a decision by
the State. 152-C-DI
Sri Dwarka Nath Tewari and Ors. v. State of Bihar and Ors., AIR (1959)
SC 249 and Union of India and Ors. v. Mis Graphic Industries Co. & Ors., C
JT (1994) 5 SC 237, relied on.
3.4. If the circular letter dod not satisfy the requirement of Article
162 of the Constitution 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 D
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,
the management of the school could not have been taken over together
with the teaching and non-teaching staff who had already been working
therein. 152-E-FI
E
4. As regards the number of 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 !Ire being run
by it, there are various other schools over which there was a dispute about
their identification. The number of the schools mentioned by either side F
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. 146-C-EI
G
5. So far as number of teachers in Project School is concerned,
whereas in respect of the schools established by the State 9 posts were
sanctioned, for the schools which were selected· for recognition I taken over
through the agency of the three-man committee, only 5 posts were
sanctioned. The State is no doubt entitled to lay down qualification or
sanction the requisite number of posts. The State is also entitled to fix the H
t
20
SUPREME COURT REPORTS
[2006] I S.C.R.
A age limit of such teachers. 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
B
purpose. Therefore, the finding of the High Court that the State was bound
to recognize at least 9 teachers in each school does not require elaborate
consideration as the State Government has now sanctioned 4 additional
posts with retrospective effect. [47-B-E; G-H; 48-CI
6. As regard minimum age of the teaching and non-teaching staff,
c indisputably the same should be 18 years. [55-BI
7. So far as educational qualification of the teaching staff is
concerned, 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
D 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
E
Schools or not is left to the State, wherefor a decision in accordance with
law may be taken. [55-CI
8.1. Even if there is no dispute as regards 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
F 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, and the question as to
how many schools fulfill the criteria must be considered afresh. It is
furthermore necessary to scrutinize as to whether the teaching and nonteaching staff appointed for the said purpose fulfill the criteria in terms
G of the policy decision of the State or not. Their qualifications laid down
under other relevant statutes for the purpose of obtaining permission must
k
also be scrutinized. [52-G-H; 53-A[
8.2. It can not be said that the principle of equitable estoppel would
H
apply against the State of Bihar. It is now well known, the rule of estoppel
.:m
STATE OF BIHAR 1·. PROJECT UCHCHA VIDYA SIKSHAK SANGH
21
,,.
'
has no application where contention as regard constitutional provision or A
a statute is raised. The right of the State to raise a question as regards 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. 153-B-CI
8.3. 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
B
not permitted to raise the said question at all. So far as the impugned
circular dated 18.02.1989 is concerned, the State has, a right to support C
the validity thereof in terms of the constitutional framework. 153-DI
8.4. It is not clear 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
1.
in the State of Jharkhand; and whether apart from the schools which had D
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 .
. Therefore, 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/ E
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 Officer and/or the Educationist shall be
determined by mutual agreement. In the event it is found that teachers
have been appointed on ad hoc basis, the Vidayalay Sewa Board shall be F
directed to make regular recruitment strictly in accordance with law.
153-E-H; 54-A, Bl
8.5. 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 G
other claims would file their representations together with all supporting
.J,
documents within three weeks from date. In their applications, the
institutions must also give details of the students admitted in each class
year-wise. (54-DI
8.6. The Chief Secretary would place the said report together with H
22
SUPREME COURT REPORTS
(2006] I S.C.R.
A 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. (54-G-H(
8.7.The State Government may take suitable action against those who
may be found responsible for commission of irregularities and/or
B illegalities in the pro~ess of implementation of the Government s.:heme in
accordance with law. (55-A[
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6626-6675
of 200 I.
C
From the Judgment and Order dated 7.12.1999 of the High Court of
Patna in C.W.J.C. Nos. 4783/96, !0397/92, 1224/94, 1772/93, 1604, 1223,
1704194, 5585of1993, 1551, 1430/94, 5116, 4145, 8492, 8499, 8858, 8498,
8720, 11924, 6293, 6777, 6164, 6817, 7239/93, 12326/92, 2752, 2371/94,
8741, 5586, 4427, 12930, 3847/93, 2725, 3064, 1705, 1549, 2676/94 and
D LP.A. 1092/1995.
WITH
Civil Appeal Nos. 6676-6681 of 2001.
Rakesh Dwivedi, Sunil Kumar. P.S. Mishra, Ravinder Srivastava B.B.
E Singh, Mrs. Sunita R. Singh, Shrish Kumar Misra V.P. Singh, lrshad Ahmad,
Anita Kanungo, Santosh Kumar, Vijay Kr. Pandey, Chandra Kant Nayak,
Rakesh K. Sharma, Ashok Mathur, Arup Banerjee, Deba Prasad Mukherjee,
D.N. Goburdhan, Ms. Pinky Anand, Ms. Geeta Luthra, Mrs. Kirti Sinha,
Ugra Shankar Prasad, Ram Sagar Singh, Kuna! Verma, Tathagat Harsh
F Vardhan, Upendra Mishra, Dhruv Kr. Jha, Amitesh Chandra Mishra, Himanshu
Shekhar, Ambhoj Kumar Sinha, Himanshu Munshi and Kamlendra Mishra
for the appearing parties.
The Judgment of the Court was delivered by
G
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 :
H
Imparting of education is a sovereign function of the State. Article 21 A
t
...
J
\
STATE OF BIHAR 1•. PROJECT UCHCHA VIDYA SIKSHAK SANGH [SINHA. J.]
23
of the Constitution of India envisages that children of age group 6 to 14 have A
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, B
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 C
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 D
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
E
1983-84
200
1984-85.
100
Total
650
The districts of Santhal Pargana and Chhotanagpur which were thence F
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
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 G
four High Schools are established, the students for so many schools may not
_..1,
be found. In the said areas, therefore two High Schools were proposed to be
definitely established in the following terms:
"1.
Santhal Pargana
15
H
24
A
B
c
D
E
SUPREME COURT REPORTS
2.
3.
4.
5.
6.
7.
Ranchi
Palamu
Hazaribagh
Giridih
Dhanbad
Singhbhum
Total
It was further laid down therein that :
9
9
13
4
2
13
65"
[2006 I I s.c. R.
"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
F
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
G
obtain the land and building through local efforts.
H
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
,. -
i
•
r
STATE OF 131HAR 1·. PROJECT UCHCHA VIDYA SIKSHAK SANGH [SINHA, J]
25
establishing of at least 4 High Schools in these blocks will be achieved A
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:
B
I.
Santhal Pargana
8
2.
Ranchi
8
'
Palamu
Nil
J.
4.
Hazaribagh
5
5.
Giridih
2
c
6.
Dhanbad
1
7.
Singhbhum
5
Total =
29"
The District Education Officers were directed to take action for D
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:
E
I.
San th a 1 Pargana
4
2.
Ranchi
3
3.
Palamu
2
4.
Hazaribagh
5.
Giridih
6.
Dhanbad
7.
Singhbhum
Total=
14
Para 8 of the said Circular letter states that in the year 1981-82, I 08
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.
F
G
Further, a policy decision which was taken in relation to the areas H
26
SUPREME COURT REPORTS
12006] I S.C.R.
A 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
B
in the year 1981-82 in other area of the State, the following number
of High Schools will be established district-wise:
c
D
Number of District
Number of Boys Schools to be newly
established
I.
Rohtas
2
2.
Bhagalpur
3.
Purnia
2
4.
Saharsa
I
5.
W. Champaran
2
6.
East Champaran
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
E Schools are functioning. It was directed that the target of the establishment
of 150 High Schools was definitely to be achieved by the end o( 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.
F
Yet again in another Circular dated 21.2.1982, the mode and manner of
appointment as also the requisite qualification for 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.
G
It is not in dispute that during 1981-82, 150 schools were established.
H
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
STATE OF BIHAR 1·. PROJECT UCHCHA VIDYA SIKSHAK SANGH [SINHA, J] 27
-
""'
Samastipur
4
A
Begusarai
2
Khagaria
Sitamarhi
East Cham baran2
West Champaran3
B
· Gopalganj
3
Saran
4
Muzaffarpur -
3
Pumia
3
c
Bhagalpur
4
Lohardagga
i
Gum la
-\
Nalanda
Munger
D
Bhojpur
2
Santhal Pargana -
2
Palamau
4
Nawada
2
E
Gay a
4
Aurangabad
Giridih
Singhbhum
F
Patna
I
Begusarai
3
linplementation of the Scheme :
It also is not in dispute that a three-man committee constituted for the G
purpose of identification of the existing schools identified 57 schools. Schools
..l
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 H
28
A
B
c
SUPREME COURT REPORTS
120061 I S.C.R.
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 su1:h 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
Vidya!aya Sewa Board."
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
D 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
E 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
F 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
G
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
H
up from the school itself for the examination conducted by Bihar
STATE OF BlllAR 1·. PROJECT UCHCHA VIDYA SIKSHAK SANGH [SINHA, J]
29
School Examination Board and the result of such student A
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 B
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 C
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. I 027 dated 2.1LI985.
(a) Language Group-3 (Hindi-1, English- I and Sanskrit -I)
(b) Humanity Group-3 (Home Science, Geography, Civics,
Economics and three in the light of seniority, qualification
and utility).
(c} Science Group-2 (Math-I, Biology-Chemistry-I)
(d) Other teachers- I (Minority language, Music, Fine Arts,
Commerce, Only one in the light of seniority, qualification
and utility)."
D
E
For the purpose of appointments of such teachers, a screening committee F
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."
G
H
30
St;PREME COURT REPORTS
[2006 I I s. c. R.
A
5 sanctioned posts for the said schools were prescribed. According to
B
the State in terms ot: 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 tiled 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
C 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
D conflicting decisions, opined that the matter should be resolved by a Full
Bench of the Patna High Court.
Findings of the High Court :
E
A Full Bench of the Patna High Court was, pursua,11 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
F 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.
G
H
(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.
. I
STATE OF BIHAR r. PROJECT UCHCHA VIDYA SIKSHAK SANGH [SINHA. J] 3 J
(iv) The question as regard recognition and regularization of the services A
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;
B
( c) over age and under age on the date· of appointment;
( d) degree equivalence;
( e) the question with respect to the circular holding the field for
recognition/regularization of the service conditions of teaching C
and non teaching staff of all the schools for the year 1984-85;
It was inter a/ia 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 D
12. I 0.1982; (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 wlls 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
E
F
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 authc.rities G
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 provisi·ons governing recognition/ H
32
SUPREME COURT REPORTS
[20061 I S.C.R.
A 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
B 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 nonteaching staff qua their eligibility, qualification, suitability etc., for the purpose
of regularization/rec9gnition of the service in the Project Schools, individual
cases have to be examined by the authorities of the State in terms of its
C findings, stating :
D
E
F
" ... 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.