2006 (1) TMI 645 - SC - Indian Laws

Constitutional scheme - fundamental right of education - State to establish Project Schools - Petition filled by Teaching and non-teaching staff - seeking payment of salaries to the teaching and non teaching staff of 300 schools - Validity of circular letter dated 04.02.1989 - appointment by the Vidyala Sewa Board - decision of the Cabinet to sanction four additional posts in each of the 300 Project Schools - educational qualification of the teaching staf f - HELD THAT - 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. There is nothing on record to show as to the precise job required to be performed by the three men Committee i.e. they were to identify such schools which met the criteria laid down in the Circular letter dated 25.9.1981 or 25.1.1985 or whether they were also to scrutinize the academic and other qualifications required for appointment of the teaching and nonteaching staff. Except certain statements made in the affidavit before the High Court as also before us the parties herein had not produced any document to show that on what term or terms the process of recognition/taking over of the private schools had been made. There is no dispute about 150 schools. Various documents as also the affidavits filed on behalf of the State in no uncertain terms show that besides the schools which were established by the State and are being run by it, there are various other schools over which there was a dispute about their identification. The Government established 75 schools and three men Committee identified 57 schools. The teachers of the said schools were appointed by Vidyala Sewa Board, but the documents produced and the affidavits 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. 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. 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 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. 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. Thus, 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 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. Thus, there shall be no order as to costs.

Summary

Issues Involved:
1. Policy decision regarding establishment of Project Schools.
2. Implementation of the scheme for Project Schools.
3. Recognition and regularization of services of teaching and non-teaching staff.
4. Discrepancies in the number of schools recognized and taken over.
5. Legal implications of the take over of schools by the State.
6. Qualifications and age criteria for teachers in Project Schools.

Issue-Wise Analysis:

1. Policy Decision Regarding Establishment of Project Schools:
The State of Bihar, recognizing its educational backwardness, adopted a policy decision to establish Project Schools under the sixth Five Year Plan (1981-1985). The goal was to establish at least four high schools per block, including one Girls High School. Priority was given to the districts of Santhal Pargana and Chhotanagpur due to their educational backwardness. The policy aimed to establish 650 schools over four years, with specific targets set for each year.

2. Implementation of the Scheme for Project Schools:
The implementation involved identifying blocks with fewer than four schools and establishing new ones. A three-man committee was formed to identify existing schools for recognition. The State issued circulars detailing the mode of appointment and qualifications for teachers. By 1981-82, 150 schools were established. The State's approach included both direct establishment of schools and recognition of private schools through public participation.

3. Recognition and Regularization of Services of Teaching and Non-Teaching Staff:
The recognition and regularization of teachers' services were governed by circulars issued by the State. The Full Bench of the Patna High Court held that the provisions for recognition and regularization applied to schools selected during both 1981-82 and 1984-85. The court emphasized the need for a clear policy on qualifications and regularization criteria. The High Court found that the staffing pattern should include nine posts, including the Head Master/Head Mistress, as per the 1982 circular.

4. Discrepancies in the Number of Schools Recognized and Taken Over:
There was a dispute regarding the number of schools recognized and taken over. The State contended that only 132 schools were taken over, while respondents argued that 300 schools were recognized. The High Court found that the process of selection was completed in 1986, and there was no controversy regarding the establishment of 300 Project Schools during 1984-85. The Supreme Court noted discrepancies in the State's stand and directed a further review by a committee.

5. Legal Implications of the Take Over of Schools by the State:
The term "take over" was used loosely, and the Supreme Court emphasized that any take over must comply with Article 300A of the Constitution, which requires a law for the acquisition of property. The court noted that the State's actions must be supported by legislation or a clear policy decision. The management of schools and the appointment of teachers must follow legal procedures and constitutional provisions.

6. Qualifications and Age Criteria for Teachers in Project Schools:
The qualifications and age criteria for teachers were outlined in the circular dated 04.02.1989. The High Court found that the criteria should not be applied retrospectively and that the minimum qualifying age for teachers should be 18 years. The court also addressed the equivalence of B.T. certificates with B.Ed. degrees and left it to the State to decide on the recognition of such qualifications.

Conclusion:
The Supreme Court directed the constitution of a committee to review the recognition and regularization of Project Schools and their staff. The committee would scrutinize the claims and qualifications of the teaching and non-teaching staff and submit a report to the Chief Secretary. The court emphasized the need for adherence to constitutional provisions and legal procedures in the take over and management of schools. The appeals were disposed of with specific directions for further action by the State.