2006 Supreme(SC) 3

2006(1) Supreme 91
Supreme Court of India
(From Patna High Court)
S.B. Sinha & P.P. Naolekar, JJ.
State of Bihar & Ors. —Appellants
versus
Project Uchcha Vidya Sikshak Sangh & Ors. —Respondents
Civil Appeal Nos. 6626-6675 of 2001
With
Civil Appeal Nos. 6676-6681 of 2001
Decided on 3-1-2006
Counsel for the Parties :
For the Appearing Parties : Rakesh Dwivedi, Sunil Kumar, P.S. Mishra, Ravinder Srivastava, Sr. Advocates, B.B. Singh, Mrs. Sunita R. Singh, Shrish Kumar Misra, V.P. Singh, Irshad 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, Kunal Verma, Tathagat Harsh Vardhan, Upendra Mishra, Dhruv Kr. Jha, Amitesh Chandra Mishra, Himanshu Shekhar, Ambhoj Kumar Sinha, Himanshu Munshi and Kamlendra Mishra, Advocates.

Important point
Considering the shifting of stand by the State of Bihar in implementation of its policy decision adopted by the State to establish Project Schools in the State, the Chief Secretary of the State of Bihar is requested to constitute a committee comprising of two officers and one Educationist of repute and/or a retired Judicial Officer.

Headnote:(i) Constitution of India—Articles 15(3), 19(1)(), 21A—Imparting of education—Obligation of State—State of Bihar adopted a policy decision to establish Project Schools—Out of 587 blocks of the State 435 blocks were identified where even a single Girls High School was not recognized—Districts of Santhal Pargana and Chhotanagpur which were thence part of State of Bihar and now part of State of Jharkhand were to be given priority as the said areas in educational spheres were found to be comparatively more backward—33 Girls High Schools were also proposed to be established in areas other than Santhal Pargana and Chhotanagpur where atleast Boys High Schools are functioning—During 1981-1982, 150 schools were established—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—Writ petitions filed during the period between 1992 and 1997, by teaching and non-teaching staff of several schools, contending that said circular letter dated 4-2-1989 is arbitrary and discriminatory—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 Government letter dated 12-2-1985 and 23-2-1985—On or about 20-11-2000, State of Bihar has been bifurcated in two States i.e. State of Bihar and State of Jharkhand—State of Bihar in implementation of the scheme failed and/or neglected to adhere to one stand—Officers of the State had at different points of time took different stands—An enquiry as regard appointment of teachers of employees of different categories of schools is being carried out by CBI—Deviation as regard implementation of the original scheme is explicit—Whether principle of equitable estoppel would apply against the State of Bihar—(No)—Direction made to constitute a committee comprising of two officers and one Educationist of repute and/or a retired judicial officer.

       Held : 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 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. (Paras 37 to 40)

       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. (Paras 44 to 46)

       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 matter 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. (Para 57)

       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 were 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. (Paras 72 and 73)

       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. (Paras 74 to 76)

       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. (Para 77)

       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. (Para 83)

       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. (Paras 87 and 88)

       (ii) Constitution of India—Articles 15, 19, 21A—Imparting of Education—Sovereign function of the State—Children of age group 6 to 14 have a fundamental right of education—Article 15 envisages special protection and affirmative action for women and children—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. (Paras 2 and 37)

       (iii) Evidence Act, 1872—Section 115—Estoppel—Principle of estoppel has no application where contention as regard constitutional provision or a statute is raised—Right of 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. (Para 74)

       (iv) Service Law—Constitution of India—Article 309—Regularization—Concept of regularization pre-supposes irregular appointment at the first instance so as to enable-the employer to regularize the same—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.

       Held : 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. (Para 48)