S.B Sinha, J.:— In this writ application the petitioners who are the teaching and non-teaching staff of a school commonly known as Sishu Niketan (KG) of Jalpajguri, have filen this writ application claiming, inter alia, the following reliefs:

(a) An appropriate writ or writs, order or orders be issued directing the respondents and each one of them to (i) allot grant-in-aid to Sishu Niketan (K.G) School, Jalpaiguri and (ii) to pay salaries and allowances to the petiitoners and each one of them, month by month and (iii) to pay the petitioners and each one of them the arrear, Salaries and allowances for the months from June to December, 1992.

2. Sishu Niketan (K.G), Jalpaiguri (hereinafter referred to the ‘said school’) is run by Sishu Niketan, Jalpaiguri a Children's Welfare Society. Allegedly from 15th August, 1947 the said school was given sanction under Grant-in-Aid scheme by the State Government vide Memorandum dated 13th February, 1948 issued by the Assistant Inspector of Schools, Jalpaiguri. Allegedly the said school provided free education to its students. The allotment of money for payment of salary and allowances to the approved teaching and non-teaching staff of the said school was sanctioned by the State Government through the District Inspector of Schools (Primary). However, from March, 1992 the petitioners had not been paid their salaries and allowances. Allegedly on 25.9.1992 an allotment for Rs. 4,00,000/- was sanctioned by the District Inspector of Schools.

3. The Respondent Nos. 1 to 4, in their affidavit, inter alia, stated that the school was not a recognised institution and, thus, neither question of approval of the appointment of teaching and non-teaching staff nor payment of any Grant-in-Aid to the said school arises.

4. It is stated that from Annexure ‘A’ to the writ application it would appear that the petitioner No. 1 was appointed as an Teacher for the preparatory school and not for the said school. According to the respondents Grant-in-Aid used to be given to the Sishu Niketan which has several units.

5. It is also disputed that the School in question provides free education. The respondents accepted that at certain stage, the payments of salary and allowances to the teaching and non-teaching staff were benig made but according to them the same has been done by way of a mistake. District Inspector of Schools who had affirmed the Affidavit in support of the Affidavit-in-Opposition states:

“I am unable to ascertain at this stage how and when such wrong or mistake took place. The petitioners having no authentic document in support of their basis of claim cannot take any advantage of any bona-fide mistake or wrong if any committed. It may further be stated that the government never directly paid salaries and allowances to teaching staff of the said Kindergarten School. Only the Grant-in-Aid as admissible was placed to the Sishu Neketan for making payments only to the approved Staff.”

6. It has been stated that even the petitioners in their representation dated 24th September, 1992 (Annexure ‘F’ to the writ application) prayed for approval of their services. It; has further been stated that under mis-conception an ad-hoc Rs. 4,00,000/- was sanctioned in favour of Sishu Niketan (free primary) KG School for payment of wholetime approved teaching and non-teaching staff. The said respondent further pointed out that the petitioners themselves have stated on one occasion that the matter relates Sishu Niketan (KG) School and on another occasion Sishu Niketan Free Primary (KG) School.

7. An Affidavit-in-Opposition has also been filed on behalf of the Respondent Nos. 5 to 13 excepting respondent No. 9 affirmed by Sri Anal Chowdhury. The said respondents supported the case of the petitioners.

8. The petitioners in their affidavit-in-reply to the Affidavit-in-Opposition of Rsepondent Nos. 1 to 4 had brought on records various documents to show that the Sishu Niketan (Kindergarten Unit) Pre-primary School was recognised by the Government since its inception in 1958-59. The said School used to be paid Grant-in-Aid by the District Inspector of Schools, Jalpaiguri, charges wherefor used to be made under the head “Primary/Direct grant to Non-Government recognised Primary School for Boys and Girls.”

9. The petitioners have also brought on records an office Memorandum dated 31st August, 1967 which is shown in Annexure ‘R-4’ to the writ application for the purpose of showing that a sum of Rs. 7,400/- was to be paid to the Nine recognised non-government Primary and K.G Primary Schools and out of the said list the name ‘Sishuniketan K.G Primary’ in whose favour Grant-in-Aid Rs. 1,300/- has been paid, appears at Serial No. 2 thereof. It was further pointed out that in various letters, the District Inspector of Schools had been mentioned that the amount was sanctioned in favour of Sishu Niketan (KG) Jalpaiguri, for payment of salary to the whole time approved teaching and non-teaching staff. Reference in this connection has been made to various Memos appended thereto and marked as Annexure ‘R-5’ collectively. It is stated that the five units, namely, Junior Basic School, Nursery School No. 1, Nursery School No. 2 and Kindergarten School and Preparatory School are situated in the same compound.

10. In the said Affidavit-in-Reply, the petitioners had stated:

“Among these Schools only the (i) Junior Basic Unit provides education of primary level, that is, students of Standards 1 to 4 read there and the rest four provide education at the pre-primary level, that is, the students below the age group of 6 years read there. It may also be stated here, that with regard to (i) Junior Basic, (ii) Nursery No. 1 and (iii) Nursery No. 2, the Government of West Bengal has taken over the financial responsibility since, on or about 1974-75 and (iv) Kindergarten receives Grant-in-Aid since its inceptiion in 1958-59. The fifth Unit, that is the preparatory is run as a private school and does not receive any government assistance in financial affairs.”

11. Mr. Kundu, appearing on behalf of the petitioners submitted that the School had been receiving Grant-in-Aid since 1948 and thus, it does not lie in the mouth of the State now to contend that the school in question is not a recognised institution. The learned counsil referred to various documents appended to the writ petition as also to the Affidavit-in-reply and submitted on the basis thereof that the school was recognised by the State of West Bengal a long time back and the services of the petitioners have also been approved.

12. The learned Counsel further submitted that Grant-in-Aid has been directed to be stopped after the death of Ex-Chairman of the Society. It was submitted that the respondents have made various incorrect and wrong statements in the Affidavit-in-Opposition without annexing any document in support thereof.

13. The learned Counsel has relied upon decision in Commissioner of Police, Bombay v. Gobardhandas Bhanji reported in AIR 1952 (39) SC 16, in State of Madhya Pradesh v. Ramesh Kumar Sharma reported in 1994 AIR SCW 218 and in Bharat Singh v. State of Haryana reported in AIR 1988 SC 2181.

14. Mr. Alok Ghosh learned Counsel appearing on behalf of the State, on the other hand, submitted that in terms of Grant-in-Aid Rules, Grant-in-Aid can be given only to recognised Schools. It was further submitted that the State has no scheme to grant recognition to any K.G School and although Grant-in-Aid used to be granted, the same having been found to be illegal has been directed to be stopped. It was further submitted that even in terms of Grant-in-Aid Rules the institutions are not supposed to realise tution fees from the students but the school in question has been doing so in violation of the said Rules. It is submitted that two units of Sishu Nike-tan School have been taken over and the salaries of the teaching and non-teaching staff thereto are being paid by the State of West Bengal. It has been submitted that although from the various annexures it appears that the names of teaching staffs had been sent for approval but no approval has yet been granted. The learned Counsel further submitted that K.G and Preparatory School is not of same category and, thus, the teacher appointed in one unit of the School cannot be asked to take classes in other unit of the school. The learned Counsel submitted that no salary can be paid to the non-approved teachers. With regard to the question that the State is entitled to rectify its mistake, the learned Counsel relied upon the decision in Anil Kumar Biswas v. State of West Bengal reported in 1985 (1) CLJ 156, in Registrar, High Court, Original Side v. Samarendra Nath Bhattacharjee, reported in 89 CWN 305 and in State of Madhya Pradesh v. Ramesh Kumar Sharma reported in 1994 AIR SCW 218.

14. The learned Counsel for the parties, when questioned, could not definitely state as to from which date the Grant-in-Aid Rules have come into force but stated that the same probably came into force on or about 1.4.1972

15. From the facts as noticed hereinbefore there cannot be any doubt that rightly or wrongly, the school was being treated as a recognised school and had been continuously receiving the Grant-in-Aid. In fact, even during the pendency of this writ application the salaries of teaching an non-teaching staff have been paid for pre-primary/Jr. Basic Education to cover the expenditure on grant of ad-hoc payment to the approved staff of pre-primary/Jr. Basic Schools during the financial year 1993-94, and gran-in-aid for a sum of Rs. 3,89,000/- was sanctioned in favour of Sishu Niketan Pre-primary/K.G School, Jalpaiguri, for making of ad-hoc payment to 7 teaching and 15 non-teaching staff as would be evident from Office Memorandum 955 dated 28th February, 1993. From a letter dated 2.12.1993, it appears that the District Inspector of Schools, Jalpaiguri had informed the Secretary of the Sishu Niketan Pre-Primary K.G School that the aforementioned payment is not related to the writ petitioner and arrangement for payment of ad-hoc grant-in-aid has been made only to ameliorate the hardship of the concerned teachers un-connected with the writ petition.

16. The submission of learned Counsel for the State to the effect that there is no existing scheme for recognition of Kindergarten or pre-primary school, and the school in question has not been recognised and the services of the teachers have been approved; are contradictory to and inconsistent with each other.

17. If the State of West Bengal did not frame any scheme whatsoever for grant of recommendation to the K.G Schools it must be held, that the grant-in-aid given to the said school was voluntary grant and the same had nothing to do to the Grant-in-Aid Rules framed by the State of West Bengal. It is furthermore admitted that Grant-in-Aid is being given to the said school for a long time treating the same to be a recognised one. It is also apparent from the records that salaries are being paid to the teaching and non-teaching staff of the said school for a long time. Accorling to the learned Counsel for the State of West Bengal, as noticed hereinbefore, the services of the teachers have not been approved but the learned Counsel could not satisfy this Court as to under what circumstances their salaries were being paid although. Such apparent contradictory and inconsistant stand taken by the respondents cannot be appreciated. The District Inspector of Schools who had affirmed the Affidavit-in-support of the Affidavit-in-Opposition filed by the Respondent Nos. 1 to 4, has also filed a report to this Court pursuant to the order dated 21.1.1993 passed by a learned Single Judge of this Court.

18. In the said report he has stated that the School was last visited by the Deputy Director of School Education, West Bengal on 21.11.1992 He further stated that the academic atmosphere of the school is good though there is no academic council in the School. He further stated that throughout the State of West Bengal free education has been introduced from Class-I to Class-XII, including pre-basic, but in this school the students have to pay tution fees @ Rs. 5/- per month. The District Inspector of School in his report however stated that the Government of West Bengal by a Memo dated 7.7.1992 tentatively decided that all the Pre-basic Schools in the State should be abolished. In his report he has taken the same stand as has been taken in the Affidavit-in-Opposition.

There cannot be doubt that the State is entitled to rectify its mistake.

19. In Anil Kumar Biswas v. State of West Bengal reported in 1985 (1) CLJ 156, a Division Bench of this Court, was considering the matter of seniority. The Court held that as the mistake was obvious, no investigation was required to be made after hearing the appellants and there was no question of giving an opportunity to them as no one can take advantage of any mistake and the concerned authority is entitled to correct the same.

20. In Registrar,, High Court, Original Side v. Samarendra Nath Bhattacharjee reported in 89 CWN 305, the Court was concerned with refixation of salary of typists and manuscript writers of the Original Side of this Court. This Court held that the benefit granted to the said employees by the Acting Chief Justice by mistake in excess of his power or authority under Article 229(2) of the Constitution of India was evident and thus the question of giving a hearing to them did not arise.

In that case also, therefore, the mistake committed by the concerned authority was apparention the face of the records.

21. In State of Madhya Pradesh v. Ramesh Kumar Sharma reported in 1994 AIR SCW 218 it was clearly stated that no person was entitled to hold a particular post, only because of the mistake committed in earlier case as a mistake cannot be perpetuated for all time to come. The aforementioned decision, therefore, has no application to the facts and circumstances of the present case.

22. In the facts and circumstances, it is evident, that the State Government appears to have granted defacto recognition to the school in question. Even if no formal recognition has been granted, the State is bound by its action by offering the Grant-in-Aid to the School in question wherefrom the salaries of the teaching and non-teaching staff used to be paid for a long time. By reason of such long standing practice adopted by the State of West Bengal, the teaching and non-teaching staff must have been made to believe that the school in question is a recognised one and grant-in-aid to them is being given in terms of the Grant-in-Aid Rules. Although, as noticed hereinbefore, the State is entitled to rectify a mistake apparent on the face of the records and while doing so it need not give an opportunity of hearing to the persons affected, but a benefit conferred upon a person by way of grant-in-aid cannot be withdrawn all on a sudden only on the ground that the school is not a recognised one. The State of West Bengal, therefor, is bound by its own conduct. According to the learned Counsel for the State himself, the recognition of a pre-primary schools and Kindergarten were not to be granted in terms of any statuaory rules. The State discharges a constitutional function in terms of Part IV of the Constitution of India in imparting an education to the children. It has admittedly undertaken a benevolent scheme to impart education free of costs to the students of pre-basic stage in terms of Article 41 of the Constitution of India.

23. The Supreme Court in Unni Krishnan, J.P v. State of A.P, reported in 1993 (1) SCC 645 and in Miss Mohini Jain v. State of Karnataka reported in AIR 1993 SC 1858 have clearly held that children up to the age of 14 have a fundamental right to get free education. The State having provided the same, in my opninion, now cannot at this stage turn round and withhold Grant-in-Aid from the School in question which, as noticed hereinbefore, was being given for decades. It is also not in dispute that the State has also not yet taken a firm policy decision that all pre-basic schools should be abolished.

24. In this view of the matter, in my opinion, it is not, a case in which the State would be justified in withholding the salaries payable to teachers who have been getting their salaries for a long time without giving an opportunity of hearing to the managing committee of the school and/or the concerned teachers.

25. It is true, that there exists a dispute as to whether the school in question has been taking tution fees @ Rs. 5/- from each student of the school is a question or not. If the Managing Committee of the Schools has violated any of the condition of recognition and/or rules of grant-in-aid, the same should be withdrawn but only upon compliance of minimal requirements of principles of natural justice, as such an action on the part; of the State would entail civil or evil consequences, so far as the Managing Committee as also the teaching and non-teaching staff of the school are concerned.

26. In the case of K.K Kraipak v. Union of India reported in AIR 1970 SC 150 and in the case of Smt. Maneka Gandhi v. Union of India reported in AIR 1978 SC 597, the Apex Court has clearly held that the State is required to adopt a fair procedure in its dealings with the citizens.

27. The Supreme Court, times without number laid emphasis on the concept of fair justice to be meeted out to the citizen by the State.

28. Any arbitrary action on the part of the State would be violative of Article 14 of the Constitution of India and in such an event the Court undoubtedly has the power to strike down an administrative order when it does not conform to reasons supported by the facts and figures. It is also well known that the executive Authority must be rigorously held to be bound by the standards by which it professes its action to be judged. The most accepted methodology of governmental action is its fairness and any deviation or departure therefrom may be judicially interfered with.

29. It is useful to note that the State itself has stated that its action has caused a great hardship to the teaching and non-teaching staff and thus, it has released a huge amount for payment of salaries to the teaching and non-teaching staff on an ad-hoc basis in order to mitigate their sufferinges. It is also evident that it is not the school in question alone but other schools similarly situated have been getting such grant-in-aid, and thus it can safely be presumed that even if there existed no statutory rules in this regard, the State in fact had adopted a policy decision and had been giving grant-in-aid to the said schools pursuant thereto. Any deviation or any departure from a policy decision itself attracts Article 14 of the Constitution of India.

30. The District Inspector of School in his report has not been able to point out as to by whom and at what stage the mistake in question has been committed. It, therefore, appears that only because a formal letter of recognition of school is not available on records of the District Inspector of Schools, he has proceeded to take the aforementioned action.

31. For the reasons aforementioned this writ petition is allowed and the State is directed to continue to give grant-in-aid to the school in accordance with law, subject to the observation made hereinbefore.

32. However, in the facts and circumstances of this case there will be no order as to costs.

Petition allowed.

A.K.R