State of Bihar & Ors. vs Shyama Nandan Mishra

HELD: 1.1 It is evident from the Notification dated 13.11.1985 that the posts of + 2 lecturers (in the government schools) were created in the cadre of BSES, in the pay scale of Rs. 940-1660/-. The cadre for the +2 lecturers posted in the nationalized schools was not specified therein, though the posts were created in the same pay scale. The subsequent Advertisement No. 1/87 also unequivocally stated that the applications for +2 Lecturers in Government schools were invited in the BSES Cadre in the pay scale of Rs. 940- 1660/-. Those selected were then granted fortuitous appointment in either the government or the nationalized schools. That the posts were constituted in the BSES Cadre is adequately reinforced in the judgment dated 30.09.1997 in the CWJC No. 2445/1994 by Justice S.J Mukhopadhaya, through which, the artificial distinction in both categories of +2 lecturers (posted in either Government or Taken Over schools) was obliterated. It is a fact that the Bihar Pradesh +2 Lecturers’ Association moved Court primarily for redressal of the pay scale anomaly of the +2 lecturers appointed in the Government and taken over schools, out of the common advertisement No. 1/87. It was projected in those proceedings that while accepting the 5th Pay Revision Committee’s recommendations, the State Government provided for distinct pay scales to lecturers serving in the Government Secondary Schools and the Nationalized Secondary Schools. The Court noticed the discrimination between both sets of lecturers, performing similar duty with similar nature of job and same qualifications. The +2 lecturers accordingly were held entitled to same scale of pay, i.e., Rs. 2000- 3500/- as fixed for the members of the Subordinate Education Service (Junior Selection Grade). This way, not only the pay difference was eliminated but more significantly for this case, the lecturers serving in Government/Nationalized +2 schools were treated as equivalent to members of the BSES cadre by offering the same pay scale attached to the BSES members. Subsequently, in compliance of the judgment, the Finance Department notified the common pay scale of Rs. 2000- 3500/- for the +2 lecturers in the Taken Over schools vide its Resolution dated 10.06.1999, thereby effectively treating them to be at par with the Subordinate Education Service teachers. [Paras 20, 21][1150-B-G]

1.2 The above situation would negate the State’s contention that the +2 lecturers are outside the BSES cadre, only because the appointment letters stated that their appointment was against ex-cadre posts on temporary basis. Significantly, the pay scale mentioned in the appointment order was Rs. 940-1660/-, which matched the pay scale offered to the lecturers in the Junior Selection Grade of the BSES (as reflected in the notification dated 13.11.1985 and the advertisement No. 1/87). The appointment letter is at variance with all other relevant documents, such as the advertisement; the notification (13.11.1985) creating the posts in BSES; as well as the Finance Department notifications, offering pay scale equivalent to the members of the BSES. The appointment letters, despite suggesting the post to be of ex-cadre category, notably offered the same pay scale attached to Government school lecturers in the BSES Cadre. [Paras 22, 23][1150-H; 1151-A-D]

1.3 It is also argued by the State’s counsel that the recommendations of the Saran Singh Committee cannot be applied qua the respondents, since the posts of +2 lecturers were not in existence in 1977 and were created only in 1985. On this, it is seen that the government is closemouthed and rather vague on the total posts which existed in 1977; how many posts were created subsequently and the precise number of posts which existed as on 07.07.2006. Therefore, the State cannot be allowed to raise such contentions when they have failed to disclose how many posts existed initially and the stages at which, additional posts were created by the government. Besides, the merger decision (07.07.2006) pertinently omitted to say that only posts in existence in 1977, were intended to be merged. Moreover, the Government decision (06.10.2006), through which the +2 lecturers were denied the benefit of merger with the BES, was not founded on the ground that posts of +2 lecturers were not borne in 1977. The ostensible reason was that the +2 lecturers were never recognized in the BSES. Such attempt by the government to supplement reasons, not found in their order, cannot legally be permitted. In situation of this kind, the ratio in Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi is worth remembering where the Court so correctly declared that validity of an order by a statutory functionary must be judged by the reasons mentioned therein and supplementary reasons in the shape of affidavits must be excluded. The State must not be allowed to bring in additional explanation to justify their actions when those are conspicuous by their absence, in the government decision. [Paras 24-26][1151-E-H; 1152-A-B]

Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi 1978 (1) SCC 405 : [1978] 2 SCR 272; Commr. of Police, Bombay Vs. Gordhandas Bhanji AIR 1952 SC 16 : [1952] SCR 135 – relied on.

1.4 No intelligible differentia could be pointed out by the state’s counsel to sustain arbitrary classification between +2 lecturers and the BSES secondary level teachers, posted in government schools. [Para 27][1152-F]

1.5 Significantly, as per Advertisement 1/87, the lower pay scale of Rs. 850 – 1360/- was offered to the teachers in the Secondary Schools in the cadre of BSES as compared to the pay scale offered to the + 2 lecturers. Furthermore, the academic qualifications specified therein for + 2 Lecturers was Post Graduation in 2nd division, whereas for other posts, a bare graduate would satisfy the prescribed qualification. As such, the exclusion of the respondents from the BSES cadre and consequently from BES, despite rendering continuous services in the same government secondary schools as teacher members of the BSES, has led to a discriminatory situation, wherein, the BSES teachers who are junior (in terms of education qualifications and pay scale) to the respondents in Government secondary schools, have got the benefit of higher scale of pay and also avenues of promotion to key controlling positions in the education department. This would surely infringe the rights of the +2 lecturers, guaranteed under Article 14 and Article 16(1) of the Constitution. Instead of rectifying the anomalous situation noticed above, the Government, in a rather arbitrary fashion and without any application of mind to the issue, vide notification dated 23.06.2009, surprisingly positioned the +2 lecturers at par with the teachers of the nationalized secondary schools. The unacceptable justification given for this is that as a result of the +

2 lecturers’ placement into the cadre of nationalized school teachers, the +2 lecturers have been provided the promotional avenue to academic posts of Head Master, and higher scale has also been provided for them. However, the +2 lecturers are conspicuously denied the opportunities for promotion to key administrative posts which is available to those in the BES Cadre. Such arbitrary action of the government in favoring the BES officers to enable them to exclusively occupy the key administrative posts, was noticed and was subjected to court’s caustic comments in the previous rounds of litigation8. Having read those and also taking into account the repeated attempts by the state to inordinately favour those in the BES cadre, we are constrained to observe that the state government is not acting bonafide and is persisting in their iniquitous attempt to deny to the respondents, what is legitimately due to them. [Paras 28, 29][1152-G; 1153-A-E]

1.6 The following discriminatory action of the State is necessary to be noticed to indicate their iniquitous conduct. Firstly, the Bihar Non-Government Secondary Schools (Taken over of Control and Management) Act, 1981, does not authorize determination of the service conditions of the +2 lecturers. The 1981 Act was intended to provide for “taking over” of nongovernment secondary schools under the state control, for improvement, better organization and development of Secondary Education in the state of Bihar. The +2 lecturers in government schools cannot be encadred with teachers of ‘Taken Over Schools’ since the definition of ‘Teacher’ in the 1981 Act shows ‘Teacher in the Taken Over Secondary Schools’. Section 9 enables the State Government to determine the service conditions of the Headmaster, Teacher and non-teaching staff of only the Taken Over Secondary Schools(but not of government schools). Neither section 9 nor Section 15 of the 1981 Act empowers the State Government to amend Rules to expand the scope of the Act. As such, the 2009 Rules, introducing the notification (23.06.2009), purported to be framed under section 9 read with section 15 of the 1981 Act, are found to be at variance with the provisions and the purpose of the 1981 Act. The Notification (23.06.2009) is well beyond the ambit of the 1981 Act, and could not therefore have been issued, without the necessary amendments to the 1981 Act. [Para 30][1153-F-H; 1154-A-B]

1.7 The notification (23.06.2009) besides being legally untenable, would also deny the substantive legitimate expectations, the respondents nurtured, as members of the government schools in the BSES cadre. The denial is particularly glaring in the absence of promotional avenues for the respondents to the controlling/supervisory posts in the administrative wing of the education department. The respondents, in course of their service as +2 Lecturers, would reasonably expect to occupy the higher position in the department, depending upon their inter-se seniority in the common seniority list, but the Government action, restricting movement through artificial sub-grouping of +2 Lecturers with teachers of nationalized schools, have unreasonably belied their expectation. This would suggest that the respondents were led up the garden path by the appellants. [Para 31][1154-CE]

1.8 In the present case, the abuse of power is discernible in the State’s disparate decision in encadring the +2 lecturers with the teachers of nationalized schools, notwithstanding the contrary representation through the 1985 notification which created the +2 lecturer posts and the 1987 advertisement under which, the respondents entered service. Such manifest departure from the projected course smacks of arbitrariness and the government action, to selectively protect the interest of the BES cadre, does not conform to rules of justice and fair play.Where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents. As is well known, Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government’s action and the Bihar government in our opinion, failed to keep to their commitment by the impugned decision, which we find was rightly interdicted by the High Court. [Paras 33, 34][1154-G-H; 1155-A-D]

R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213 – referred to.

1.9 In the earlier rounds, this court in Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn. and also in the Contempt proceedings flowing therefrom in Bihar State Govt. Secondary School Teachers Assn. Vs. Ashok Kumar Sinha critically noted the vigorous attempts by the BES Association in obstructing the integration of the BSES with the BES and the unfair conduct of the Bihar government in safeguarding the interests of those in the BES cadre. Those previous challenges to the merger decision were rejected by the Court. As such the BES Association, as the party watching from the wings, cannot be permitted to secure now what they failed to achieve in the previous litigations. In circumstances like this it needs to be said that in an adversarial litigation, the fence sitters cannot be placed at par with the front runners. [Para 36][1156-AC]

1.10 The +2 lecturers’ posts were created in the BSES Cadre. This was represented in the Notification (13.11.1985), and also in the Advertisement No. 1/87. The conduct of the Government in providing pay scale parity with the BSES teachers in the secondary schools, reinforces such conclusion. These relevant and attending circumstances eclipse the implication of the ex-cadre reference in the appointment letters. What is also discernible is that the encadrement through notification dated 23.06.2009 has frustrated the legitimate expectations of the respondents and was undertaken with the unfair aim to block the respondents’ promotion to key positions, particularly in the administrative wing of the Education department. Such unfairness in State’s action cannot be countenanced by Court. Resultantly we record our approval with the reasoning and conclusions in the impugned judgment in favour of the +2 lecturers to the effect that they are indeed the members of the Subordinate Educational Service and the State Government must treat the +2 lecturers appointed pursuant to the Advertisement No. 1/87 as members of the Subordinate Educational Service and all service benefits as the members of the Subordinate Educational Service should therefore be extended to them. [Para 37][1156-C-F]

State of Bihar Vs. Janardan Rai , (2012) 13 SCC 59; Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn. (2012) 13 SCC 33 : [2012] 11 SCR 50; Bihar State Government Secondary School Teachers Association Vs. Ashok Kumar Sinha (2014) 7 SCC 416 : [ 2014] 7 SCR 371 – referred to. Bihar Education Service Assn. Vs. State of Bihar , (2008)

1 BLJR 431 – referred to.

R. V. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Ltd. [1990] 1 W.L.R 1545 – referred to.