State of Bihar & Ors. vs The Bihar Secondary Teachers Struggle Committee, Munger & Ors.

1. The cadre of Government Teachers with which parity or equality has been sought by Niyojit Teachers [appointed under Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006] is a dying or a vanishing cadre. A conscious decision was taken by the State not to make any appointments in this cadre of Government Teachers and post 2006, with the exception all appointments in the State have been in terms of and under the provisions of 2006 Rules. The statistics also show that presently there are about 57,293 elementary teachers in the cadre of Government Teachers and 7,800 Government Teachers at the secondary level which means there are about 66,000 Government teachers in the State as against nearly 4 lakh Niyojit Teachers in the State. It is this group of 4 lakhs which is seeking parity with a number which is less than 1/5th and by very nature which is a dying and vanishing cadre. Out of those 66,000, more than 31,000 were those who came to be appointed as one-time exception. Leaving aside that issue, the fact remains that it is a larger body of more than 4 lakhs which is seeking parity with a dying or a vanishing cadre. [Para 58] [822-D-G]

2. This Court has accepted following limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’:- (i) The doctrine of ‘equal pay for equal work’ is not an abstract doctrine. (ii) The principle of ‘equal pay for equal work’ has no mechanical application in every case. (iii) The very fact that the person has not gone through the process of recruitment may itself, in certain cases, makes a difference. (iv) The application of the principle of ‘equal pay for equal work’ requires consideration of various dimensions of a given job.(v) Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere.(vi) Granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. (vii) Equation of posts and salary is a complex matter which should be left to an expert body. (viii) Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences. (ix) Before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment. (x) In a given case, mode of selection may be considered as one of the factors which may make a difference. [Para 68] [842-B-G]

3. It was open to the State to have two distinct cadres namely that of ‘Government Teachers’ and ‘Niyojit Teachers’ with Government Teachers being a dying or vanishing cadre. The incidents of these two cadres could be different. The idea by itself would not be discriminatory. The pay structure given to the Niyojit Teachers was definitely lower than what was given to Government Teachers but the number of Government Teachers was considerably lower than the number of Niyojit Teachers. Presently there are just about 66,000 Government Teachers in the State as against nearly 4 lakh Niyojit Teachers. There is scope for further appointment of about 1 lakh teachers which could mean that as against 5 lakh teachers the number of State Teachers would progressively be going down. The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers. [Para 76] [855-E-H; 856-A-B]

4. If a pay structure is normally to be evolved keeping in mind factors such as “method of recruitment” and “employer’s capacity to pay” and if the limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’ admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advances made by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and the State had not faltered on any count. The State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources. [Para 77] [856-B-F]

5. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider. [Para 78] [856-G-H; 857-A-B]

6. There has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. The efforts on part of the State Government cannot be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for consideration. [Para 79] [857-B-C]

7. Great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve. [Para 79] [857-D-F]

8. At the initial stage the Niyojit Teachers were given such emoluments which were lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. After two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State. [Para 80] [857-G-H; 858-A-C]

State of Punjab vs. Joginder Singh 1963 Suppl. 2 SCR

169 ; Zabar Singh and others v. The State of Haryana and others (1972) 2 SCC 275 : [1973] 1 SCR 608 – followed.

State of Punjab and others v. Jagjit Singh and others (2017) 1 SCC 148 : [2016] 7 SCR 350 – held per in curium.

Nand Kishore Ojha v. Anjani Kumar Singh (2014) 11 SCC 405 ; Jaipal and others v. State of Haryana and others AIR 1988 SC 1504 : [1988] 1 Suppl. SCR 411 ; Tarsem Lal Gautam and another v. State Bank of Patiala and others (1989) 1 SCC 182 : [1988] 3 Suppl. SCR 479 ; V. Markendeya and others v. State of Andhra Pradesh and others (1989) 3 SCC 191 : [1989]

2 SCR 422 ; Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and others v. State of Karnataka and others (1990) 2 SCC 396 : [1990] 1 SCR 544 ; Secretary, Finance Department and others v. West Bengal Registration Service Association and others 1993 Supp

(1) SCC 153 : [1992] 1 SCR 897 ; State of U.P. and others v. Ministerial Karamchari Sangh (1998) 1 SCC

422 : [1997] 4 Suppl. SCR 484 ; State of Haryana and another v. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72 : [2002] 1 Suppl. SCR

118 ; S.C. Chandra and others v. State of Jharkhand and others (2007) 8 SCC 279 : [2007] 9 SCR 130 ; Official Liquidator v. Dayanand and others (2008) 10 SCC 1 ; State of Punjab and another v. Surjit Singh and others (2009) 9 SCC 514 : [2009] 12 SCR 394 ; Steel Authority of India Limited and others v. Dibyendu Bhattacharya (2011) 11 SCC 122 : [2010] 13 SCR

429 ; Gopal Chawala and others v. State of Madhya Pradesh and others (2014) 13 SCC 792 ; M.M.L. Aurora and others v. Union of India and others 1995 Supp (1) SCC 279 ; Bidi Supply Company v. The Union of India and others 1956 SCR 267 ; The State of Gujarat and another v. Shri Ambica Mills Limited, Ahmedabad and another (1974) 4 SCC 656 : [1974] 3 SCR 760 ; The Superintendent and Remembrancer of Legal Affairs, West Bengal v. Girish Kumar Navalakha and others (1975) 4 SCC 754 : [1975] 3 SCR 802 ; H.H. Shri Swamiji of Shri Amar Mutt and others v. Commissioner, Hindu Religious and Charitable Endowments Department and others (1979) 4 SCC

642 : [1980] 1 SCR 368 ; Col. A.S. Iyer and others v. V. Balasubramanyam and others (1980) 1 SCC

634 : [1980] 1 SCR 1036 ; Javed Niaz Beg and another v. Union of India and another 1980 Supp SCC 155 ; Malpe Vishwanath Acharya and others v. State of Maharashtra and another (1998) 2 SCC 1 : [1997] 6 Suppl. SCR 717 ; Javed and others v. State of Haryana and others (2003) 8 SCC 369 : [2003] 1 Suppl. SCR 947 ; State of Maharashtra and others v. Jalgaon Municipal Council and others (2003) 9 SCC

731 : [2003] 1 SCR 1112 ; Sooraram Pratap Reddy and others v. District Collector, Ranga Reddy District and others (2008) 9 SCC 552 : [2008] 13 SCR 126 ; Shivashakti Sugars Limited v. Shree Renuka Sugar Limited and others (2017) 7 SCC 729 ; Kishori Mohanlal Bakshi v. Union of India & Ors. AIR 1962 SC 1139 ; Randhir Singh v. Union of India and others (1982) 1 SCC 618 : [1982] 3 SCR 298 ; State of Haryana and others v. Jasmer Singh and others (1996)

11 SCC 77 : [1996] 8 Suppl. SCR 592 ; Orissa University of Agriculture and Technology and another v. Manoj K Mohanty (2003) 5 SCC 188 : [2003] 3 SCR

753 ; Government of W. B. v. Tarun K. Roy and others (2004) 1 SCC 347 : [2003] 5 Suppl. SCR 656 ; Indian Drugs & Pharmaceuticals Limited v. Workmen, Indian Drugs & Pharmaceuticals Limited (2007) 1 SCC 408 : [2006] 9 Suppl. SCR 73 ; Dhirendra Chamoli and Another v. State of U.P (1986) 1 SCC 637 ; Bhagwan Dass and others v. State of Haryana and others (1987)

4 SCC 634 : [1987] 3 SCR 714 ; Ashoka Kumar Thakur v. Union of India and others (2008) 6 SCC 1 : [2008]

4 SCR 1 ; Society for Unaided Private Schools of Rajasthan v. Union of India and Another (2012) 6 SCC

1 : [2012] 2 SCR 715 ; Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka and Others (1992) 2 SCC 29 : [1992] 1 SCR 397 ; Baseeruddin M. Madari and others v. State of Karnataka and Others 1995 Supp (4) SCC 111; State of Uttar Pradesh and another v. Anand Kumar Yadav and others (2018) 13 SCC 560 : [2017] 10 SCR 428 ; Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others (1993) 1 SCC 645 : [1993] 1 SCR

594 ; M.C. Mehta v. State of T.N. and others (1996) 6 SCC 756 : [1996] 9 Suppl. SCR 726 ; Secretary, State of Karnataka and others v. Umadevi (3) and others (2006) 4 SCC 1 : [2006] 3 SCR 953 ; State of Gujarat and Another v. Raman Lal Keshav Lal Soni and Others (1983) 2 SCC 33 : [1983] 2 SCR 287 ; State of U.P. and Others v. Chandra Prakash Pandey and Others (2001) 4 SCC 78 : [2001] 2 SCR 506 ; Shayara Bano v. Union of India and Others (2017) 9 SCC 1 : [2017]

7 SCR 797 ; E. P Royappa v. State of Tamil Nadu and Another (1974) 4 SCC 3 : [1974] 2 SCR 348 ; Hussainara Khatoon and Others (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98 : [1979] 3 SCR

532 ; Khatri and Others (II) v. State of Bihar and Others (1981) 1 SCC 627 : [1981] 2 SCR 408 ; Brij Mohan Lal v. Union of India and Others (2012) 6 SCC 502 : [2012] 5 SCR 305 ; Arindam Chattopadhyay and Others v. State of West Bengal and Others (2013) 4 SCC 152 ; Bihar State Government Secondary School Teachers Association vs. Bihar Education Service Association and others (2012) 13 SCC 33 : [2012] 11 SCR 50; State of Uttar Pradesh and others v. Shiv Kumar Pathak and others (2018) 12 SCC 595 : [2017] 7 SCR 905 ; Municipal Council, Ratlam v. Shri Vardichand and others (1980) 4 SCC 162 : [1981] 1 SCR 97 ; Secretary and Mahatama Gandhi Mission and another v. Bhartiya Kamgar Sena and others (2017) 4 SCC 449 ; Mohini Jain v. State of Karnataka and others (1992) 3 SCC

666 : [1992] 3 SCR 658 ; State of Himachal Pradesh v. H.P. State Recognised & Aided Schools Managing Committees and others (1995) 4 SCC 507 ; Workmen represented by Secretary v. Reptakos Brett. & Co. Limited and another (1992) 1 SCC 290 : [1991] 2 Suppl. SCR 129 ; Chandigarh Administration and others v. Rajni Vali and others (2000) 2 SCC 42 : [2000] 1 SCR 158 ; Maneka Gandhi v. Union of India and another (1978) 1 SCC 248 : [1978] 2 SCR 621 ; State of Haryana and another v. Tilak Raj and others (2003)

6 SCC 123 : [2003] 1 Suppl. SCR 522 ; All India Bank Employees’ Association v. National Industrial Tribunal and others (1962) 3 SCR 269 ; Navtej Singh Johar and others v. Union of India through Secretary, Ministry of Law and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379 ; Acharya Maharajshri Narendra Prasadji

Anandprasadji Maharaj and others v. The State of Gujarat and others (1975) 1 SCC 11 : [1975] 2 SCR

317 ; Assam Sanmilita Mahasangha and others v. Union of India and others (2015) 3 SCC 1 ; Subramanian Swamy v. Union of India, Ministry of Law and others (2016) 7 SCC 221 : [2016] 3 SCR 865 ; Kishori Mohanlal Bakshi v. Union of India AIR 1962 SC 1139 – referred to.

Per Abhay Manohar Sapre, J. : (Concurring)

HELD: The question involved in the present appeals needs to be decided in the light of the law laid down by two decisions of the Constitution Bench rendered in *Joginder Singh and **Zabar Singh cases. Firstly because it is a decision rendered by the Constitution Bench; secondly because it is prior in point of time; and thirdly because the law laid down in later decisions has to be read in the light of the law laid down by the Constitution Bench. [Paras 9] [860-F-G]

*State of Punjab v. Joginder Singh 1963 Suppl (2) SCR

169 ; **Zabar Singh & Ors. v. State of Haryana and Ors. (1972 ) 2 SCC 275 : [1973] 1 SCR 608 – followed.

Bidi Supply Co. v. Union of India & Ors. AIR 1956 SC

479 : [1956] SCR 267 ; N. Meera Rani v. Govt. of Tamil Nadu & Anr. AIR 1989 SC 2027 : [1989] 3 SCR

901 – relied on.

Rameshwar Shaw v. District Magistrate, Burdwan AIR 1964 SC 334 : [1964] SCR 921 – referred to.