STATE OF BIHAR VS SHYAMA NANDAN MISHRA Case

STATE OF BIHAR VS SHYAMA NANDAN MISHRA Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


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[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._7364_OF 2014
STATE OF BIHAR & ORS. APPELLANT(S)
VERSUS
SHYAMA NANDAN MISHRA RESPONDENT(S)
WITH
CIVIL APPEAL NOS._7371_OF 2014
CIVIL APPEAL NOS._7373_OF 2014
CIVIL APPEAL NOS._7365_OF 2014
CIVIL APPEAL NOS._7368_OF 2014
CIVIL APPEAL NOS._7374_OF 2014
J U D G M E N T
Hrishikesh Roy, J.
1. Heard Mr. P.S. Patwalia, learned Senior Counsel
appearing for the appellants. Also, heard Mr. Vinay
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Navare and Mr. V.N. Sinha, learned Senior Counsels
appearing for the contesting respondents. The
Intervener is represented by Mr. Vijay Hansaria,
learned Senior Counsel.
2. The challenge here is to the judgment and order
dated 30.4.2013 in CWJC Case No. 18793 of 2008 and
analogous cases whereby the Division Bench of the High
Court at Patna, granted relief to the writ petitioners
and declared that the +2 lecturers, both in the
Government and the nationalized (taken over) secondary
schools, appointed pursuant to Advertisement No.1/87,
have always been part of the Bihar Subordinate
Education Service(for short “BSES”)and thereby, they
are entitled to be merged with the Bihar Education
Service Class II (for short “BES”), pursuant to the
Government decision dated 07.07.2006. The Court also
interfered with the impugned notification dated
23.6.2009, which provided for the encadrement of the +2
lecturers with the teachers in the nationalized
secondary schools, which was found to be in
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contravention of Article 790 of the Bihar Education
Code and also contrary to the Government’s decision
dated 07.07.2006 and the Advertisement No. 1/87. Thus,
the impugned order dated 6.10.2006 and the notification
dated 23.6.2009 were quashed and set aside.
3. At the outset, it is imperative to take note of the
relevant background and the previous litigation rounds
which led to the present proceedings.
BACKGROUND
4. The Government of Bihar constituted a committee
headed by Shri Saran Singh in 1976, to address the
problem of stagnation etc. in Bihar Civil Service and
to consider opportunities for promotion. The
committee’s recommendations with respect to the Bihar
Education Department included the integration of 59
posts in the miscellaneous cadre (comprising of
teachers, professors, etc, who held isolated posts with
no definite prospects of promotion), into the Bihar
Education Service Cadre. In line with these
recommendations, the Government issued Regulation dated
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11.04.1977, upgrading 2465 sanctioned posts of teachers
of subordinate education service male and female cadre,
into Bihar Education Service Class II w.e.f 01.01.1977.
5. The Association representing the teachers of the
BSES filed a writ petition in the Patna High Court
claiming merger of their cadre with the BES, pursuant
to the resolution dated 11.04.1977. The writ petition
was allowed on 02.02.2000 and the subsequent LPA and
SLP were dismissed. Since the consequential benefits of
the merger were still not forthcoming, another writ
petition was filed, which too was allowed and affirmed
in the LPA. The civil appeal before this court was
dismissed on 19.04.20061, deciding the outcome in favor
of the writ petitioners, i.e., the members of the BSES.
6. In compliance of the aforesaid judgment of this
Court, a Resolution dated 07.07.2006 was issued,
whereby the cadre of BSES (Teaching Branch) (Male and
Female Teachers) was merged with the BES, Class–II
w.e.f. 01.01.1977. At this stage, members of the BES
1State of Bihar Vs. Janardan Rai ,(2012) 13 SCC 59
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Association, apprehending adverse impact on their
inter-se seniority, filed a writ petition, challenging
the merger. A Single Judge of the High Court allowed
the WP on 31.10.20072. Immediately after this judgment,
the State Government (without waiting for the outcome
of the LPA), in compliance of the Single Judge
judgment, quashed the merger resolution vide
notification dated 19.11.2007, thereby withdrawing the
financial benefits flowing therefrom.
7. The decision of the Single Judge was affirmed by the
Division Bench. The resultant SLP and the appeal
therefrom was ultimately allowed by this Court in a
detailed judgment dated 23.11.20123. Consequently, the
initial government decision (07.07.2006), by which the
cadre of the BSES teachers (teaching branch) was merged
with the BES, stood restored and the State was directed
to act accordingly. In arriving at the conclusion, the
Supreme Court pertinently observed that once the merger
2Bihar Education Service Assn. Vs. State of Bihar , (2008) 1 BLJR 431
3Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn.,(2012) 13
SCC 33
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decision was already upheld by this court in earlier
rounds of litigation and was also acted upon by the
State, the High Court should not have reopened the
matter at the instance of the BES Association. The
fluctuating stand and indecisiveness of the government
was also noted with displeasure by the Supreme Court in
its judgment.
8. The government, however, was dilly-dallying on the
aspect of restoration of the earlier position,
consequent upon the merger of the two cadres.
Ultimately, contempt proceedings were initiated by the
disgruntled members of the BSES in Bihar State
Government Secondary School Teachers Association Vs.
Ashok Kumar Sinha4, wherein this court had the occasion
to observe that the Bihar Education Service Rules, 2014
were in the teeth of the judgment rendered on
23.11.20125. This was because the Government had
introduced four sub-cadres in the BES (merged entity)
under 2014 Rules, conspicuously barring transfer from
4 (2014) 7 SCC 416
5Supra
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one sub-cadre into another. Those in the BSES were
placed in the teaching sub-cadre, where Principal would
be the highest promotional post whereas those in the
BES were put in administrative sub-cadre, who would
continue to control the school administration as
before. The teaching sub-cadre was yet again isolated
and also treated as a “dying cadre”. Through this act
of the government, those in the BSES were effectively
prevented from being transferred and posted in the
administrative sub-cadre. Glaringly, Rule 27 gave
option to members of the other sub-cadres for inclusion
in a different cadre on fulfillment of prescribed
qualifications, but no such option was made available
to the teaching sub-cadre.
9. Noticing the above attempt to deny equal benefits
to the BSES cadre vis-à-vis the BES cadre, the Supreme
Court significantly observed that the promulgation of
the 2014 Rules by the Bihar government, amounted to
circuitous contrivance, to maintain the position which
existed prior to the merger and to unjustly protect the
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interest of those in the BES. Accordingly, directions
were issued to revive the combined gradation list or in
the alternative, to suitably amend Rule 27 to give
effect to the real purpose of the merger.
PRESENT LITIGATION
10. The facts germane to the present appeal are now to
be noted. The Bihar Government in 1979 introduced the
10+2+3 education pattern (i.e. 10 years of schooling, 2
years of higher secondary and 3 years of college
graduation). At the relevant time, in the absence of
sufficient infrastructure, higher secondary education
was imparted by colleges. The posts of +2 lecturers
were sought to be created to impart +2 level teaching.
11. Pursuant to the above decision, the Bihar
Government on 13.11.1985 sanctioned 148 posts of
lecturers in Subordinate Service Selection Grade for
government schools and 264 posts of lecturers in
nationalized schools, providing common pay scale of Rs.
940-1660 for both categories of lecturers. It may be
highlighted that only the posts of the +2 lecturers in
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the Government schools were specified to be in the BSES
Selection Grade. Thereafter, the Bihar School Service
Board issued the advertisement No. 1/87, initiating the
process of selection. The advertisement, pertinently,
reflected the following:-
“Class – I:
Lecturers in the Subordinate Service Grade in
the +2 Stream (Inter level) Government
Boys/Girls High Schools.
 **** **** ****
Academic Qualification:
For the Cass – I posts: Second class Post
Graduation Degree in the concerned subject
from a recognized university.
For the Class -II and III posts of the
Subordinate Education Service (Education
Branch) for both male and female categories:
Trained graduate in the concerned Subject."
(SIC)
**** **** ****
The candidates were to apply for posts of lecturer
in the Subordinate service grade and the advertisement
prescribed Post Graduation in 2nd division, as necessary
qualification for the posts.
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12. The selected candidates were then issued the
appointment orders, which reflected that the
appointments were being made to newly created ex-cadre
posts in +2 schools, on ad-hoc and temporary basis.
These temporary appointments were continued for
succeeding academic years under various government
notifications, issued from time to time.
13. The main cause for the present litigation is that
while implementing the merger decision (07.07.2006), an
exception was carved out by the government on
06.10.2006, whereunder, the benefit of merger into BES
was denied to the +2 lecturers in Government schools.
The ostensible premise for the deviation was that the
+2 lecturers were never treated or recognized as part
of the BSES cadre. The +2 lecturers being aggrieved
thus, moved the High Court in CWJC 14009/2006 and other
connected writ petitions, contending that their posts
were created in the BSES. This position was also
reflected in the advertisement No. 1/87 through which
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they were recruited. In effect, the benefits of the
merger with the BES were claimed in these matters.
14. During the pendency of the above Writ Petitions in
the High Court, the State Government on 23.06.2009, in
exercise of powers under Section 9 read with Section 15
of the Bihar Non-Government Secondary Schools (Taking
over of Control and Management) Act, 1981, framed the
Bihar Government Higher Secondary Schools (Service
Conditions) (Amendment) Rules, 2009 (for short “2009
Rules”) and notably decided to amend the Bihar Takenover Secondary Schools (Service Conditions) Rules,
1983. Through the 2009 amendment, the lecturer was
defined to mean the +2 lecturers who were appointed
pursuant to the Advertisement No. 1/87 and they were
encadred with the nationalized secondary school
teachers.
15. As a result of the above encadrement with the
teachers of the nationalized school category, further
challenge was generated in the High Court by the +2
lecturers. It was specifically contended that the +2
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lecturers have always been treated as above the
secondary school teachers in nationalized schools and
therefore encadrement of the two unequals is unjust.
16. The High Court in the impugned judgment
categorically held that the +2 lecturers who were
appointed pursuant to Advertisement No. 1/87, were
always a part of the BSES. Concomitantly, the
artificial grouping of +2 lecturers with the teachers
of nationalized schools (vide notification 23.06.2009),
was found to be unjustified and interdicted. While
concluding thus, the High Court noted that
Advertisement No.1/87 specifically mentioned
Subordinate Education Service. Besides the “plus two
secondary schools”, where the lecturers were imparting
education, were envisaged as part of the BSES as was
clearly discernable from Article 790 of the Bihar
Education Code. While opining in favour of the present
respondents, the Court relied upon the earlier judgment
(30.9.1997) of Justice S.J. Mukhopadhaya in CWJC No.
2445/1994 to say that postings in either the government
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or nationalized schools at the relevant time were
fortuitous and the rights of +2 lecturers would not
depend on their chance postings in either of the
schools. The Division Bench also gathered that mere
reference to ex-cadre posts in the appointment letters
and lack of decision by government in assimilating the
+ 2 lecturers into the cadre of mainstream teacher,
will not deprive them of their legitimate rights. The
Court took a dim view of the indecisiveness and
fluctuating stand of the Bihar government which led to
a spate of litigations. Thus, relief was granted to the
respondents with the declaration that the +2 lecturers
of both schools, who were appointed under the
Advertisement no. 1/87, have always been part of the
BSES and consequently of the BES.
17. Challenging the impugned judgment, Mr. P.S.
Patwalia, learned senior counsel in the appeal arising
out of the lead SLP, submits for the State of Bihar
that the appointment letters specifically mention that
the +2 Lecturers were appointed in Ex Cadre Posts and
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the decision with respect to their separate cadre
formation was to be taken shortly. Further, the posts
of + 2 lecturers were not in existence in 1977, when
the policy decision to merge BSES with BES was taken.
According to Mr. Patwalia, the encadrement is in
conformity with the Bihar Non-Government Secondary
Schools (Taking over of Control and Management) Act,
1981, since the recruitment of the + 2 lecturers was
made by the School Service Board which is a statutory
body formed under section 10 of the Act. Appellant’s
next submission is that in previous rounds of
litigation, the respondents sought only pay scale
parity with members of the BSES and as such, the Writ
Petition in the High Court in the current round is
barred by the principles of constructive res judicata
besides inordinate delay. The reference to the BSES,
Selection Grade in the Advertisement, according to the
State’s counsel, was made only to identify the grade
for the post of lecturers but not for the purpose of
their inclusion into the BSES cadre.
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18. On the other hand, Mr. Vinay Navare, learned Senior
Counsel appearing on behalf of the + 2 lecturers
(respondents) would argue that the terms of the policy
decision dated 13.11.1985 as well as the Advertisement
No. 1/87 are unambiguous and it is clearly set out that
the posts of + 2 lecturers in Government schools are
created in the Junior Selection Grade of BSES.
According to Mr. Navare, the expression ex-cadre in the
appointment order was incorporated only to allay the
anxiety of the Assistant Teachers in the Government
Secondary Schools (members of the BSES), who because of
merger, apprehended loss of their seniority to the +2
lecturers. The 1981 Act controls taking over of Nongovernment Secondary Schools and the notification
introduced by the 2009 Rules, framed under the 1981
Act, for encadrement of the +2 lecturers of the
Government schools with the nationalized schools,
without the relevant amendments to the 1981 Act, is
argued by Mr. Navare to be neither conclusive nor
legally acceptable.
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19. In his turn, Mr. Vijay Hansaria, the learned Senior
Counsel representing the interveners i.e. the Bihar
Education Service Association argues that the members
of the BES Association should not lose out on
seniority, on account of the merger of the contesting
respondents into the BES Cadre, from the initial date
of their appointment. This is apart from pointing to
the Bihar Education Service Class-I and Bihar Education
Service Class-II Rules 1973 and submitting that unless
due rules are amended, neither executive action nor
court orders can be a way out. He further contended
that the matter falls in the realm of state policy. The
aspect of the appointments being ex-cadre is stressed.
 DISCUSSIONS AND FINDINGS
20. 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
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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.
21. 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
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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.
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22. 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).
23. The noteworthy take away from above is that 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. The learned counsel for the respondents on
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this aspect therefore appears to be correct in his
submission that the reference to ex-cadre in the
appointment letters was only to allay the anxiety of
the Assistant Teachers in the Government Secondary
Schools (members of the BSES), who apprehended loss of
their seniority. In such circumstances, the ex-cadre
reference in the appointment letters must not, in our
view, eclipse all the other contemporaneous documents,
supporting the contentions of the respondents.
24. 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
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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.
25. 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 Delhi6 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.
6 1978 (1) SCC 405
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26. Staying with the same point, we may also remind
ourselves of the telling opinion in Commr. of Police,
Bombay Vs. Gordhandas Bhanji7 where J. Vivian Bose
illuminatingly wrote as under:
“Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the
light of explanations subsequently given by the
officer making the order of what he meant, or
of what was in his mind, or what he intended to
do. Public orders made by public authorities
are meant to have public effect and are
intended to affect the actings and conduct of
those to whom they are addressed and must be
construed objectively with reference to the
language used in the order itself.”
Taking a cue from above, it must be said
unequivocally that 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.
27. The appellants’ other contention is that the +2
lecturers have no semblance of similarity with the
BSES, to enable assimilation into the BES. Only for
this ostensible reason, the +2 lecturers in
7 AIR 1952 SC 16
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nationalized and Government schools were amalgamated
with the teachers of nationalized schools, vide
notification dated 23.06.2009. On this, what is
relevant is that no intelligible differentia could be
pointed out by the state’s counsel to sustain such
arbitrary classification between +2 lecturers and the
BSES secondary level teachers, posted in government
schools. Therefore, such contention from the
appellants’ side, being devoid of any foundation, is
considered but rejected.
28. 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
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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.
29. 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
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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.
30. The following discriminatory action of the State is
necessary to be noticed to indicate their iniquitous
conduct. Firstly, the Bihar Non-Government Secondary
8
See discussion Supra Note 4
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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 non-government
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
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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.
31. Next, let us test the impugned action of the
Government on the anvil of the Doctrine of Legitimate
Expectation. 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,
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have unreasonably belied their expectation. This would
suggest that the respondents were led up the garden
path by the appellants.
32. To understand the legal consequences arising
therefrom, useful reference can be made to R. V. Inland
Revenue Commissioners, ex parte M.F.K. Underwriting
Agents Ltd.9 (1989) where Lord Justice of Appeal, Thomas
Bingham, while invoking fairness as a rationale for
protecting legitimate expectations, expressed the
following :-
“If a public authority so conducts itself as to
create a legitimate expectation that a certain
course will be followed it would often be
unfair if the authority were permitted to
follow a different course to the detriment of
one who entertained the expectation,
particularly if he acted on it. ... The
doctrine of legitimate expectation is rooted in
fairness.”
33. Another facet of denial of legitimate expectations
is underscored by the Court of Appeal of England and
9[1990] 1 W.L.R 1545
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Wales in the seminal case of Coughlan10, where the Court
preferred to use abuse of power as one of the criteria
for testing whether a public body could resile from a
prima facie legitimate expectation. In the Court’s
opinion, if the government authority induced an
expectation which was substantive, the upsetting of
that expectation, through departure from the expected
course of action in the absence of compelling public
interest, would be so unfair, that it would amount to
abuse of power. 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
10R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213
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cadre, does not conform to rules of justice and fair
play.
34. Taking a cue from above, 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.
35. Next thing to consider is the plea of the BES
Association as the Intervenor in this proceeding and
the submissions made on their behalf by the learned
senior counsel Mr. Vijay Hansaria. On this, the first
observation to be made is that the rights of an
intervener are circumscribed. The BES could have
arrayed themselves in the High Court but decided at
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their own peril, to keep away. The Writ Petition of the
respondent was pending for about 6 years in the High
Court and those in the BES, who are holding key
positions in the education department, could not be
oblivious of CWJ Case No. 18793 of 2008 and other
connected matters. As such, within the limited scope
available to them, the intervenors, who were sitting on
the fence all along, cannot now be permitted to plead a
new case for the first time before this Court.
Moreover, the Counter Affidavit filed by the State
before the High Court, do not persuade us to lean in
favour of the members of the BES Association.
36. In the earlier rounds, this court in Bihar State
Govt. Secondary School Teachers Assn. Vs. Bihar
Education Service Assn.11 and also in the Contempt
proceedings flowing therefrom in Bihar State Govt.
Secondary School Teachers Assn. Vs. Ashok Kumar Sinha12
critically noted the vigorous attempts by the BES
Association in obstructing the integration of the BSES
11Supra
12Supra
Page 32 of 34
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.
37. In consequence of the foregoing discussion, our
finding is that 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
Page 33 of 34
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.
38. Accordingly, no good reasons are seen to interfere
with the impugned judgment. The appeals stand dismissed
without any order on costs. However, since the time
stipulated by the High Court has expired, the State is
Page 34 of 34
granted 6 months’ time to ensure compliance with High
Court’s direction in letter and spirit.
………………………………………………………J.
 [K.M. JOSEPH]
………………………………………………………J.
 [HRISHIKESH ROY]
NEW DELHI
MAY 05, 2022

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