STATE OF BIHAR & ORS. versus THE BIHAR SECONDARY TEACHERS STRUGGLE COMMITTEE, MUNGER & ORS.

[2019] 7 S.C.R.

STATE OF BIHAR & ORS.

THE BIHAR SECONDARY TEACHERS STRUGGLECOMMITTEE, MUNGER & ORS.

(Civil Appeal No. 4862 of 2019 etc.)

MAY 10, 2019

[ABHAY MANOHAR SAPRE AND UDAY UMESH LALIT. JJ.]

Service Law:

CPay parity/’Equal pay for equal work’ – Sought by NiyojitTeachers[appointed under Bihar Panchayat Elementary Teachers(Employment and Service Conditions) Rules, 2006] – With the cadreof Government teachers – Permissibility – Held: The cadre ofGovernment teachers with which parity is sought was dying/vanishing cadre – The mode of recruitment of Niyojit teachers wasDcompletely different from that of the Government teachers – paystructure is normally evolved keeping in mind factors such as‘method of recruitment’ and ‘employer’s capacity to pay’ – Thedistinction in process of recruitment is one of the limitations/qualifications to the applicability of the doctrine of ‘equal pay forEequal work’ – The advances made by State on the front of spreadingeducation to the remotest corner of the State was possible only byrational use of resources of the State – Best utilisation of resourcesand which factors are to be emphasized more, are policy matters –The attempt of the State in making over the process of selection toPanchayati Raj Institutions and letting the cadre of State teachersFto be dying or vanishing cadre were part of the mechanism forachieving object of spreading education and were part of integratedpolicy – Judicial intervention in such matters can create tremendousimbalance and cause great strain on budgetary resources – Thus,there has been no violation of the rights of Niyojit Teachers norGhas there been any discrimination against them – Constitution ofIndia – Art.21 – Right of Children to Free and CompulsoryEducation Act, 2009.

Doctrine:

Doctrine of ‘equal pay for equal work’ – Applicability of.H

Allowing the appeals, the Court

HELD: Per U. U. Lalit, J. :

1. The cadre of Government Teachers with which parity orequality has been sought by Niyojit Teachers [appointed underBihar Panchayat Elementary Teachers (Employment and ServiceConditions) Rules, 2006] is dying or vanishing cadre. Aconscious decision was taken by the State not to make anyappointments in this cadre of Government Teachers and post2006, with the exception all appointments in the State have beenin terms of and under the provisions of 2006 Rules. The statisticsalso show that presently there are about 57,293 elementaryteachers in the cadre of Government Teachers and 7,800Government Teachers at the secondary level which means thereare about 66,000 Government teachers in the State as againstnearly 4 lakh Niyojit Teachers in the State. It is this group of 4lakhs which is seeking parity with number which is less than 1/5[th] and by very nature which is dying and vanishing cadre. Outof those 66,000, more than 31,000 were those who came to beappointed as one-time exception. Leaving aside that issue, thefact remains that it is larger body of more than 4 lakhs which isseeking parity with dying or vanishing cadre. [Para 58][822-D-G]2. This Court has accepted following limitations orqualifications to the applicability of the doctrine of ‘equal pay forequal work’:- (i) The doctrine of ‘equal pay for equal work’ is notan abstract doctrine. (ii) The principle of ‘equal pay for equalwork’ has no mechanical application in every case. (iii) The veryfact that the person has not gone through the process ofrecruitment may itself, in certain cases, makes difference. (iv)The application of the principle of ‘equal pay for equal work’requires consideration of various dimensions of given job.(v)Thus normally the applicability of this principle must be left to beevaluated and determined by an expert body. These are notmatters where writ court can lightly interfere.(vi) Granting payscales is purely executive function and hence the court shouldnot interfere with the same. It may have cascading effect creatingall kinds of problems for the Government and authorities. (vii)Equation of posts and salary is complex matter which should be

FGH

Aleft to an expert body. (viii) Granting of pay parity by the courtmay result in cascading effect and reaction which can haveadverse consequences. (ix) Before entertaining and acceptingthe claim based on the principle of equal pay for equal work, theCourt must consider the factors like the source and mode ofrecruitment/appointment. (x) In given case, mode of selectionBmay be considered as one of the factors which may make adifference. [Para 68] [842-B-G]

3. It was open to the State to have two distinct cadres namelythat of ‘Government Teachers’ and ‘Niyojit Teachers’ withGovernment Teachers being dying or vanishing cadre. TheCincidents of these two cadres could be different. The idea byitself would not be discriminatory. The pay structure given tothe Niyojit Teachers was definitely lower than what was given toGovernment Teachers but the number of Government Teacherswas considerably lower than the number of Niyojit Teachers.DPresently there are just about 66,000 Government Teachers inthe State as against nearly 4 lakh Niyojit Teachers. There isscope for further appointment of about 1 lakh teachers whichcould mean that as against 5 lakh teachers the number of StateTeachers would progressively be going down. The mode ofrecruitment of Niyojit Teachers is completely different from thatEof the Government Teachers. [Para 76] [855-E-H; 856-A-B]

4. If pay structure is normally to be evolved keeping inmind factors such as “method of recruitment” and “employer’scapacity to pay” and if the limitations or qualifications to theapplicability of the doctrine of ‘equal pay for equal work’ admitFinter alia the distinction on the ground of process of recruitment,the stand taken on behalf of the State Government is notunreasonable or irrational. Going by the facts and the statisticspresented by the State Government, it was an enormous task ofhaving the spread and reach of education in the remotest corners.GFurthermore, the literacy rate of the State which was lagging farbehind the national average was also matter which requiredattention. The advances made by the State on these fronts arequite evident. All this was possible through rational use ofresources. How best to use or utilise the resources and whatemphasis be given to which factors are all policy matters and theH

State had not faltered on any count. The State was justified inhaving two different streams or cadres. The attempt in makingover the process of selection to Panchayati Raj Institutions andletting the cadre of State Teachers to be dying or vanishingcadre were part of the same mechanics of achieving the spreadof education. These issues were all part of an integrated policyand if by process of judicial intervention any directions are issuedto make available same salaries and emoluments to NiyojitTeachers, it could create tremendous imbalance and cause greatstrain on budgetary resources. [Para 77] [856-B-F]5. It is true that the budgetary constraints or financialimplications can never be ground if there is violation ofFundamental Rights of citizen. Similarly, while construing theprovisions of the Right of Children to Free and CompulsoryEducation Act, 2009 and the Rules framed thereunder, thatinterpretation ought to be accepted which would make the Rightavailable under Article 21A reality. As the text of the Articleshows the provision is essentially child-centric. There cannotbe two views as regards the point that Free and CompulsoryEducation ought to be quality education. However, such premisecannot lead to the further conclusion that in order to have qualityeducation, Niyojit Teachers ought to be paid emoluments at thesame level as are applicable to the State Teachers. The modalitiesin which expert teachers can be found, whether by giving thembetter scales and/or by insisting on threshold ability which couldbe tested through examinations such as TET Examination arefor the Executive to consider. [Para 78] [856-G-H; 857-A-B]

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

7. Great strides have been made by the State in the lastdecade. It has galvanised itself into action and not only achieved

Athe objectives of having schools in every neighbourhood but hasalso succeeded in increasing the literacy rate. It has alsosucceeded in having more girl children in the stream of educationand consequently the TFR, has also improved to great extent.If these are the benefits or rewards which the society stands togain and achieve, the State ought to be given appropriate freeBplay. The tabular charts placed on record by the State also showcontinuous improvements made by the State in the packages madeavailable to the Niyojit Teachers. Said attempts also show thatthe State is moving in the right direction and the gap which ispresently existing between the Government Teachers and theCNiyojit Teachers would progressively get diminished.Considering the large number of Niyojit Teachers as against theGovernment Teachers, the steps taken by the State as evidentfrom various tabular charts presented by it are in the rightdirection. At this juncture, any directions as have been passed

by the High Court, may break even tempo which the State hasDconsistently been able to achieve. [Para 79] [857-D-F]

8. At the initial stage the Niyojit Teachers were given suchemoluments which were lesser than peons and clerks in the sameschool is matter which requires attention. It is true that afterhaving put in two years of service, the emoluments made availableEto Niyojit Teachers show some improvements but the disparityat the initial stage is more than evident. The State may certainlybe entitled to devise pay structure for Niyojit Teachers and thecourts may not interfere in policy matters but, if there is animbalance of the nature as presented before this Court, the matterFraises concern. The teachers must be entitled to decentemoluments. After two years of service with proposedenhancement as per recommendations of the three memberCommittee the scales payable to Niyojit Teachers would showsome increase as against those in respect of peons and clerks.

The State may consider raising the scales of Niyojit Teachers atGleast to the level suggested by the Committee, without insistingon any test or examination advised by the Committee. Thosewho clear such test or examination, may be given even betterscales. This is only suggestion which may be considered by theState. [Para 80] [857-G-H; 858-A-C]H

State of Punjab vs. Joginder Singh 1963 Suppl. 2 SCR169 ; Zabar Singh and others v. The State of Haryanaand 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 incurium.

Nand Kishore Ojha v. Anjani Kumar Singh (2014) 11SCC 405 ; Jaipal and others v. State of Haryana andothers AIR 1988 SC 1504 : [1988] 1 Suppl. SCR 411 ;Tarsem Lal Gautam and another v. State Bank of Patialaand others (1989) 1 SCC 182 : [1988] 3 Suppl.SCR 479 ; V. Markendeya and others v. State ofAndhra Pradesh and others (1989) 3 SCC 191 : [1989]2 SCR 422 ; Dharwad Distt. P.W.D. Literate Daily WageEmployees Association and others v. State of Karnatakaand others (1990) 2 SCC 396 : [1990] 1 SCR 544 ;Secretary, Finance Department and others v. West BengalRegistration Service Association and others 1993 Supp(1) SCC 153 : [1992] 1 SCR 897 ; State of U.P. andothers v. Ministerial Karamchari Sangh (1998) 1 SCC422 : [1997] 4 Suppl. SCR 484 ; State of Haryana andanother v. Haryana Civil Secretariat Personal StaffAssociation (2002) 6 SCC 72 : [2002] 1 Suppl. SCR 118 ; S.C. Chandra and others v. State of Jharkhandand others (2007) 8 SCC 279 : [2007] 9 SCR 130 ;Official Liquidator v. Dayanand and others (2008) 10SCC 1 ; State of Punjab and another v. Surjit Singhand others (2009) 9 SCC 514 : [2009] 12 SCR 394 ;Steel Authority of India Limited and others v. DibyenduBhattacharya (2011) 11 SCC 122 : [2010] 13 SCR 429 ; Gopal Chawala and others v. State of MadhyaPradesh and others (2014) 13 SCC 792 ; M.M.L.Aurora and others v. Union of India and others 1995Supp (1) SCC 279 ; Bidi Supply Company v. The Unionof India and others 1956 SCR 267 ; The State ofGujarat and another v. Shri Ambica Mills Limited,Ahmedabad and another (1974) 4 SCC 656 : [1974] 3

SCR 760 ; The Superintendent and Remembrancer ofLegal Affairs, West Bengal v. Girish Kumar Navalakhaand others (1975) 4 SCC 754 : [1975] 3 SCR 802 ;H.H. Shri Swamiji of Shri Amar Mutt and others v.Commissioner, Hindu Religious and CharitableEndowments Department and others (1979) 4 SCC642 : [1980] 1 SCR 368 ; Col. A.S. Iyer and others v.V. Balasubramanyam and others (1980) 1 SCC634 : [1980] 1 SCR 1036 ; Javed Niaz Beg and anotherv. Union of India and another 1980 Supp SCC 155 ;Malpe Vishwanath Acharya and others v. State ofMaharashtra and another (1998) 2 SCC 1 : [1997] 6Suppl. SCR 717 ; Javed and others v. State of Haryanaand others (2003) 8 SCC 369 : [2003] 1 Suppl.SCR 947 ; State of Maharashtra and others v. JalgaonMunicipal Council and others (2003) 9 SCC731 : [2003] 1 SCR 1112 ; Sooraram Pratap Reddy andothers v. District Collector, Ranga Reddy District andothers (2008) 9 SCC 552 : [2008] 13 SCR 126 ;Shivashakti Sugars Limited v. Shree Renuka SugarLimited and others (2017) 7 SCC 729 ; KishoriMohanlal Bakshi v. Union of India & Ors. AIR 1962SC 1139 ; Randhir Singh v. Union of India and others(1982) 1 SCC 618 : [1982] 3 SCR 298 ; State ofHaryana and others v. Jasmer Singh and others (1996)11 SCC 77 : [1996] 8 Suppl. SCR 592 ; OrissaUniversity of Agriculture and Technology and anotherv. Manoj K Mohanty (2003) 5 SCC 188 : [2003] 3 SCR753 ; Government of W. B. v. Tarun K. Roy and others(2004) 1 SCC 347 : [2003] 5 Suppl. SCR 656 ; IndianDrugs & Pharmaceuticals Limited v. Workmen, IndianDrugs & Pharmaceuticals Limited (2007) 1 SCC 408 :[2006] 9 Suppl. SCR 73 ; Dhirendra Chamoli andAnother v. State of U.P (1986) 1 SCC 637 ; BhagwanDass and others v. State of Haryana and others (1987)4 SCC 634 : [1987] 3 SCR 714 ; Ashoka Kumar Thakurv. Union of India and others (2008) 6 SCC 1 : [2008]4 SCR 1 ; Society for Unaided Private Schools ofRajasthan v. Union of India and Another (2012) 6 SCC

1 : [2012] 2 SCR 715 ; Karnataka State Private CollegeStop-Gap Lecturers Association v. State of Karnatakaand Others (1992) 2 SCC 29 : [1992] 1 SCR 397 ;Baseeruddin M. Madari and others v. State ofKarnataka and Others 1995 Supp (4) SCC 111; Stateof Uttar Pradesh and another v. Anand Kumar Yadavand others (2018) 13 SCC 560 : [2017] 10 SCR 428 ;Unni Krishnan, J.P. and others v. State of AndhraPradesh and others (1993) 1 SCC 645 : [1993] 1 SCR594 ; M.C. Mehta v. State of T.N. and others (1996) 6SCC 756 : [1996] 9 Suppl. SCR 726 ; Secretary, Stateof Karnataka and others v. Umadevi (3) and others(2006) 4 SCC 1 : [2006] 3 SCR 953 ; State of Gujaratand 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 Banov. Union of India and Others (2017) 9 SCC 1 : [2017]7 SCR 797 ; E. P Royappa v. State of Tamil Nadu andAnother (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 SCR532 ; Khatri and Others (II) v. State of Bihar and Others(1981) 1 SCC 627 : [1981] 2 SCR 408 ; Brij MohanLal v. Union of India and Others (2012) 6 SCC 502 :[2012] 5 SCR 305 ; Arindam Chattopadhyay and Othersv. State of West Bengal and Others (2013) 4 SCC 152 ;Bihar State Government Secondary School TeachersAssociation vs. Bihar Education Service Association andothers (2012) 13 SCC 33 : [2012] 11 SCR 50; State ofUttar Pradesh and others v. Shiv Kumar Pathak andothers (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 andMahatama Gandhi Mission and another v. BhartiyaKamgar Sena and others (2017) 4 SCC 449 ; MohiniJain v. State of Karnataka and others (1992) 3 SCC666 : [1992] 3 SCR 658 ; State of Himachal Pradesh v.H.P. State Recognised & Aided Schools Managing

ACommittees and others (1995) 4 SCC 507 ; Workmenrepresented 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] 1SCR 158 ; Maneka Gandhi v. Union of India andBanother (1978) 1 SCC 248 : [1978] 2 SCR 621 ; Stateof Haryana and another v. Tilak Raj and others (2003)6 SCC 123 : [2003] 1 Suppl. SCR 522 ; All India BankEmployees’ Association v. National Industrial Tribunaland others (1962) 3 SCR 269 ; Navtej Singh JoharCand others v. Union of India through Secretary, Ministryof Law and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379;Acharya Maharajshri Narendra PrasadjiAnandprasadji Maharaj and others v. The State ofGujarat and others (1975) 1 SCC 11 : [1975] 2 SCR317 ; Assam Sanmilita Mahasangha and others v. UnionDof India and others (2015) 3 SCC 1 ; SubramanianSwamy v. Union of India, Ministry of Law and others(2016) 7 SCC 221 : [2016] 3 SCR 865 ; KishoriMohanlal 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 needsto be decided in the light of the law laid down by two decisions ofthe Constitution Bench rendered in *Joginder Singh and **ZabarSingh cases. Firstly because it is decision rendered by theFConstitution Bench; secondly because it is prior in point of time;and thirdly because the law laid down in later decisions has to beread 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) SCRG169 ; **Zabar Singh & Ors. v. State of Haryana andOrs. (1972 ) 2 SCC 275 : [1973] 1 SCR 608 – followed.

Bidi Supply Co. v. Union of India & Ors. AIR 1956 SC479 : [1956] SCR 267 ; N. Meera Rani v. Govt. of TamilNadu & Anr. AIR 1989 SC 2027 : [1989] 3 SCR H901 – relied on.

STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLECOMMITTEE, MUNGER

Rameshwar Shaw v. District Magistrate, Burdwan AIR1964 SC 334 : [1964] SCR 921 – referred to.

Case Law Reference

In the Judgment of Uday Umesh Lalit, J:

(2014) 11 SCC 405[1988] 1 Suppl. SCR 411[1988] 3 Suppl. SCR 479[1989] 2 SCR 422[1990] 1 SCR 544[1997] 4 Suppl. SCR 484[2002] 1 Suppl. SCR 118[2007] 9 SCR 130(2008) 10 SCC 1[2009] 12 SCR 394[2010] 13 SCR 429(2014) 13 SCC 7921995 Supp. (1) SCC 2791956 SCR 267[1974] 3 SCR 760[1975] 3 SCR 802[1980] 1 SCR 368[1980] 1 SCR 10361980 Supp SCC 155[1997] 6 Suppl. SCR 717[2003] 1 Suppl. SCR 947 [2003] 1 SCR 1112[2008] 13 SCR 126(2017) 7 SCC 729

referred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred to

Para 17

Para 24Para 31 (A)Para 31 (A)Para 31 (A)CPara 31 (A)Para 31 (A)Para 31 (A)Para 31 (B)DPara 31 (B)Para 31 (B)Para 31 (B)EPara 31 (B)Para 31 (C)Para 31 (C)Para 31 (C)FPara 31 (C)Para 31 (C)Para 31 (C)Para 31 (C)GPara 31 (C)Para 31 (C)Para 31 (C)Para 31 (C)

748SUPREME COURT REPORTS

STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLECOMMITTEE, MUNGER

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4862of 2019.

From the Judgment and Order dated 31.10.2017 of the HighCourt of Judicature at Patna in CWJC No. 21199 of 2013.

With

Civil Appeal Nos. 4872, 4867, 4866, 4864, 4865, 4869, 4863, 4868,4870, 4871 of 2019.

AK. K. Venugopal, AG, P. S. Narsimha, ASG, Rakesh Dwivedi,Shyam Divan, Dinesh Dwivedi, Lalit Kishore, Kapil Sibal, Vijay Hansaria,Ranjit Kumar, Salman Khurshid, Ms.Vibha D. Makhija, C. A.Sundram,V. Shekhar, V. N. Sinha, Sr. Advs. Gopal Singh, Manish Kumar, ShivamSingh, Arjun Khazanchi, Ms. Sansriti Pathak, Udian Sharma,Mrs. Madhavi Divan, Anmol Chandan, Ms. Suchindran Bhaskaran,BMs. Shraddha Deshmukh, G. S. Makker, Animesh Kumar, Murari Kumar,Neeraj Shekhar, Sumit Kumar, Ms. Anusha Nagarajan, Rohit KumarSingh, Ashutosh Thakur, Nitesh Ranjan, Ravi Kumar Singh, RanaPrashant, Kumar Visalaksh, Abhay Kumar, Vineet Kr. Singh, SaurabhMishra, Himanshu Pal Singh, Amit Kumar Srivastava, VikramadityaCSingh, Amit Wadhwa, C. K. Sharma, Sanjeev Kumar, Ms. Sofia Begum,Vivek Tewari, Zafar Khurshid, Vipin Kumar Saxena, Devendra Tewari,Prashant Bhushan, Prashant Shukla, Satyajeet Kumar, Govind Ji, ArvindKumar, Ms. Disha Vaish, Keshav Ranjan, Ms. Rohini Musa, AbhishekKr. Gupta, Ajay Kumar Singh, Satyendra Kr. Srivastav, Vinay Kumar,Ramesh Tiwari, Kumar Gaurav, Robin Khokhar, Shashank Shekhar,DPrithviraj Singh, B. N. Dubey, Ms. Swarupama Chaturvedi, R. K. Singh,Mrs. Neeraj Singh, Ms. Ritu Beniwal, Ravi Chandra Prakash, A. K.Singh, Sushil Kumar, A. K. Upadhaya, P. Dayal, R. P. Dayal, HarshitSanwal, Dr. S. K. Verma, Karunakar Mahalik, Upendra Narayan Mishra,Gaurav Yadav, Rakesh Kumar Singh, Ashok Anand, Bipin Bihari Singh,ESomanatha Padhan, Shyam Singh Chauhan, Sudhanshu Singh, KrishnaKumar Singh, Atul Jha, Santosh Kumar Pandey, Durga Dutt, VibhuShanker Mishra, Rohit Priyadarshi, Jitendra Nath Pathak, Sudhir KumarSingh, Ms. Shashi Singh, Dinesh Kr. Tiwary, Chandan Kumar,Ms. Rajmala Dohare, S. K. Tripathi, Ms. Shama Sharma, Ms. JayaKumari, Vikram Pathra Lekh, Ramesh Thakur, D. K. Mishra, R. P.FGoyal, Ragwendra Tiwary, Swami Nath, Ms. Jyoti Kumari, Amit Pawan,Anand Nandan, Sumit Mishra, T. Sudhakar, Gaurav Yadava, Mohit Yadav,Virendra Khurana, Durga Datt, Abhishek Yadav, Karunakar Mahalik,Animesh Upadhyay, Sanjay Kumar Dubey, Sunny Jaiswal, Rajiv RanjanDwivedi, Suman Kumar Divakar, Ms. Chhaya Kumari, Sushil Kumar,GRajnish Bhaskar, Upendra Narayan Mishra, Anilendra Pandey,Raghwendra Tiwari, Rahul Kumar, Sukesh Kumar Mishra, Pankaj KumarMishra, Y. Lokesh, Surya Narayana Patro, M. Ram Prasad, Rana RanjitSingh, Vivek Kumar Singh, Ravish Singh, Jay Kumar Singh, Advs. forthe appearing parties.

The Judgments of the Court were delivered by

UDAY UMESH LALIT, J. 1. Leave granted.

2. These appeals are directed against common judgment and orderdated 31.10.2017 passed by the High Court of Judicature at Patna inCivil Writ Jurisdiction Case No.21199 of 2013 and all connected matters.

3. In 1981, all non-Government Secondary Schools werenationalized and the management was taken over by State of Bihar.Consequently, all teaching and non-teaching staff were given salariesand emoluments at the Government scales. With the schemes like SarvaShiksha Abhiyan, introduction of Article 21A in the Constitution andcoming into force of the Right of Children to Free and CompulsoryEducation Act, 2009 (‘RTE Act’, for short), the State was required toinduct large number of teachers in order to meet the required obligations.These teachers employed at Panchayat, Nagar Panchayat and Municipallevels were not given same salaries and emoluments like the teacherswho were paid at the Government scales. The petitions seeking samesalaries and emoluments on the principle of “equal pay for equal work”filed by the latter category of teachers, were allowed by the High Court.The view taken by the High Court is presently under challenge at theinstance of the State.4. By the Bihar non-Government Secondary Schools (Taking overof Management and Control) Act, 1981 (‘1981 Act’, for short),management and control of non-Government Secondary Schools weretaken over by the State. In terms of Section 3, all non-GovernmentSecondary Schools other than Minority Secondary Schools based onreligion or language and Centrally sponsored, autonomous and proprietaryschools were taken over by the State Government w.e.f. 02.10.1980.Consequently, every Head Master, Teacher and other employees of suchschool became employees of the State Government, with Managementand Control of all the nationalized schools vesting in the Director ofEducation of State Government (In charge of Secondary education).Section 10 dealt with establishment of School Service Board which wasentrusted with the power of appointment of Teachers, Head Masters innationalized schools and the Board would make recommendations forappointment of teachers and for appointment or promotion of HeadMasters of nationalized secondary schools. The District SecondaryEducation Fund was constituted under Section 11 and the application of

Athe fund under Section 12 would inter alia be for payment of salariesand allowances of the Head Master, Teachers and other staff of thesecondary schools.

5. Bihar Nationalized Secondary Schools (Service Conditions)Rules, 1983 were framed by the State Government in exercise of powersBconferred under Sections 9 & 15 of the 1981 Act. Under these Rulesthe service conditions were prescribed for Head Master, Teachers ofsuperior category, teachers of inferior category and teachers of juniorcategory as well as in respect of non-teaching employees such as clerks,peons etc. These Rules prescribed minimum qualifications for each ofthose categories. The Rules also dealt with subjects such as procedureCfor appointment, permission, and disciplinary action. Rule 6 dealt withcadre of teachers and was to the following effect:

“6. Cadre of teachers:-

1. There shall be Dist. Cadre of junior category teachers, of whoseDcontrolling officer shall be Dist. Education Officer.

2. There shall be Commissionaire Cadre of the teachers of inferiorand superior category of whose controlling officer shall be RegionalDirector.

3. There shall be State Cadre of Headmaster whose controllingEofficer shall be Director.”

6. By the Constitution (73[rd] amendment) Act, 1992 Part IX(containing Articles 243, 243A to 243-O) was inserted in the Constitution.Article 243B mandates that in every State there shall be constitutedPanchayats at the village, intermediate and district levels in accordanceFwith Part IX of the Constitution Article 243G is to the following effect:-

“243G Powers, authority and responsibilities of Panchayats.– Subject to the provisions of this Constitution, the Legislature ofa State may, by law, endow the Panchayats with such powersand authority as may be necessary to enable them to function asGinstitutions of self-government and such law may contain provisionsfor the devolution of powers and responsibilities upon Panchayatsat the appropriate level, subject to such conditions as may bespecified therein, with respect to –

(a) the preparation of plans for economic development and socialHjustice;

(b) The implementation of schemes for economic developmentand social justice as may be entrusted to them including those inrelation to the matters listed in the Eleventh Schedule.”

One of the matters listed in the Eleventh Schedule under SerialNo.17 is “Education, including primary and secondary schools”.

7. By the Constitution (74[th] Amendment Act, 1992) Part IXA(containing Articles 243P to 243Z, 243ZA to 243ZG) was inserted in theConstitution. In terms of Article 243Q there shall be constituted in everyState, Nagar panchayat for transitional area, municipal council fora small urban area and municipal corporation for larger urban area inaccordance with the provisions of said Part IXA of the Constitution.Article 243W dealing with powers, authority and responsibilities ofMunicipalities etc. is as under:“243W. Powers, authority and responsibilities ofMunicipalities, etc. – Subject to the provisions of thisConstitution, the Legislature of State may, by law, endow –

“(a) The Municipalities with such powers and authority as maybe necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolutionof powers and responsibilities upon Municipalities, subject to suchconditions as may be specified therein, with respect to –

(i) the preparation of plans for economic development and socialjustice;

(ii) the performance of functions and the implementation ofschemes as may be entrusted to them including those in relationto the matters listed in the Twelfth Schedule;

(b) the Committees with such powers and authority as may benecessary to enable them to carry out the responsibility conferredupon them including those in relation to the matters listed in theTwelfth Schedule.”

One of the matters mentioned in the Twelfth Schedule at SerialNo.13 states, “Promotion of cultural, educational and aesthetic aspects”.

8. By the Constitution (86[th] Amendment Act, 2002) which cameinto effect on 01.04.2010, Article 21A dealing with right to educationwas inserted in the Constitution. Said Article 21A reads as under:-

“21A. Right to education. – The State shall provide free andcompulsory education to all children of the age of six to fourteenyears in such manner as the State may, by law, determine.”

9. By Bihar Act 25 of 2006, 1981 Act was amended. Section 2 ofthe Amending Act was as under:

“Amendment of Section 10 of the Act, 1981 (Bihar Act 33, 1982)– The Words “The recommendation for the appointment to Postsof teachers in nationalized Schools shall be sent to the Director,Secondary Education Department by the Bihar Staff SelectionCommission used in Section 10 as substituted by Bihar Act 14,C2004 are hereby deleted.”

The role of the Director in matters concerning appointments tothe posts of teachers in nationalised schools was thus done away with.

10. In May 2006, two draft Notes for approval of the Cabinetwere prepared. The Notes dealt with issues like requirements to increaseDthe number of teachers to reach the national level of teacher to students’ratio and to meet the goals set by the provisions of Article 21A of theConstitution. Some of the relevant portions of the Notes were:-

“As per the provisions of Article 21A of the Constitution of India,imparting of free Education to the childrens’ of age group of 6-14Ehas become their fundamental rights. This is the responsibility ofthe State to provide quality education keeping in mind the equalityand social justice. At present in Government schools ratio ofteachers and student is1:62. Whereas as per the nationalEducational policy and in light of standard fixed at national level,for the purposes of imparting quality education, this ratio shouldFbe 1:40. There are 64:391 posts vacant for the trained teachersand around 24 Lakhs childrens are not even registered in theschools. Due to lack of teachers, school and classes childrens inhuge numbers are compelled to leave the school even prior tocompleting their education up to 8 years. This year there is schemeGfor consolidated development of 15000 new primary schools andaround 24,000 existing schools. At present education is beingimparted to the childrens at “Shiksha Kendras” with the help ofinstructors. It is thought in light of equality and social justice thatthey be also provide education in fully developed schools with thehelp of teachers.”

“9. In new rules basic changes are being made in salary of thetrained teachers and in their appointment procedure. They willbe provided fixed salary of Rs.5000/- per month and on the basisof their evaluation, in situation of them being successful, in eachthree years, an increment of Rs.500/- per month shall be given.Appointment shall be decentralized. At the Block levels, it shallbe provided under the panchayati Raj arrangements on the basisof merit list.

In Gramin area they shall be called as “Panchayat teachers” andin Urban area they will be called “Nagar teachers”.

It is expected that in this new scheme of things and on fixedsalary/stipend generally locals will be appointed on the post ofteachers and amount which shall be saved consequent to expensesof providing of present full salary, could be available for thepurposes of extension of primary education and for the purposesof enhancement of its quality.

10. New rule shall not have any effect in salary of the teachersand in terms and condition of their appointments made earlier.But their vacant posts shall be omitted and same number of postsshall be created under the new arrangements/Rules andappointment on it shall be made under the new rules. Samearrangement/procedure shall follow in the vacancies falling infuture.

Under these provisions, Panchayat Raj institutions are beingprovided with the power of appointment of new teachers, paymentof salary and other terms and conditions of service as per theproposed new Rules of appointment. Movable/ImmovableProperty of the schools, training of teachers, construction of buildingof school, construction of syllabus of study/study material,construction of book, evaluation etc all the works shall be underthe state Government like in past.”

“5. Difficulties in previous appointment procedure:- In thecentralized examination test as adopted earlier has followingdifficulties in selection and appointment of teachers.

i.Previous experience shows that in organizing andevaluating of such examinations so many hurdles are facedand in entire appointment process, it takes lot of time.

ii.If selection is done in centralized way, there is possibilityof participation of candidates from other states too and apractical difficulty would come in, verification of eligibilitycertificates etc.

iii.After centralized selection process, practical difficultywould be faced in transfer and posting etc and candidateswould also suffer.

6. Proposed process of employment:- While considering the abovesaid facts/aspects, proposal is that procedure of appointment ofSecondary and higher Secondary teachers is decentralized and inlight of 73[rd] and 74[th] amendment of the Constitution of India, itsresponsibility be given to the Panchayati Raj Sansthan’s/bodies.Movable and immovable property of school, Training of teachers,construction of school building, syllabus/study materials,construction of study materials, evaluation etc, shall be under thecontrol of state Government like in past.”

“8. Under the above said process, if payment is made at the rateof Rs.6000/- per teacher (Six thousand only) financial implicationwould be Rs.89,82,72,000/- (Eighty nine crores eighty two lakhsseventy two thousand only) which would be required to be incurred.If appointment is made on all these posts under the presentprocedure, total amount of Rs.160,83,56,016 (rupees one hundredsixty crores eighty three lakhs fifty six thousand sixteen rupeesonly) is estimated required to be spent. In this manner ifappointment of teachers of secondary schools are done under thenew proposed Rules, total amount of Rs.71,00,84,016 (Seventyone crores, eighty four thousand sixteen rupees only) shall besaved. From this saved amount, on fixed salary total 10,000 postsof teachers could be created. From these created posts, for thepurposes of extension of secondary education in the state, followingschemes shall be floated by the Department of Human ResourcesDevelopment.”11. Thereafter, Bihar Panchayat Elementary Teachers(Employment and Service Conditions) Rules, 2006 came into effect on01.07.2006. The opening recitals of said Rules stated:

“In the exercise of the powers conferred by provision of Article243-G (11[th] schedule section no.17) of the Constitution of Indiaand Article-47 and 48 read with Article 146 of Bihar PanchayatRaj Act-2006, the State Government is pleased to make thefollowing rules for employment of teachers in the Elementaryschools of rural areas of the state.

Rules:

The Elementary education for the children between 6-14 years ofage, has become their fundamental Right under the Article 21(A)of the Constitution of India. For this it has become necessary toadopt the comprehensive programmes for improvement andexpansion of Elementary education (system). It is required toopen thousands of new elementary schools and employment ofteachers in large number. It has also become necessary tohandover the responsibility of elementary Education to PanchayatRaj Institutions considering their important roles in ElementaryEducation in the light of 73[rd] and 74[th] amendments of theconstitution. Consequently, to achieve the above goal, this rule isbeing made for the employment of teachers in elementary schools.”

Rules 3 and 4 of said Rules were to the following effect:

“3. Grade of Panchayat Elementary Teacher- There will be twogrades of Panchayat Elementary Teachers:-

(A) Block Teacher (Those teachers including physical EducationTeachers employed at block level.)

(B) “Panchayat Teachers” (Teachers employed at Panchayatlevel).

4. Employment of Panchayat Elementary Teachers-

(1) Block Teachers will be employed in Middle schools byPanchayat samiti and Panchayat teachers will be employed inprimary schools by Gram Panchayat.

(2) Category wise panel at both above mentioned level will beprepared separately for trained and untrained candidates. At first

Atrained teachers will be employed. Thereafter if posts remainvacant, untrained teachers may be employed. Thereafter if postsremain vacant, untrained teachers may be employed andarrangement will be made for imparting two years teachers trainingto them.

B(3) In reserved category if higher secondary/intermediate passedcandidates would not be available, secondary examination(Matriculation) passed candidates may be employed. But it willbe necessary for them to acquire prescribed qualification withinmaximum six years.”

CRule 9 dealt with “process of employment” and stated that thevacant posts would be advertised within the block/panchayat, whereafterapplication forms from interested candidates would be received by BlockEducation Extension Officer for Block Teachers and by the Secretaryof Gram Panchayats from Panchayat Teachers. Sub-Rule 7 of Rule 9dealt with constitution and approval of Committee for preparation ofDpanel as under:-

“7. Constitution and Approval of Committee for preparation ofpanel:

Panel will be prepared on the basis of application forms obtainedEby the following Committee:

(A) For Block teacher and physical Teacher:-

(i)Pramukh of Panchayat samiti-Chairman

(ii)Executive Officer panchayat Samiti - Member.

(iii)One member elected by education committee of PanchayatSamiti. (if parmukhe is male member, the elected memberExecutive shall be female)

(iv)Block Education Extension Officer – Member Secretary

(B) For Panchayat teacher:G

(i)Mukhiya of Gram Panchayat – Chairman

(ii)One member elected by Education Committee of GramPanchayat case Mukhiya is male, the elected memberwill be female -Member.

STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE759COMMITTEE, MUNGER [UDAY UMESH LALIT, J.](iii)The member of Panchayat samiti whose area covers mostAof the area Panchayat – Member

(iv)One teacher from the secondary school either from to thepanchayat nearer to the panchayat nominated by theD.E.O. – Member.

(v)Secretary Gram Panchayat – Member Secretary.

But the term of the elected members of both the abovecommittees will of one year.

Note: - In case of (non-existence) non-constituent of theEducation Committee of panchayat samiti and Grampanchayat, one member of panchayat samiti/gram Panchyatnominated by the Block Education Extension officer, willbe member of the Committee.

(vi)After preparation, the panel will be published or makeavailable to the public one-week time will be given for theirobjection/grievances. Resolving the grievances obtained,panel will be finalised.

(vii)Panel prepared for employment of Block teachers andpanchayat teacher will be approved by panchayat samitiand Gram panchayat respectively.

(viii) Selected members will be employed in their willing schoolsthrough counselling by the above committees in descendingorder of the preference mentioned in Anusuchi-II from thepanel prepared on the basis of merit.

(ix)Employment letter will be given to the selected candidate(Anusuchi-III)

(x)Their joining will be accepted on the basis of their consentletter.”

In terms of Rule 12, trained Block Teachers and PanchayatTeachers as well as untrained Block Teachers and Panchayat Teacherswere to be employed on fixed pay and the trained Block Teachers andPanchayat Teachers would be entitled to an increase in their fixed payby Rs.500/- every three years, while untrained block teachers andpanchayat teachers would be entitled to increment of Rs.300/- every

Athree years. Under Rule 13 the posts were non-transferable. UnderRule 20 dealing with Repeal and Savings it was stated that PanchayatShiksha Mitras employed under previous circulars, orders, instructionswere deemed to be employed as panchayat teachers under these Rules.

12. On 11.07.2006, two sets of Rules were framed by the State.BFirst, dealing with subject of appointment of teachers in GovernmentNationalized Secondary Schools in the Urban Areas of the States whilethe second set dealt with the subject of appointment of teachers inGovernment Nationalized Secondary Schools in Rural areas of the State.The opening recitals in respect of both the sets of Rules were identicaland were to the following effect:-C

“The State Government has taken policy decision for theexpansion and strengthening of the Secondary and HigherSecondary Schools of the state. At present, it is necessary to fillup large number of vacancies of the teachers. Apart from this,more schools and teachers are also needed. It has been decidedDto organize + 2 level of higher secondary schools under 10 + 2 +3 pattern in accordance with the National Education Policy, 1986/1992. As per the 73[rd] and 74[th] Amendment of the Constitution,the Government has decided, to decentralize the appointment ofthe teachers of the Secondary and Higher Secondary SchoolsEand to entrust the responsibility of the appointment of teachers ofSecondary Schools to the Panchayati Raj Institutions. These rulesare being made to achieve this aim under special planning for theappointment of teachers in the Secondary Schools.”A) The First set of Rules were called the Bihar Municipal BodyFSecondary and Higher Secondary Teachers (Employment and ServiceConditions) Rules 2006. Rule 4 dealt with the subject of eligibility forappointment to the posts of Municipal Secondary Teachers under Part Awhile Part dealt with similar issues as regards Municipal HigherSecondary Teachers. The procedure for employment was dealt with inRule 6, according to which the information of subject-wise vacant postsGof teachers in Government Nationalized Secondary Schools situated inMunicipal areas would be advertised in that area. Sub-Rule (6) of Rule6 dealt with Constitution of Committees for preparation of panels inrespect of Municipal Panchayat/Municipal board and for MunicipalCorporations as under:

“Constitution of Committee for the preparation of panel and itsapproval-

On the basis of received applications, the following committeeshall prepare the panel:

(a) Committee for Municipal Panchayat/Municipal Board

1.Chairman of Municipal Panchayat President/Municipal Board 2.One selected Member of Education MemberCommittee of Municipal panchayat/ Municipal board (In case of male president, the selected member shall be female) 3. Executive Officer of Municipal Member Panchayat/ Municipal Board Concerned Sub-divisional Member 4.Officer Secretary

If Scheduled Caste/Scheduled Tribe are not there in the aforesaidcommittee, then the District Welfare Officer shall be the additionalmember of the Committee.

But the tenure of the member selected by the Education Committeeof Municipal Panchayat/Municipal Board shall be of 1 year.

Note: - In case of non-constitution of the education committee ofMunicipal Panchayat/Municipal Board, one officer of the districtlevel shall be nominated by the executive officer of the MunicipalPanchayat/Municipal Board.

(b) Committee for the Municipal Corporation

F1.Mayor of Municipal CorporationPresident 2.One selected member of Education MemberCommittee of Municipal Corporation (In case of male president, the selected member shall be female) 3. Executive Officer of Municipal Member GCorporation 4Concerned District Education OfficerMember Secretary

AIf Scheduled Caste/Scheduled Tribe are not there in the aforesaidcommittee, then the District Welfare Officer shall be the additionalmember of the Committee.

But the tenure of the member selected by the Education Committeeof Municipal Corporation shall be of 1 year.

BNote: In case of non-constitution of the education committee ofMunicipal Corporation an officer of the district level shall benominated by the Chief Officer of the Municipal Corporation.”

In terms of Rule 8, Municipal Secondary Teachers, trained anduntrained, would be entitled to fixed salary every month and also increaseCof Rs.600 per month and Rs.500 per month respectively on completionof 3 years. Similarly, salary of Municipal Higher Secondary Teachers,trained and untrained, was also fixed salary with increase of Rs.700per month and Rs.600 per month for trained and untrained categories oncompetition of 3 years. Under Rule 10, the posts of Municipal SecondaryDand Higher Secondary Teachers were normally not transferable, butafter completion of three years, the teachers could avail the facility ofmaximum two transfers within the jurisdiction of the Municipal Body.Rule 16(2) was to the following effect:-

These Rules shall not affect the salary and service conditions ofEthe teachers of Government, Nationalised Secondary and HigherSecondary Schools appointed under the provisions of the previousRules.”

B) The Second set of Rules were called the Bihar District BoardSecondary and Higher Secondary Teachers (Employment and ServiceConditions) Rules, 2006. Rule 4 dealt with the subject of eligibility forFappointment to the posts of District Board Secondary Teachers underPart-A while Part-B dealt with similar issues as regards District BoardHigher Secondary Teachers. The procedure for employment was dealtwith in Rule 6, according to which the information of subject-wise vacantposts in Government nationalized secondary schools situated in theGDistrict Board areas would be advertised in the District. Sub-Rule (6)of said Rule 6 dealt with constitution of Committees for the preparationof panels in respect of District Boards as under:-

“vi. Constitution of Committee for the preparation of panel andits approval-

On the basis of received applications, the following Committeeshall prepare the panel:

aChairman of District BoardPresidentb One selected Member of Education Member Committee of District Board (In case of male President, the selected member shall be female)CDeputy Development CommissionerMemberd District Education Officer Member Secretary

If Scheduled Caste/ Scheduled Tribes are not there in the aforesaidcommittee, then the District Welfare Officer shall be the additionalmember of the committee.

But the tenure of the member selected by the Education Committeeof District Board shall be of 1 year.

Note:- In case of non-constitution of the education committee ofDistrict Board, one officer of the district level shall be nominatedby the Deputy Development Commissioner.”

In terms of Rule 8, District Secondary Teachers, trained anduntrained, would be entitled to fixed salary every month and also anincrease of Rs.600/- per month and Rs.500/- per month respectively oncompletion of three years. Similarly, the District Board Higher SecondaryTeachers, trained and untrained, would also be entitled to fixed salarywith increase of Rs.700/- per month and Rs.600/- per month respectivelyfor trained and untrained categories on completion of three years. UnderRule 10, the posts of District Board Secondary and District Board HigherSecondary Teachers were normally non-transferable, but on completionof three years, the teachers could avail the facility of maximum twotransfers within the jurisdiction of the District Board. Rule 16(2) was asunder:-

“These Rules shall not affect the salary and service conditions ofthe teachers of Government, Nationalised Secondary and HigherSecondary Schools appointed under the provisions of the previousRules.”

13. Thus, three sets of Rules came into effect in July, 2006. BiharPanchayat Elementary Teachers (Employment and Service Conditions)

ARules, 2006 dealing with elementary teachers come into force on01.07.2006; Bihar Municipal Body Secondary and Higher EducationTeachers (Employment and Service Conditions) Rules, 2006 dealing withteachers employed in secondary and higher secondary teachers in urbanareas came into effect on 11.7.2006. Bihar District Board SecondaryHigher Secondary Teachers (Employment and Service Conditions) Rules,B2006 dealing with secondary and higher secondary teachers in ruralareas also came into effect on 11.7.2006. These three sets of Rules, forfacility, are hereinafter referred to as ‘2006 Rules’ and the teachersappointed in terms of said Rules, again for facility, are referred to as‘Niyojit Teachers’, which expression appears in all official circulars andCresolutions.After the framing of Rules of 2006, the appointments to the postsof teachers in urban as well as rural areas in respect of nationalizedschools in the State were made on the basis of said Rules of 2006. Theservice conditions and emoluments payable to those teachers wereDgoverned under the provisions of the respective sets of 2006 Rules asaforesaid. The emoluments payable to those teachers were, however,lower than the emoluments paid to all the teachers who were appointedbefore said Rules of 2006 had come into force. Thus, there were twocategories of teachers, the first being those teachers who uponnationalization continued or were appointed in all Government schoolsEbefore 2006 and the second category was all the teachers appointedunder 2006 Rules. The First category i.e. regular Government Teacherswere entitled to pay-scale and certain emoluments, whereas the Secondcategory of teachers were appointed by Local Authorities on fixedsalary.F

It was, however, the policy decision of the State that post 2006there would not be any fresh regular appointments in the First categoryand all regular appointments post 2006 would be only in terms of 2006Rules i.e. in the Second category. There is, however, an exception underwhich certain teachers were appointed under the First category evenGafter 2006 which will be dealt with hereafter. Barring such exception,the policy decision had been that no fresh appointments be made in theFirst category and that the First category would be treated as dying orvanishing cadre.

14. The RTE Act enacted by the Parliament to provide for freeand compulsory education to all children in the age bracket of 6 to 14years, came into force on 01.04.2010.

A. Sections 2 (a), (f) and (n) which define terms ‘appropriateGovernment’, ‘elementary education’ and ‘school’ are as under:-

“2. Definitions.- In this Act, unless the context otherwiserequires, -

(a) “appropriate Government” means –

(i)In relation to school established, owned or controlled bythe Central Government, or the administrator of the UnionCterritory, having no legislature, the Central Government;

(ii) In relation to school, other than the school referred to insub-clause (i), established within the territory of –

(A) State, the State Government;

(B) Union Territory having legislature, the Government of that Union territory;

(f) “elementary education” means the education from firstclass to eighth class;

(n) “school” means any recognised school impartingelementary education and includes –

(i) school established, owned or controlled by theappropriate Government or local authority;

(ii) an aided school receiving aid or grants to meet whole orpart of its expenses from the appropriate Government orthe local authority;

(iii) school belonging to specified category; and

(iv) an unaided school not receiving any kind of aid or grantsto meet its expenses from the appropriate Government orthe local authority;”

B. Chapter III of the Act deals with “Duties of AppropriateGovernment, Local Authority and Parents” and Sections 6 and 7appearing in this Chapter are as under:-

“6. Duty of appropriate Government and local authority toestablish school. – For carrying out the provisions of this Act,the appropriate Government and the local authority shall establish,within such area or limits of neighbourhood, as may be prescribed,a school, where it is not so established, within period of threeyears from the commencement of this Act.

7. Sharing of financial and other responsibilities. – (1) TheCentral Government and the State Governments shall haveconcurrent responsibility for providing funds for carrying out theprovisions of this Act.

(2) The Central Government shall prepare the estimates of capitaland recurring expenditure for the implementation of the provisionsof the Act.

(3) The Central Government shall provide to the StateGovernments, as grants-in-aid of revenues, such percentage ofexpenditure referred to in sub-section (2) as it may determine,from time to time, in consultation with the State Governments.

(4) The Central Government may make request to the Presidentto make reference to the Finance Commission under sub-clause(d) of clause (3) of article 280 to examine the need for additionalresources to be provided to any State Government so that thesaid State Government may provide its share of funds for carryingout the provisions of the Act.

(5) Notwithstanding anything contained in sub-section (4), the StateGovernment shall, taking into consideration the sums provided bythe Central Government to State Government under sub-section(3), and its other resources, be responsible to provide funds forimplementation of the provisions of the Act.

(6) The Central Government shall-

(a) develop framework of national curriculum with the helpof academic authority specified under Section 29;

(b) develop and enforce standards for training of teachers;

(c) provide technical support and resources to the StateGovernment for promoting innovations, researches, planningand capacity building.”

C. Chapter IV deals with “Responsibilities of Schools andTeachers” and Sections 23 and 25 deal with issues such as qualificationsand conditions of service of teachers as well as Pupil-Teacher Ratio asunder:

“23. Qualifications for appointment and terms and conditionsof service of teachers. –

(1) Any person possessing such minimum qualifications, as laiddown by an academic authority, authorised by the CentralGovernment, by notification, shall be eligible for appointment as ateacher.

(2) Where State does not have adequate institutions offeringcourses or training in teacher education, or teachers possessingminimum qualifications as laid down under sub-section (1) are notavailable in sufficient numbers, the Central Government may, if itdeems necessary, by notification, relax the minimum qualificationsrequired for appointment as teacher, for such period, notexceeding five years, as may be specified in that notification:

Provided that teacher who, at the commencement of this Act,does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within aperiod of five years.

Provided further that every teacher appointed or in position as onthe 31[st] March, 2015, who does not possess minimum qualificationsas laid down under sub-section (1), shall acquire such minimumqualifications within period of four years from the date ofcommencement of the Right of Children to Free and CompulsoryEducation (Amendment) Act, 2017.

(3) The salary and allowances payable to, and the terms andconditions of service of, teacher shall be such as may beprescribed.

A25. Pupil-Teacher Ratio. – (1) Within three years from the dateof commencement of this Act, the appropriate Government andthe local authority shall ensure that the Pupil-Teacher Ratio, asspecified in the Schedule, is maintained in each school.

(2) For the purpose of maintaining the Pupil-Teacher Ratio underBsub-section (1), no teacher posted in school shall be made toserve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.”

D. Section 35 empowers the Central Government to issuedirections while Section 38 empowers appropriate Government to makeCrules. In exercise of powers conferred by Section 38 of the RTE Act,the Central Government made “The Right of Children to Free andCompulsory Education Rules, 2010” (hereinafter referred to as “2010Rules”), which came into effect on 8.4.2010. Part VI of 2010 Rulesdeals with topic ‘Teachers’ and Rule 20 appearing in said Part VI is asunder:-D

“20. Salary and allowances and conditions of service ofteachers. – (1) The Central Government or the appropriateGovernment or the local authority, as the case may be, shall notifyterms and conditions of service and salary and allowances ofteachers of schools owned and managed by them in order to createEa professional and permanent cadre of teachers.

(2) In particular and without prejudice to sub-rule (1), the termsand conditions of service shall take into account the following,namely:-

(a) accountability of teachers to the School ManagementFCommittee;

(b) provisions enabling long-term stake of teachers in the teachingprofession.

(3) The scales of pay and allowances, medical facilities, pension,Ggratuity, provident fund, and other prescribed benefits of teachersshall be at par for similar qualification, work and experience.”

15. In exercise of powers conferred by Section 38 of the RTEAct, State of Bihar made, The Bihar State Free and Compulsory

Education of Children Rules, 2011. The concept of neighbourhood wasdealt with in Rule 2(1)(k) and Rule 4 speaking about establishment of aprimary school within 1 km of all habitations was as under:-

“4. (1) the areas or limits of neighbourhood within which schoolhas to be established by the State Government shall be as under –

(a) primary school has to be established within limit of1(one) km. of all habitations, where number of children betweenthe ages of 6-14 years are at least 40 (forty):

(b) An elementary school has to be established within alimit of 3 (three) km. of any habitation:

(2) wherever required, the State Government shall upgrade aprimary school to elementary school.

(3) In places with difficult terrain, risk of floods, landslides, erosion,lack of roads and in general, danger for young children in theapproach from their homes to the school, the State Governmentor the local authority may consider to locate the school in such amanner as to avoid such dangers, by relaxing the limits specifiedunder sub rule (1) of rule 4.

(4) For children from very small habitations as identified by theState Government/Local Authority, where no school exists withinthe area or limits of neighbourhood specified under Sub-Rule (1)above, the State Government/Local Authority shall make adequatearrangements, such as free transportation, residential facilities andother facilities, for providing elementary education.

(5) In areas with high population density, the State Government/local authority may consider establishment of more than oneneighbourhood school, having regard to the number of Children inthe age group of 6-14 years in such areas.

(6) The Local Authority shall identify the neighbourhood school(s)where children can easily be admitted and made such informationpublic for each habitation within its jurisdiction.

(7) In respect of children with disabilities, which prevent themfrom accessing the school the State Government/Local Authoritywill endeavour to make appropriate and safe transportation

Aarrangements for them to attend school and complete elementaryeducation.

(8) The State Government/Local Authority shall ensure that accessof children to the School is not hindered by social and culturalfactors.”

BPart 6 of the Rules dealt with “minimum qualifications of teachersfor the purpose of sub section (1) of Section 23 of the Act and Rule 17was as under:-

“Salary, allowances and conditions of service of teachersfor the purpose of sub-Section (3) of Section 23 of the Act

17. (1) The State Government shall notify salary, allowances andconditions of service for creation of professional and permanentcadre of teachers.

(2) Following points shall be taken into consideration withoutDprejudice for sub-rule (1) and especially for the determination ofconditions of service:-

(a) The teachers should be accountable to the schooleducation committee constituted under Section 21 of the Act.

(b) The provision of creation of favourable conditions forEteachers to stay in teaching profession for long period.”

16. Soon thereafter Bihar Panchayat Elementary Teachers(Employment and Services Conditions) Rules, 2012 came into force on03.04.2012. The terms Primary School, Middle School and ElementarySchool by defining Rules 2 (i)(ii)(iii) respectively as under:-

“(i) “Primary school” means the government or governmenttaken-over schools where at present education is provided uptoclass-V level.

(ii) “Middle school” means government/government takenover schools where at present education is provided upto classGVIII level.

(iii)”Elementary school” means government/ governmenttaken over primary and Middle schools.”

Rule 5 prescribed minimum qualifications for employment inrespect of teachers for classes I to V and classes VI to VIII. Rule 15dealt with consolidated pay of the teachers as under:-

“15. Service Conditions of Niyojit teachers.-(a)Consolidated Pay.-(i) the Panchayat elementary teachers willget the consolidated pay as follows:-

Trained teachers (basic grade)- 7000/- per monthUntrained teachers (basic grade)- 6000/- per monthTrained teachers (Graduate grade)- 8000/-per monthUntrained teachers (Graduate grade)- 7500/- per month

Trained teachers (H.M. Middle School) - 14000/- per month

(ii) The instructors will get 4000/- consolidated pay per month.

(iii) If in future, the state government takes decision to revisetheir consolidated pay, they will get the pay accordingly.

(iv) No other allowances like dearness allowance, house rentallowance, medical allowances, transport allowance etc. will begiven to the Panchayat elementary teachers and instructorsemployed under these rules.”

Sub rule (b) then dealt with pay increase and stated that theevaluation (“efficiency test”) of Niyojit Teachers as directed by theGovernment according to Employment Rules, 2006 would be undertakenand based on evaluation, the trained teachers securing 45% in generalcategory and 40% in reserved category would get an increase of Rs.500in their consolidated pay while untrained teachers wold get increase ofRs.300/- in their fixed pay after three years.

Sub rule (f) dealt with “Promotion” and clause 3 thereafter statedthat the promotion to the post of headmaster in fixed pay of middleschools would be given from the seniority list of graduate trained teachersand from the seniority list of teachers having at least 5 years of minimumsatisfactory service in graduate grade at block level.

Similar provisions for teachers working in urban areas were madeby the Bihar Nagar Elementary Teachers (Employment and ServiceConditions) Rules, 2012.

A17. Though after the enforcement of 2006 Rules, the regular cadreof Government Teachers was to be taken as dying or vanishing cadreand fresh appointments were to be made only in terms of 2006 Rules onfixed pay and power appointment was vested with Panchayati RajInstitutions, there was an exception and some Assistant Teachers inregular pay scale as Government Teachers in secondary schools cameBto be appointed in the year 2013 in following circumstances.

Sometime in December 2003, an advertisement was issued bythe State to fill up the posts of Assistant teachers. However, certainirregularities were found in the preparation of panels during selectionprocess. Therefore, orders were issued for cancellation of panels. ACchallenge was raised by some candidates and the High Court directedthe State to recalculate the vacancies and to go ahead with the processof selection. Special Leave Petition No.22882 of 2004 filed in this Courtby the State was withdrawn. Thereafter, the State attempted to fill thevacancies in terms of 2006 Rules which led to the filing of ContemptDPetition No.297 of 2007 in this Court. By order dated 9.12.2009, thisCourt directed the State Government to fill up 34540 posts of Assistantteachers as per advertisement published in December 2003 as one timeappointment.

The Bihar Special Primary Teachers Appointment Rules, 2010Ewere therefore framed. These Rules were to deal with exceptionalsituation which was styled as “One Time Appointment.” Accordingly,34540 teachers were appointed in 2013 as Government Teachers onregular pay scales. The developments including the difficulty expressedby the State in accommodating teachers because of change in policywere dealt with by this Court in Nand Kishore Ojha v. Anjani KumarFSingh[1]as under:-

“1. Contempt Petition (C) No. 297 of 2007, filed in SLP (C) No.22882 of 2004, arose out of an alleged breach of undertaking saidto have been given on 18-1-2006 by the State of Bihar and theorder passed on the basis thereof on 23-1-2006 by this Court inGState of Bihar v. Nand Kishor Ojha (2014 11 SCC 404) As wehave indicated in our order dated 9-1-2009, number of writpetitions had been filed against the State of Bihar, raising issuesrelating to recruitment of teachers in primary schools. At one stage,

it was brought to our notice that on account of changes in thepolicy, trained teachers who were in place at the time when theundertakings were given, could not be accommodated.Accordingly, we had passed orders directing that the trainedteachers who at one time were less than the number of vacantposts, should be given appointment in the vacancies that wereavailable. Subsequently, however, there was some discrepancyas to the number of vacancies available as against the number ofteachers to be accommodated. Accordingly, we adopted figurefrom an advertisement which had been published for recruitmentof primary school teachers and took the number of availablevacancies to be 34,540.2. We had directed that the said vacancies be filled up with thesaid number of trained teachers as one-time measure to giveeffect to the undertakings which had been given on 18-1-2006and 23-1-2006. Accordingly, without issuing rule of contempt,we had directed that the said vacancies be filled up from amongstthe trained teachers who are available in order of seniority.Subsequently, however, it came to light that the number ofcandidates available were much more than the number ofvacancies and there were also serious doubts raised about theeligibility of some of the candidates and some of the institutionsfrom which they alleged to have received their training.”

As result, 34,540 primary school teachers came to be appointedin the year 2012-13. These teachers though appointed after 2006 werenot appointed in terms of 2006 Rules but Special Recruitment Rulescalled 2013 Rules were formulated.

18. An association of teachers called Parivartankari PrarambhikShikshak Sangh approached the High Court by filing Civil Writ JurisdictionCase No.7089 of 2013 contending that the Panchayat elementaryteachers were entitled, under the principle of “equal pay for equal work”,to same pay-scales which were being given to the teachers appointedunder the State Government. The matter was contested and the SingleJudge of the High Court dismissed said Writ Petition by his judgmentand order dated 5.4.2013. It was observed:-

A“Here is case where the State as matter of policy came upwith scheme of mass employment at grass root level at thePanchayats to ensure that sufficient teachers are available at thelocal level so that children who have no ready access to educationalso have such opportunity. In the aforesaid background, as faras the State exchequer is concerned, the policy/scheme was inBaccordance with the burden it could bear for such recruitmentunder which the members of the petitioner’s society have beenappointed. That being the case, it is entirely at the discretion ofthe State Government to decide the service conditions includingpay-scale for persons appointed under the aforesaid Rules. TheCCourt would not substitute is own views or force the State tomake payment from the public exchequer as it is the State whichis also accountable for such expenditure and has to justify suchpayment.

If the State Government has framed policy/scheme for evolvingDa way of balancing between the requirement of teachers and thefinancial liability together with devolution of power to thePanchayats, the Court would not interfere and disturb theequilibrium.”

19. Around this time, several other writ petitions were filed, beingEaggrieved by the differential treatment, where the Niyojit Teachersappointed under Rules of 2006 were not been given the same pay-scalesand were differentially treated. These petitions highlighted denial ofconcept of “equal pay for equal work” and challenged the validity ofrelevant provisions of 2006 Rules. The matters were taken up by theDivision Bench of the High Court, the lead matter being CWJC 21199 ofF2013 filed by the Bihar Secondary Teachers Struggle Committee, Munger.

20. In response, the stand of the State was that there weredifferences between two categories of teachers. In supplementarycounter affidavit filed by the Director, Secondary Education, thedifference was projected as under:-G

“13. That the comparative difference between the aforesaid twocategories of teachers is more apparent from the tabular chartprepared hereinafter:-

21. During the pendency of these matters, Resolution was passedGby the State Government on 11.08.2015, under which the Niyojit Teacherswere granted pay-scale instead of fixed salary that was contemplatedunder 2006 Rules. The Resolution also indicated number of primaryteachers, secondary teachers and higher secondary teachers as well aslibrarians that were appointed and the pay-scale that was given to thoseteachers. The tabular chart given in the Resolution was as under:-H

“2.1 Primary TeacherPrimary TeacherAS l. P o stN o . o P y - s l eG r N o . V n i s p y123451 . P r im r y 6 2 0 3 1 5 2 0 0 -5 T r 2 0 2 0 0 (U n tr i n )2 . P r im r y 2 4 5 3 4 4 5 2 0 0 -0 T r 2 0 2 0 0 B(T r in )3 . P r im r y 1 4 0 0 0 5 2 0 0 -0 T r 2 0 2 0 0 (G ra u t u n tr in )4 .P r im r y 2 2 7 3 95 2 0 0 -2 4 0 0T r 2 0 2 0 0 (G ra u t tr in ) T o t l 3 4 4 1 1 4 CT r s (in lu s iv o n u m r o te r s to p p o i n te in u t u re s in s t th la r Dv n i s )

2.2 Secondary Teacher/Librarian

S l. Po s tN o . o P ay -s cal eG rad N o . V ac an ci es p ay123451 . Se co n ary 4 4 6 3 5 2 0 0 -0 T eac er 2 0 2 0 0 E(U n tra in ed )2 . Se co n ary 2 5 0 3 8 5 2 0 0 -2 4 0 0 T eac er 2 0 2 0 0 (T rain )3 . L ib rari an 1 9 0 0 5 2 0 0 -0 2 0 2 0 0 4 . i gh r 3 0 5 8 5 2 0 0 -0 Se co n ary 2 0 2 0 0 T eac er F(1 0 + 2 ) (u n t rain ) 5 .H i gh r 2 6 7 7 45 2 0 0 -2 8 0 0Se co n ary 2 0 2 0 0 T eac er (1 0 + 2 ) (t ra in ) T o tal 6 1 2 3 3 T eac ers G(i n clu s iv o n u m ers o tea ers to ap p o in te in fu tu re as ag in s t t ec la red v ac an ies )

APara 2.5 of the Resolution was as under:-

“2.5 The benefit of Dearness Allowances; Medical Allowances;House Rent Allowances and Annual Increment, as announcedfor State Govt. Employee from time to time, will be extended toNiyojit Trained, Untrained |Primary, Secondary, Higher SecondaryBTeachers and Librarians.”

The Resolution further prescribed the minimum basic pay-scalefor trained primary, secondary and higher secondary teachers as well asthe librarians from 1.7.2015. Additionally, the Resolution stated thatamounts of Rs.2,000/- for trained teachers, Rs.2,400/- for secondaryCtrained teachers and librarians and Rs.2,800/- for higher secondarytrained teachers would be payable as Grade Pay. Similarly, in cases ofuntrained teachers it was stipulated that with effect from 1.7.2015 therewould be rise of at least 20% in their emoluments and they would alsobe entitled to Special Allowance. The Resolution further stated that therevised emoluments would entail financial impact as under:-D

Particulars of additional financial impactSl. GradeNumber of Total Total Total No.Niyojit emoluments emoluments additional Teachers payable in being paid financial who terms of the presently impact would pay-scale (figure in benefit crores)1 Primary 344114 6693.23 4173.21 2520.04 Teacher 2 Secondary 61233 1259.30 830.85 428.45 Teachers, Higher Secondary Teachers and Librarians Total 405347 7952.55 5004.06 2948.49

22. When the matters were taken up for consideration by theDivision Bench, it was submitted on behalf of the Writ Petitioners thatboth categories of teachers i.e. Government Teachers and NiyojitTeachers were imparting instructions in the same nationalized schoolsand yet there was considerable difference in the emoluments paid to

Niyojit Teachers; that both the categories of teachers were dischargingsame responsibility and were teaching the same syllabus and there wasno difference in the performance of their duties and responsibilities; thatthe distinction made between these two categories was completelyunreasonable and that on the basis of constitutional principle of “equalpay for equal work” Niyojit Teachers were entitled to same salary, pay-scales and emoluments as were payable to the Government Teachers innationalised schools. Strong reliance was placed on the decision of thisCourt in State of Punjab and others vs. Jagjit Singh and others[2] andparticularly on paras 42 and 44 thereof.

While defending the action on part of the State, the learnedAdvocate General submitted inter alia that the Writ Petitioners wereappointed under the provisions of 2006 Rules and as such, they could notchallenge the validity of the Rules under which they were appointed;that the teachers appointed before 2006 were appointed by the Directoron the recommendations of Vidyalaya Seva Board/Bihar Public ServiceCommission/Subordinate Service Selection Board whereas NiyojitTeachers were appointed under completely different sets of Rules; thatthe teachers appointed prior to 2006 was dying or vanishing cadreand there were no fresh appointments in that category; thus the NiyojitTeachers could not claim any parity on the basis of “equal pay for equalwork”.

At the conclusion of the hearing, written submissions were alsofiled on behalf of the State to the following effect:-

“1. That in the instant matter argument proceedings are completedand order reserved on 09.10.2017, the instant written submissionis being filed with view to supplement the contentions raised inthe earlier affidavits in respect of claim raised by the petitionersin this case.

2. That it is stated that at present 3,19,703 teachers in ElementaryEducation and 37,529 teachers in Secondary & Higher SecondaryEducation are working under Panchayati Raj institutions and UrbanLocal Bodies and the State Government provides grants-in-aid tothe local bodies for the payment of salary to such teachers and atpresent the estimated budgetary expenditure is about Rs.8924.48Crores per annum.

3. That if the teachers appointed by the local bodies are allowedsalary at par with teachers of dying cadre of State Government,the estimated budget will come to Rs.18853.96 crores, for whichadditional budgetary allocation of Rs.9929.48 crores will berequired.

4. That it is relevant to mention here that there are large numberof vacancies of teachers from Elementary level to HigherSecondary level which are likely to be filled up in due course. Asper available information, 1,71,775 vacant posts of teachers inElementary Education and 38000 vacant posts in Secondary/HigherSecondary Education exist and this way, an additional amount ofRs.6144.02 crores would be required to meet salary for paymentof future recruitments.

5. That in view of aforementioned discussions, it would be evidentthat an additional budgetary allocation of Rs.16073.50 crores wouldbe required to meet the expenses likely to be incurred in paymentof salary to the working teachers as well as teachers likely to berecruited in near future under local bodies in addition to the presentestimated budgetary expenditure of Rs.8924.84 crores, whichwould be apparent from the chart annexed herewith. photocopyof composite chart is annexed herewith an is marked as Annexure-R in this written submission.

6. That it is relevant to point out here that at present the totalbudgetary provision on education by the State Government isRs.25251 crores which is about 16% of total budgetary provisionof the State Government and if the prayer of the petitioner ofthese bunch of writ applications would be allowed, the fiscalcondition of the State would get adversely affected and further, itwould also affect all other duties and functions including welfareprogramme of the State Government.

7. That in view of the aforementioned facts, the deponent humblysubmits that while deciding the issue in question, the aforesaidfact needs to be considered by this Hon’ble Court.

23. All the Writ Petitions were allowed by the High Court by itsjudgment and order dated 31.10.2017. During the course of said judgment,following issues were framed:-

“(i)Whether Rules 6 and 8 of Rules 2006 are consistent withAArticle 14 of the Constitution of India or it is violative ofArticle 14 of the Constitution.

(ii)Whether the Niyojit Teachers are entitled to equal pay forequal work at par with the teachers appointed in thenationalised school prior to coming into force 2006 RulesBornot?

(iii) Whether the writ petitioners are entitled to direction forfixation of their pay at par with their counterparts teachersappointed in the nationalised school prior to framing of 2006Rules or not?”

24. It was observed that there was no pleading that the NiyojitTeachers appointed after 2006 were, in any manner, inferior in qualificationor training and that there was no material to suggest that they weredischarging different duties and responsibilities in the same institution. Itwas found that the admitted position was that both categories of teacherswere discharging similar duties of imparting instructions in same schoolsand were having necessary qualifications as were possessed by theteachers appointed before 2006. The High Court placed reliance on thedecisions of this Court in Jagjit Singh[2]and Jaipal and others vs. Stateof Haryana and others[3] and found that the action on part of the Statein denying the pay-scales to Niyojit Teachers was arbitrary andunreasonable. It was concluded as under:-

“58. Thus materials on the record are clinching on the point thatthe Niyojit Teachers are regular teachers working in thenationalised school under the control of the State Government.The State Government has adopted two different pay-scales onefor the Niyojit Shikshak and the other for the teachers known asregular teachers appointed prior to framing of 2006 Rules. Suchdiscrimination in the pay-scale on the basis of artificial distinctionis unreasonable.”

25. During the course of its discussion, it was also observed asunder:-

“46. I also find that the poor scale to the Niyojit Shikshak hasadversely affected the academic atmosphere in the state of Bihar.

2 (2017) 1 SCC 148

3 AIR 1988 SC 1504

The ill paid teachers without having any promotional prospectscannot be expected to deliver the best. The settled principle ofpersonal management is that incentive and prospect boost themoral of man force in service. The better salary and prospect inthe career is catalyst for the best performance, the teachers insuch schools drawing less than the class 4 employee are not goodto the institution and the society. It is matter to introspect andthe State Government must rise to the situation and undo theinjustice by making payment at par with the other regular teachesto the Niyojit teachers. It appears that the poor payment to theteachers appointed under 2006 Rules has adversely affected therecruitment of the best and most competent teachers and probablythat is one of reasons that there is mushrooming of coachingInstitutes where the students are more attracted then regularteaching in the school. The Court cannot ignore the ground reality.”

Finally, the High Court directed, inter alia,D“(ii) The petitioners are entitled to “equal pay for equal work”

(iii) The respondents are directed to fix their pay-scale like regularteachers of the nationalised school with effect from the initialdate of appointment notionally and actual payment with effectfrom 8.12.2009, the date of filing of CWJC No.17176 of 2009, inEview of the fact that such grant of relief from the date of filing ofthe writ application was approved by the Apex Court in the caseof State of Haryana vs. Charanjit Singh [4] discussed in thejudgment of Jagjit Singh’s[2]case (supra) and I have held thatRule 8 is inoperative, in effective, inapplicable from the date ofFinception as it is arbitrary and unconstitutional and violative ofArticle 14 of the Constitution so far as the Niyojit Shikshak areconcerned.

(iv) The respondents are also directed to revise the pay-scale ofthe petitioners according to the principles of pay revision underrecommendation of the 7[th] Pay Revision to the Niyojit Shikshaklike other regular employees after granting equal pay for equalwork notionally from the date of their appointment and actualpayment with effect from the date of filing of 1[st] of the batch ofwrit petitions, i.e. 8.12.2009.

H4 (2006) 9 SCC 321

(v) Such exercise must be completed within period of threemonths from today and monetary benefits admissible to the NiyojitShikshak must be paid to them within further period of threemonths.”

26. State of Bihar, being aggrieved, has challenged the aforesaiddecision of the High Court in these appeals. On 29.01.2018 this Courtpassed the following order:-

“The question raised in this batch of petitions is whether theremust be parity in the teachers recruited by the local bodies andteachers recruited by the State Government.

According to the stand of the State Government, the teachersrecruited by the State Government prior to 2006 are dieing cadre.There are about 50,000 teachers in the category of teachersrecruited by the State Government as against approximately3,50,000 teachers in the category of the teachers recruited by thelocal bodies. It is submitted that there is thus, only one permanentcategory i.e. those recruited by local bodies. The salary paid tothe second category is roughly Rs.20,000/- as against the salaryof Rs.56,000/- on an average paid to the teachers recruited by theState Government as of now.

Even though, on principle, there has to be parity in the salary ofthe teachers, whether recruited by the State Government or bythe local bodies. If any filters, consistent with the law, are requiredto be employed for giving the parity, the same can be done.However, question is of applicability of such principle wherecategory of teachers in first category is declared dieing cadre.Secondly, we need to consider whether it is practical to fasten theState Government with the liability for the arrears. The stand ofthe State is that in future there will be only one category i.e.teachers recruited by the local bodies. Even in such situation,there has to be rational in the pay package of the teachers recruitedby the local bodies. In doing so, the amount paid by the CentralGovernment ought to be utilised by the State Government and theState government may consider the view-point of the respondents

and come out with proposal which may be reasonable. It mayconstitute an Expert Committee of at least 3 officers in the rankof Chief Secretary. The said Committee will also be free to interactand consider the view-point of the concerned teachers as well asany other stakeholders, in case any suggestion is received by it.Such suggestion may be addressed/given to the Chief Secretarywhich in turn can be considered by the Expert Committee.

We accordingly adjourn the matter to 15[th] March, 2018 forfurther consideration.

We consider it necessary to request Mr. P.S. Narasimha,learned Additional Solicitor General, to assist the Court to placethe view-point of the Central Government before the Court.

Status quo, as on today, be maintained in the meantime.”

27. Accordingly, an Expert Committee consisting of ChiefSecretary-Bihar, Principal Secretary-General Administration Departmentand Principal Secretary-Water Resources Department was constituted.The Committee set out the background facts as under:-

“… … …The Committee perused the Rules relating to niyojan ofteachers under the Panchayati Raj Institutions as well as MunicipalBodies which was promulgated in the year 2006 and was amendedfrom time to time. In view of provisions under rule-20 of theBihar Panchayat Primary Teachers (appointment & Serviceconditions) Rules, 2006, the earlier contractual appointees on thepost of Panchayat Shiksha Mitra were adjusted/absorbed aspanchayat/block teachers w.e.f. 01.07.2006. Panchayat ShikshaMitra were appointed on contractual basis for period of 11 monthson fixed remuneration of Rs.1500/- per month from the year2002-03 in the rural areas. The total number of such contractualappointees was 1,04,114 on 01.07.2006, who were adjusted/absorbed on the post of panchayat/block teacher and were paid afixed pay of Rs.5000/- per month in case they were trained andRs.4000/- per month in case they were untrained.

In the said rules, 2006 it was also provided that after everythree years there shall be an increment of Rs.500/- in case of

trained and Rs.300/- in case of untrained on the basis of theirevaluation as prescribed.

The Rules, 2006 was amended in the year 2009 wherein provisionfor Evaluation Test was made and it was provided that afterqualifying in the said test, the increment in pay shall be granted. Itwas further provided that maximum three attempts would be givenfor qualifying in the said test failing which they shall be terminatedby their respective employer. The said evaluation test was onlyfor the purpose of increment in pay and not for grant of pay-scale, equivalency or certification, if any.

6. In view of provisions under Article-21A of the Constitution ofIndia, the education to the children of age group 6-14 has beenmade fundamental right and in the light of Right of Children toFree & Compulsory Education Act, 2009 which came into forcew.e.f. 01.04.2010, the National Council for Teachers Education(NCTE) has been notified as the academic authority by the CentralGovt. The NCTE has fixed the minimum eligibility criteria forappointment on the post of primary teachers and in that background,Bihar Panchayat Primary Teachers (appointment & Serviceconditions) Rules, 2012 has been framed wherein the minimumeligibility criteria for appointment has been fixed that candidateshould be qualified in Teachers Eligibility Test conducted by theCentral or State Govt. Thus, the Teachers Eligibility Test is merelyan eligibility to make an application for his/her selection. In otherwords, no person can be appointed on the post of teacher unlesshe successfully passes through the requisite selection process.

7. Similarly, rules for selection on the post of teacher in Secondary& Higher Secondary Schools were also promulgated. Selection/appointment in the primary & secondary segment was made after2006 by the Gram Panchayat & Municipal bodies and no provisionfor any examination/test was made in the said selection process.

8. For appointment on the post of primary teacher, prior to 2006Rules, rules were also framed in 2003 wherein it was providedthat recommendation shall be made for such appointment afterconducting preliminary & mains examination by the Staff SelectionCommission, Bihar.

9. Similarly, for appointment on the post of Secondary Teacher,prior to 2006 Rules, rules were also framed in 2004 wherein itwas also provided that recommendation shall be made for suchappointment after conducting preliminary & mains examinationby the Staff Selection Commission, Bihar.”

It, thereafter, considered the current situation after the Resolutiondated 11.8.2015 and implementation of the recommendations of 7[th] PayCommission. The Committee went on to observe:-

“18. It may be noted that in the elementary schools there areabout 3,19,703 niyojit teachers whereas; in the secondary/highersecondary schools there are about 38,715 niyojit teachers (includinglibrarians). Out of those teachers working in the elementaryschools, 2,65,000 teachers are covered under the Sarv ShikshaAbhiyan. For payment of salary to the teachers covered underthe Sarv Shiksha Abhiyan, the percentage of share of CentralGovernment and State Government is 60% and 40% respectively.

22. … … 1. It is financially impractical to act upon suggestionsreceived for implementation of order of the Hon’ble High Courtdated 31.10.2017 relating to grant of pay scale to the niyojitEteachers notionally from the date of their initial joining and actualbenefits from 08.12.2009 at par with that of Assistant Teachersappointed by the State Government, for the reasons that if thesaid order is implemented, the State Government would be liableto pay an amount of about Rs.52000/- crores in terms of arrearsto such teachers, which would not be possible from the financialFresources of the State Government.”

The Committee, then, suggested:-

“Taking into account the financial resources of the StateGovernment and procedure adopted for niyojan of such teachers,upgraded pay structure can be granted to such niyojit teachers(including teachers who have qualified in the Teachers EligibilityTest) after going through filtration process. The basis of filtrationprocess should be special examination conducted for the saidpurpose. Two separate chances shall be given for appearing inthe special examination.”

It was further suggested that upgraded pay structure could begranted to such Niyojit Teachers who succeeded in special examinationconducted for said purpose and thus, teachers who pass such specialexamination be covered under the upgraded pay structure with anincrement of 20% in their pay.

28. An affidavit in reply was, thereafter, filed on behalf of theMinistry of Human Resource Development, Union of India. It wasstated that Sarva Shiksha Abhiyhan (SSA) and Rastriya MadhyamikShiksha Abhiyan (RMSA) were operational from the financial years2000-2001 and 2009-2010 respectively till 2017-2018 and that both theprogrammes were Centrally Sponsored Schemes under which fundingwas shared between Central and State Governments. These programmeswere conceived to achieve Universal Elementary Education. It wasthen stated:-

“23. To summarise, it is submitted that the Sarva Shiksha Abhiyan(SSA), the erstwhile Centrally Sponsored Scheme was beingimplemented since 2001-02 in partnership with the StateGovernments and Union Territory Administrations foruniversalising elementary education across the country. Its overallgoals included universal access and retention, bridging of genderand social category gaps in education and enhancement of learninglevels of children. Subsequent to the enactment of the RTE Act,2009 by Parliament, the SSA norms were revised to harmonisewith RTE provisions. Funds under SSA are provided for morethan 40 interventions such as opening of new schools, residentialschool facilities, additional class rooms, provisioning for teachers,periodic teacher training etc. The SSA Framework also providessupport for additional teachers to maintain Pupil Teacher Ratio(PTR) in schools and teachers for new elementary schools openedunder SSA programme. Part of the funds required for suchpositions approved and filled-up under the SSA programme weremet by the Central and State Governments. Since the recruitmentand other service matters of these teachers are under thedomain of State Govts. and UTs, the salary and pay fixationfor these teachers was done by the respective States and UTs.

24. That the Chapter-III point 21 of the Financial Managementand Procurement (FMP) Manual under the heading “Appointment

of teachers” provided that SSA would be an addition to Statesand UTs and the States and UTs would have their own norms forrecruitment of teachers and payments of salary to new recruits.The States will be free to follow their own norms as long as theseare consistent with the norms prescribed by NCTE and Assistancewill not be available for filling up existing vacancies that havearisen on account of attrition. true typed copy of theFMP Manual of SSA is attached and marked herewith asANNEXURE-8.

New Scheme – Samagra Shiksha

25. The Sarva Shiksha Abhiyan (SSA), Rashtriya MadhyamiikShiksha Abhiyan (RMSA) and Centrally Sponsored Scheme onTeacher Education (CSSTE) were the three major flagship schooleducation development programmes of the Ministry of HumanResource Development (MHRD), Government of India beingimplemented in partnership with State/UTs since 2000-01, 2009-10 and 1987 respectively. While the SSA covered the elementarylevel (grades I-VIII), the RMSA covered grades IX-X, whereasCSSTE aims to provide infrastructural and institutional support toGovernment Teacher Education Institutions (TEIs) to enhancethe quality of teachers. The approval of these schemes was uptothe end of 12[th] five year plan in 2016-17. These were extendedfor period of one year i.e. 2017-18, pending their Evaluation andfurther approval. Although, the Central Sponsored Schemes ofSSA, RMSA and TE have significantly contributed towards thegovernment’s efforts to provide access to education in the country,their scope and coverage remained segmented and did not providefor any intervention for the pre-school level and only very limitedsupport for senior secondary levels. Also, there was need tofocus on the improvement of quality of education and learning outcomes of students. Further, independent evaluations of theSchemes instituted at the end of the 12[th] five year plan, had alsosuggested increased convergence and integration between theSchemes through single school education developmentprogramme covering grades I-X/XII. Therefore, it has beendecided to formulate single scheme for School Education by

merging the different school education development schemes andprogrammes like the SSA, RMSA and CSSTE into an overarchingprogramme with the broader goal of improving school effectivenessmeasured in terms of equal opportunities for schooling and equitablelearning outcomes. The draft guidelines for the new scheme werecirculated among the States and UTs for their comments videletter No.2-16/2017-EE.3 dated 22[nd] January, 2018 and alsodiscussed in the National Workshop of all States and UTs held on30[th] January 2018. The new scheme – ‘Samagra Shiksha’ – hasbeen approved by the Cabinet on 28[th] March, 2018 and it cameinto the effect from 1[st] April, 2018.

26. The vision of the scheme is to ensure inclusive and equitablequality education from pre-school to senior secondary stage inaccordance with the sustainable Development Goal (SDG) forEducation. The major objectives of the scheme are provision ofquality education and enhancing learning outcomes of students;Bridging Social and Gender Gaps in School Education; Ensuringequity and inclusion at all levels of school education; Ensuringminimum standards in schooling provisions; PromotingVocationalisation of Education; Support States in implementationof Right of Children to Free and Compulsory Education (RTE)Act, 2009; and Strengthening and Upgradation of State Councilsof Educational Research and Training (SCERTs/State Institutesof Education (SIEs) and District Institutes of Education andTraining (DIETs) as nodal agencies for teacher training.

27. The Samagra Shiksha envisages the ‘school’ as continuumfrom pre-school, primary, upper primary, secondary to seniorsecondary levels. This will smoothen the transition across thevarious levels of school education and aid in promoting universalaccess to children to complete school education. The majorinterventions across all levels of school education, under thescheme are: (i) Universal access including infrastructuredevelopment and retention; (ii) Gender and Equity; (iii) InclusiveEducation; (iv) Enhancement of Quality; (v) Financial Supportfor Teachers Salary; (vi) Digital Initiatives; (vii) RTE entitlementsincluding uniforms, text books, etc; (viii) Pre-school Education;(ix) Vocational Education; (x) Sports and Physical Education; (xi)

Strengthening of Teacher Education and Training; (xii) Monitoring;and (xiii) Programme Management.

28. The Budget for all the three schemes is being merged into asingle Budget provision. This will be the Central share to beprovided to the States and UTs with the existing fund sharingpattern of 60:40 for all the States, with the exception that thepattern will be 90:10 for North-Eastern and three Himalayan Statesand 100% for Union Territories without Legislature.

29. In order to focus on improvement of educational indicatorsand quality of education, part of the funds will be allocated amongstthe States and UTs based on an index of requirements/performance. The use of funds would be governed by approvedinterventions within the ceilings decided by the empoweredcommittee of the department i.e., the Project Approval Boardheaded by Secretary, Department of School Education & Literacy.A single Utilisation Certificate would be required from the Statestreamlining the merged Schemes. Further, it was noticed that inthe erstwhile schemes of SSA and RMSA, the support for teachersalary was as per the State notified salary structures which showeda wide variation. Therefore, to maintain uniformity in centralsupport for teacher salary for all States/Uts and provide funds forquality enhancement, the ceiling limits for support for teachersalaries have been laid down under the integrated scheme. Thus,while the teachers will continue to be governed by the Terms andConditions of the respective States/Uts, the support under theIntegrated Scheme would be the same across all States and Utsin the Country. The focus of the scheme is to support States intaking initiatives to improve the learning outcomes, strengthenteacher training institutions, enhanced capacity building of teachersand use of digital technology for effective outcomes. The normsfor salary of teachers has been attached and marked herewith asANNEXURE-9.”

29. The affidavit then gave details of the funds allocated to theStates/UTs under the SSA from the year 2014-15 to 2017-18 in atabular chart as under:-

STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE791COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]Status of Four year Central Releases under SSAAS. 2014-15 2015-16 2016-17 2017-18 No.BE 28258 22000 22500 crore23500 crore crore crore RE 24380 22015.10 22500 crore 23593.86 Crore crore crore (Rs. In lakh)State Central Central Central Central BReleases Releases Releases Releases 1 Andam an & 147.21 359.46 479.14 1945.53 Nicobar 2 Andhra 154566.6766810.81 63302.18 70431.00 Pradesh 3 Arunachal 33607.82 18179.44 19956.64 23022.07 Pradesh 4 Assam 97782.19 100464.6487652.30 123584.00 C5 Bihar 216336.05251557.32270688.45 255797.00 6Chandigarh3893.533521.813333.569265.507 Chhattisgarh 92705.30 62219.70 59262.77 67412.85 8 Dadar & 911.74 594.91 1068.37 5476.54 Nagar Haveli 9 Dam an & 72.77 78.38 300.00 1038.57 Diu D10 Delhi 6223.74 7293.80 8306.20 10976.90 11 Goa 1310.39 813.58 869.11 862.60 12 Gujarat 78476.49 61563.84 77740.52 65046.00 13 Haryana 42110.65 34501.21 32000.88 36355.00 14HP12547.3012139.1312825.4630874.0015 J & K 51276.52 129980.54 107250.05 153797.98 16 Jharkhand 75775.18 55863.31 50945.73 58984.54 E17Karnataka66213.5241759.3454495.5154882.0018 Kerala 21844.02 12858.86 11316.74 13680.00 19 Lakshadweep 58.83 139.55 239.87 406.52 20Madhya 149094.92160197.86154455.08173814.00Pradesh 21Maharashtra58288.5441225.2860369.6564232.0022 Manipur 21465.81 18355.46 4405.31 18377.00 F23 Meghalaya 20404.52 16627.04 20067.01 33579.51 24Mizoram14739.709437.5110934.3112000.3425 Nagaland 20568.74 8739.53 10725.35 11717.00 26 Puducherry 100.00 583.14 304.68 622.73 27 Punjab 36215.98 30003.22 30002.69 31665.00 28Rajasthan248041.55193462.08182578.48198973.0029 Sikkim 4526.78 4054.36 3479.24 5684.35 30 Telangana 81406.78 21776.01 41776.09 44244.72 G31Tamil Nadu135819.7982111.7382111.3086644.0032 Tripura 19800.14 16956.75 19190.95 20220.38 33 UP 449867.53505434.32505433.98 424980.68 34Uttarakhand22880.5722588.4025268.9862499.0035 West Bengal 97240.30 84679.41 82185.33 89657.00 Central Releases 2403016.41 2159013.362165744.89 2349361.32 Total

A30. The affidavit then considered the financial implications if thedirections issued by the High Court in the present case were to beimplemented in all States/UTs. It was stated:-

“31. That consequent to the interim order of this Hon’ble Courtdated 27[th] March, 2018 in the present Petition, the Department ofBSchool Education & Literacy, Ministry of Human ResourceDevelopment, Government of India has attempted to estimate thefinancial implication of the impugned judgment across the States.The department has collected information from all 36 States andUTs regarding number of teachers sanctioned under the erstwhileschemes of Sarva Shiksha Abhiyan (SSA), Rashtriya MadhyamikCShiksha Abhiyan (RMSA) and number of teachers available underthe State cadres at elementary and secondary level. Theinformation was collected disaggregated for Permanent Teachers,Contractual Teachers and Teachers appointed by Local Bodiesunder SSA, RMSA and State Cadre. Information on averageDmonthly salary for each category of teachers was also collected.32. That the Financial implication of the impugned judgment hasbeen estimated based on the number of teachers reported by Statesfor the year 2017-18 under the above mentioned three categoriesand their average monthly salary. In case the Local BodyEappointed teachers/Contractual Teachers are given salary at parwith the regular teachers of State cadre, it is estimated thatfinancial implication will be minimum of Rs.Thirty Six ThousandNine Hundred Ninety Eight Crores (Rs.36998 crores) per year.This estimation does not include perks and other benefits whichare applicable as per the extant rules of the respective States/FUTs, which will further add to the cost. true typed copy of theEstimation sheet is annexed and marked herewith asANNEXURE-11"

Annexure 11 to the affidavit was as under:-

GS.StateTentative requirement ofNo.additional Salary funding1Andaman & Nicobar4.872Andhra Pradesh57.823Arunachal Pradesh183.164Assam316.94H

A5Bihar10460.706Chandigarh17.837Chhattisgarh5867.798D & N Haveli19.769Daman & Diu4.7510Delhi56.66B11Goa7.8212Gujarat.7813Haryana267.7714HP463.5615Jammu & Kashmir117.83C16Jharkhand3861.9817Karnataka018Kerala31.5419Lakshadweep2.3420Madhya Pradesh2971.13D21Maharashtra157.4922ManipurNA23Meghalaya288.0924Mizoram102.6425Nagaland90.03E26Odisha429.1927Puducherry.9828Punjab147.0429Rajasthan030Sikkim131.68F31Tamil Nadu032Telangana033Tripura103.3134Uttar Pradesh8448.7835Uttarakhand67.74G36West Bengal2316Total Fund required36998.00

31. When the matters were taken up for hearing, the submissionsfor the State Government were made by Shri Dinesh Dwivedi, ShriRakesh Dwivedi and Shri Shyam Divan, learned Senior Advocates.

AA) Shri Dinesh Dwivedi, learned Senior Advocate submitted thatthe teachers appointed before 2006 and the Niyojit Teachers appointedin terms of 2006 Rules stood on different footing and the distinctionmade by the State Government on that basis was quite natural andrational. It was the decision of the State Government not to make anyfurther appointments in the category of State Government Teachers andBas such, those appointed before 2006 were part of dying or vanishingcadre. The reliance on pay-scales of such dying or vanishing cadre andto apply them to more than four lakh teachers appointed in terms of2006 Rules would not only be an incorrect and imperfect idea but wouldalso entail tremendous economic burden on the State. In such matters,Cthe economic capacity has always been considered by this Court to be arelevant circumstance. In his submission, the distinction between thoseappointed prior to 2006 forming dying cadre and those appointed interms of 2006 Rules, who were appointed at local or block levels, was avalid classification. He relied upon judgments of this Court in i) Tarsem

Lal Gautam and anotherr. vs.State Bank of Patiala and others[5],Dii) V. Markendeya and others vs. State of Andhra Pradesh andothers.[6], iii) Dharwad Distt. P.W.D. Literate Daily Wage EmployeesAssociation and others vs.State of Karnataka and others[7],iv) Secretary, Finance Department and others vs. West BengalRegistration Service Association and others[8], v) State of U.P. andEothers vs. Ministerial Karamchari Sangh[9], vi) State of Haryanaand another vs. Haryana Civil Secretariat Personal StaffAssociation[10] and vii) S.C. Chandra and others vs. State ofJharkhand and others[11].

B) Shri Rakesh Dwivedi, learned Senior Advocate submitted that

Fwith the insertion of Article 21A in the Constitution and Right to Freeand Compulsory Education of Children being Fundamental Right, theState was required to spread educational opportunities and establishschools in remotest areas. The State had never been averse to grantingpay-scales which could be more remunerative but initially the emphasishad to be on spread of education within the constraints of its resources.G5 (1989) 1 SCC 1826 (1989) 3 SCC 1917 (1990) 2 SCC 3968 1993 Supp (1) SCC 1539 (1998) 1 SCC 42210 (2002) 6 SCC 72H11 (2007) 8 SCC 279He submitted that as part of the Constitutional obligation of providingfree and compulsory education, the State has set up 21261 new primaryschools, upgraded 19617 primary schools to middle school level and alsoupgraded 3129 middle schools to secondary or senior secondary leveland that the State has presently been spending 20% of its budget oneducation. Since the first and foremost objective was to achieve spreadof education, with the passage of time, the State has consciously beenimproving the emoluments which were initially granted to Niyojit Teachers.He further submitted that in terms of provisions of the Act it is theresponsibility of the State to spread education in every neighbourhoodand in every nook and corner of the State. He submitted that the policyof roll out of universalisation and spread of education was carefullycrafted keeping in mind the capacity of the State. First task having beenachieved, the State is now gearing up for improving the quality ofeducation and in that pursuit the State would certainly make the serviceconditions more remunerative to attract better talent and render itsconstitutional obligation with greater emphasis, but to compare the presentscales with that of dying or vanishing cadre was completely unjustified.He relied upon decisions of this Court in i) Official Liquidator vs.Dayanand and others[12], ii) State of Punjab and another vs. SurjitSingh and others[13], iii) Steel Authority of India Limited and othersvs. Dibyendu Bhattacharya[14], iv) Gopal Chawala and others vs.State of Madhya Pradesh and others[15]and v) M.M.L. Aurora andothers vs. Union of India and others[16].

Shri Rakesh Dwivedi, learned Senior Advocate also gave Note,the relevant part of which was as under:-

“After change of government in Bihar in November 2005, it wasfound that 12% (23,15,362) children between the ages of 6-14years were out of school. Due to the pro-active stance of theState of Bihar and implementation of the Right to Education Actand the mandate of 73[rd] and 74[th] Amendments read with 11[th] and12[th] Schedule, thisstands reduced to less than 1% (2,01,806)children today.

12 (2008) 10 SCC 113 (2009) 9 SCC 514

14 (2011) 11 SCC 122

15 (2014) 13 SCC 79216 1995 Supp (1) SCC 279

CDE

In order to rectify this and extend the reach of education (bothrural and urban) within its meagre resources, State of Bihar tooka policy decision and resolved to recruit new teachers through itsPanchayati Raj Institutions. New Rules were enacted and allrecruitments to the post of teachers at all levels of school educationwere made through this mode only. Old method of recruitmentwas abolished and the cadre of existing Assistant Teachers becamea Dying Cadre, as per chart below:

SchoolRegular Regular Teachers (at present)Teachers in 2006 Elementary 1,04,259 57293 By its order dated 13.10.2011 in Contempt Petition, Bihar was compelled to appoint 34,540 Assistant Teachers on the basis of merit list prepared by this Hon’ble Court (reported as 2014 (11) SCC 405. 32,327 were appointed and dispute was raised in respect of 2213. 6170 out of them have retired and 26157 still remain in service. (31136+26157 = 57293) Secondary18458 7800

After Right to Education Act, 2009, Union Govt. declared SarvaShiksha Abhiyan as the main instrument to implement theprovisions of the Right of Children to Free & Compulsory EducationAct, 2009 and consequently, the same was renamed as SSA-RTE.Niyojit Teachers (respondents) are governed by new Rules framedunder the 73[rd] and 74[th] Constitution Amendment. RTE providesfor sharing of resources between Centre and States forimplementation of the Act.

Population of the State of Bihar is 10.41 crores. After 2005, ithas opened 21261 new Primary Schools and Upgraded 19617Primary Schools to Middle School under Sarva Shiksha Abhiyan.3129 Middle Schools were upgraded to Secondary or SeniorSecondary School, which on date is as follows:

Impugned judgment has treated the matter as simple servicedispute. It has failed to appreciate the larger objective sought tobe achieved, financial capacity of the State, financial impact onthe Union of India and the State of Bihar, balancing competinginterests of the regular and niyojit teachers, its financial ramificationfor other States in the implementation of Right to Education Actand Sarva Shiksha Abhiyan, its implication for all the otheremployees either working on contract or under different Schemesof the Center or the State and such like social objectives.”

C) Shri Shyam Divan, learned Senior Advocate submitted thatthe concept of “equal pay for equal work” was alien to this case and thecase involved complex policy issues. He submitted that the matter mustbe considered from the standpoint of the approach adopted by the StateGovernment and all the constitutional options that were open to the State.On one hand it was the goal set out under Article 21A which was soughtto be effectuated by the spread the education and on the other hand, theidea was devolution of powers to Panchayats in terms of Parts IX andIXA of the Constitution. The peculiar situation in Bihar was that at least12% of the children were not being educated at all. This was essentiallybecause of inadequate number of schools and inadequate number ofteachers. This was sought to be remedied by appointment of one lakhShiksha Mitras initially to cater to rural areas. The challenge to bringthose 12% children who were outside the schools into the stream ofeducation itself required tremendous efforts and consequent constraintson budgetary allocations. It is in this background that the attempts onthe part of the State must be seen. The State not only absorbed thoseShiksha Mitras but also recruited more than 3.50 lakh Niyojit Teachers.It was his submission that the attempts and advances so made by theState could neither be called exploitative nor was dignity of any individualteacher compromised in any manner. The developments since 2006 areindicative that the State has substantially been improving the pay-scalesand emoluments available to the Niyojit Teachers. He further submittedthat the changes in Education System brought about in the State of Biharpost 2006 and the substantial spread in education had also improved

DEFG

Aenrolment of girl students and helped achieve reduction in Total FertilityRate. He submitted Note as under:-

“1. Improvement in Girls Enrolment & Education

The enrolments of girls increased significantly from 57.75 Lac(43.47% of total enrolment) in 2005-06 to 101.37 Lac (50.69% oftotal enrolment) in 2016-17 in elementary classes (1-VIII) ofGovernment schools. Similarly, enrolments of girls considerablyincrease from 4.24 Lac in 2006-07 to 14.41 Lac in 2016-17 insecondary classes (IX-X) of government schools. The detailsare as under:-

Elementary Classes (I to VIII)Year Total Girls Enrolment % IncreaseEnrolment2005-0613282932 5775325 43.47% 2016-1719995608 10137266 50.69% -Secondary Classes (IXX)2006-071158904 424790 36.65% 2016-172865460 1441176 50.29%

The result of 10[th] and 12[th] Board also support the arguments andthe status of passed out girls from 2006 to 2017 of 10[th] and 12[th]Board is as follows:-

Year10[th]board12[th]boardTotal Girls % Total Girls % App.Appeared AppearedApp. Appeared App. Student Student 2005560376 186613 33.30%314802 99238 31.52% F2006599104 207705 34.67%339604 11057932.56% 2007688508 255463 37.10%460609 17011736.93% 2008769244 294514 38.29%508332 19445638.25% 2009901965 362506 40.19%583209 23411640.14% 2010974393 403226 41.38%607718 24683040.62% 201193133239932842.88%70206928338440.36%G20121262026 565228 44.79%812315 32839140.43% 20131364023 604247 44.30%820590 32351439.42% 2014133826861038845.61%99695441453341.58%20151424423 653307 45.86%1219315 48049139.41% 20161577840 725169 45.96%1152826 48411041.99% H20171763471 866283 49.12%1257342 55608444.23%

2. Reduction in Total Fertility Rate (TFR)

As per Sample Registration System (Registrar General of India),the Total Fertility Rate (TFR) of Bihar has been reduced significantlyfrom 4.3 in 2005 to 3.3 in 2016. This is directly related to educationalstandard of girls, who are potential mother. This can be seen fromthe report of sample Registration System (SRS) for the year 2016for the State of Bihar (copy enclosed as Annexure A) and reportof NITI Aayog (copy enclosed as Annexure-B) which is as follows:

Education LevelTotal Fertility Rate (TFR)Illiterate 4.2 Without formal education 3.9 Below Primary3.9Primary 3.3 Middle 3.0 Class-X 2.7 Class-XII2.2Graduate & above 2.1 State Average 3.3 National Average2.3

Source: - Sample Registration System (SRS) published Annually(Registrar General of India)

3. Breakup of Out of School Children (6-14 years)

-Out of School Children (614 years)Year Total Girls SC 2005-06 2315362 1128110 588491 2017-182018069497455297

Following chart was also placed on record indicating LiteracyRate in State of Bihar in last seven decades:-

YearTotalMaleFemaleIndia Bihar India Bihar India Bihar 1951 18.33 13.49 27.16 22.68 8.66 4.22 196128.3021.9540.4035.8515.358.111971 34.45 23.17 46.96 35.86 21.97 9.86 1981 43.57 32.32 56.38 47.11 29.76 16.61 1991 52.21 37.49 64.13 51.37 39.29 21.99 200164.8347.5375.2660.3253.7033.572011 73.04 61.80 80.14 71.20 64.60 51.50

It is evident from above table that the decadal growth in femaleliteracy in Bihar between 2001 and 2011 was 18%, which wasChighest in India. For this State Literacy Mission Authority (Govt.of India) gave award to the Principal Secretary, Department ofEducation, Govt. of Bihar in 2012.”

Shri Divan relied upon decisions of this Court in Bidi SupplyCompany vs.The Union of India and others[17], The State of GujaratDand another vs. Shri Ambica Mills Limited, Ahmedabad andanother[18], The Superintendent and Remembrancer of Legal Affairs,West Bengal vs. Girish Kumar Navalakha and others[19], H.H. ShriSwamiji of Shri Amar Mutt and others vs. Commissioner, HinduReligious and Charitable Endowments Department and others[20],ECol. A.S. Iyer and others vs. V. Balasubramanyam and others[21],Javed Niaz Beg and another vs. Union of India and another[22],Malpe Vishwanath Acharya and others vs. State of Maharashtraand another[23], Javed and others vs. State of Haryana and others[24],State of Maharashtra and others vs. Jalgaon Municipal Counciland others[25], Sooraram Pratap Reddy and others vs. DistrictFCollector, Ranga Reddy District and others[26]and Shivashakti SugarsLimited vs. Shree Renuka Sugar Limited and others[27].

17 1956 SCR 267

18 (1974) 4 SCC 656

19 (1975) 4 SCC 754

20 (1979) 4 SCC 642G21 (1980) 1 SCC 634

21 (1980) 1 SCC 634

22 1980 Supp SCC 155

23 (1998) 2 SCC 1

24 (2003) 8 SCC 369

25 (2003) 9 SCC 731

26 (2008) 9 SCC 552

H27 (2017) 7 SCC 729

32. Responding to the observations of the High Court in theJudgment under appeal and queries raised by this Court during the courseof hearing whether the emoluments received by Niyojit Teachers werelesser than the salaries of non-teaching staff in schools, following detailswere furnished by the State in tabular chart.

“(1) What are the salaries of non-teaching staff in schools?

There are posts of clerk and peon only under non-teachingstaff category in secondary/senior secondary schools. There areno posts of non-teaching staff in Primary Schools (Class I-V) andMiddle Schools (Class I-VIII).

Comparison of salary of Peon, Clerk and Niyojit Teachers

A. On initial appointment

(Amount in Rs.)Description Peon Clerk Primary Primary Secondary Senior (Working (Working Niyojit Niyojit Niyojit Secondary under under Teachers Teachers Teachers (10+2) State State (Trained)(Graduate (Trained) Niyojit Govt. Govt.) Trained) Teachers (Trained)Basic180001990013370133701337013370D.A. @ 7%12601393936936936936HRA @ 4%720796535535535535Medical100010001000100010001000Grosssalary209802308915841158411584115841

Note: No Grade Pay for Teacher for first two years of theirServices.

B. After completion of two years of service

Description Peon Clerk Primary Primary Secondary Senior (Working (Working Niyojit Niyojit Niyojit Secondary under under Teachers Teachers Teachers (10+2) State State (Trained)(Graduate- (Trained) Niyojit Govt. Govt.) Trained) Teachers (Trained)Basic 19100 21100 19650 20740 20740 21820 GD.A. @ 1337 1477 1376 1452 1452 1527 7% HRA @ 764 844 786 830 830 873 4% Medical 1000 1000 1000 1000 1000 1000 Gross 22201 24421 22812 24022 24022 25220 salaryH

802SUPREME COURT REPORTS

AC. After completion of two years of service with 20%proposed enhancement of salary as per recommendationof three persons committee constituted by the Hon’ble

Supreme Court.Description Peon Clerk Primary Primary Secondary Senior (Working (Working Niyojit Niyojit Niyojit Secondary under under Teachers Teachers Teachers (10+2) State State (Trained)(Graduate (Trained)Niyojit Govt. Govt.) Trained) Teachers (Trained)Basic 19100 21100 23610 24930 24930 26240 D.A. @ 1337 1477 1653 1745 1745 1837 7% HRA @ 764 844 944 997 997 1050 4% Medical 1000 1000 1000 1000 1000 1000 Gross 22201 24421 27207 28672 28672 30127 salary

33. The State also placed on record, increases in emolumentsgranted to Niyojit Teachers at various stages, as under:-

Increases in Salary of Elementary Niyojit Teachers(Trained) – At Glance

es cr ip tio nI ni tia l P r es en t In cr ea se % R m rk s fix r o ss in In cr ea s eS la ry S la ry m o u n t p er p er o M o n th M o n th * Sa l ry (in rs .)(I n R s .)(In R s.)R ecru it ed in 1 5 0 0 2 5 5 6 4 2 4 0 6 4 1 6 0 4 P ay S ale w .e.f. 2 0 0 3 0 1 .0 7 .2 0 1 5 & Sh i k sh in cre m en t o M i tra 2 .5 7 ti m es i n th (T rain ) as ic p y w .e.f. R ecru it ed in 5 0 0 0 2 4 8 4 3 1 9 8 4 3 3 9 7 0 1 .0 4 .2 0 1 7 s 2 0 0 6 – p er Pa n ch ay at / reco m m en tio n Prak n / o 7[th]P y N ga r o m m is si o n Sh i k sh k (T rain )R ecru it ed in 7 0 0 02 4 1 3 41 7 1 3 42 4 52 0 1 0 – Pa n ch ay at /P rak an / N ga r Sh i k sh k (T rain )R ecru it ed in 1 0 0 0 0 2 2 8 1 2 1 2 8 1 2 1 2 8 2 0 1 3 – Pa n ch ay at / Prak n / N ga r Sh i k sh k (T rain )

COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

*Note – Gross Salary includes Dearness Allowances (DA), HouseRent Allowances (HRA) & Medical Allowances.

After proposed enhancement of salary by 20%, as perrecommendation of three persons committee constitutedby Hon’ble Supreme Court.

Description Present Revised DA HRAMedicalProposed Basic Basic (7%)Gross ** Salary Recruited in 2003 –22130 26590 18611064 1000 30515.00Shiksha Mitra (Trained)Recruited in 2006 –214802581018071032100029649Panchayat/prakhand/Nagar Shikshak (Trained) Recruited in 2010 –208502505017541002100028806panchayat/Prakhand/Nagar Shikshak (Trained) Recruited in 2013 –19650 23610 1653944 1000 27207 panchayat/Prakhand/Nagar Shikshak (Trained)

**Note – As per recommendation of three persons committeeconstituted by Hon’ble Supreme Court, those Niyojit teachers,who pass the special examination, would be covered under theupgraded pay structure, as per the category mentioned as againsttheir designation in the proposed pay-matrix, with an increment of20% in their pay of the pre-upgraded scale, which are being paidw.e.f. 01.01.2016.”

34. Shri K.K. Venugopal, learned Attorney General for India,advanced submissions on behalf of Union of India. It was submittedthat though the teachers appointed prior to 2006 and Niyojit Teacherswere working in the same schools and carrying on similar functions,they formed separate cadres and came from different streams. Thelearned Attorney General relied upon decisions of this Court in State ofPunjab vs. Joginder Singh[28] and in Zabar Singh and others vs. theState of Haryana and others[29 ]and more particularly paragraphs 25,27, 28, 29, 30, 32, 33, 35, 36, 37 and 42 of said decision. According tothe learned Attorney General, if there are two different or dissimilargroups there can be disparity. He submitted that for employees of theState Government it was matter of status while Niyojit Teachers wererecruited through completely different source. In his submission for

28 1963 Suppl. 2 SCR 169

29 (1972) 2 SCC 275

Adoctrine of “equal pay for equal work” to be invoked there has to bewholesale identicality and if there be any distinction in matters includingmode of recruitment, the doctrine could not be made applicable. Healso relied upon decisions of this Court in Kishori Mohanlal Bakshi vs.Union of India & Ors.[30] and Randhir Singh vs. Union of India andothers[31], State of Haryana and others vs. Jasmer Singh and others[32],BState of U.P. and others vs. Ministerial Karamchari Sangh[9, ]OrissaUniversity of Agriculture and Technology and another vs. Manoj KMohanty[33], Government of W. B. vs. Tarun K. Roy and others[34],State of Haryana and others vs. Charanjit Singh and Others[4]andS.C. Chandra and others vs. State of Jharkhand and others[11].ItCwas submitted by him that the spread of education as was sought to beachieved in terms of the mandate of the RTE Act required the resourcesof the State to be utilised to the maximum and in such executive functionsand policy matters the Court ought not to interfere. He relied upondecision of this Court in Indian Drugs & Pharmaceuticals Limited Vs.Workmen, Indian Drugs & Pharmaceuticals Limited[35]and also invitedDattention to paragraphs 23 onwards from the affidavit of the Union ofIndia as well as the estimation of additional financial burden as quotedhereinabove. It was submitted that the direction passed by the HighCourt would result in complete budgetary mismatch and tremendousburden on the State.E35. In response to certain questions raised by the Court during thecourse of hearing, the learned Attorney General submitted that educationbeing concurrent list topic, the recruitment and other service conditionsof teachers including the matters concerning salary and pay fixationwere within the domain of the concerned State Government; that theFprovisions of the Act did not prescribe the percentage share of grant-in-aid by Central Government and that there was no obligation on part ofthe Central Government to provide 60% of the State’s education budgetor estimates; that no funds were sought by the State of Bihar to addressthe issues of disparity in salary of teachers and that State of Bihar wasgetting second highest funds under ‘Sarva Shiksha Abhiyan’. WithG

30 AIR 1962 SC 113931 (1982) 1 SCC 61832 (1996) 11 SCC 7733 (2003) 5 SCC 18834 (2004) 1 SCC 347H35 (2007) 1 SCC 408

respect to applicability of Rule 20(3) of 2010 Rules, the learned AttorneyGeneral submitted that said Rule was applicable only to Union Territorieswithout Legislatures, Kendriya Vidyalayas, Navodaya Vidyalayas andthe States and Union Territories with Legislatures were expected tohave their own Rules and State of Bihar had published its own set ofRules in 2011.

36. The submissions on behalf of Niyojit Teachers and theirorganizations who appeared as respondents and intervenors were led byMr. Kapil Sibal, learned Senior Advocate on behalf of Bihar RajyaPrarambhik Shikshak Sangh. The submissions of the other learnedcounsel who followed him are dealt with in the order that they appearedand argued. It was submitted by Mr. Sibal:-

(i) Niyojit Teachers were working in same schools, the managementand control of which, was taken over by the State. The NiyojitTeachers were imparting education in same schools and dischargingsame functions as were being discharged by the GovernmentTeachers.

(ii) RTE Act contemplated schools owned by the appropriateGovernment and those which are owned by the local authorities.In the present case all the schools in question were owned by theState.

(iii) Under Section 6 of the RTE Act the appropriate Governmentwas obliged to carry out the provisions of the Act within periodof three years.

(iv) Section 7 of the RTE Act put the responsibility on the CentralGovernment as well as the State Government concurrently forcarrying out the provisions of the Act.

(v) The Union Government had actually collected Education Cessand as such the budgetary constraints could never be an argumentto defeat the rights of Niyojit Teachers.

(vi) As matter of law, financial difficulty would be no ground tooppose the rightful demands of Niyojit Teachers for equal pay forequal work which has always been held to be constitutionalobligation.

A(vii) In fact, the obligation to raise money was on the State and itcannot be heard to raise plea of budgetary constraint.

(viii) Rule 7 of 2010 Rules obliged the Central Government toprepare annual estimates of capital and recurring expenditure forcarrying out the provisions of the Act for period of 5 years.BRaising of resources was integral to the functioning of and carryingout the obligations under the RTE Act.

He distinguished the decisions cited by the learned counselappearing for State of Bihar and relied upon decisions of this Court inDhirendra Chamoli and Another vs. State of U.P[36]., Bhagwan DassCand others vs. State of Haryana and others[37], Jaipal and others.vs. State of Haryana and others[3], State of Punjab & others. vs.Jagjit Singh and others.[2]. He submitted that education has alwaysbeen at the core and of immense importance for advancement of asociety and the State having failed to discharge its duty in ensuring non-discriminatory treatment to its teachers, the Court may set to malaiseDright. He submitted that the drift of the submissions advanced by theState as well as the Union of India would mean that there ought not tobe cadre of quality teachers.37. Mr. C.A. Sundaram, learned Senior Advocate appeared forcertain associations of teachers and submitted that it was not open toEthe State to plead and argue financial burden or difficulty in carrying outresponsibility enjoined by the provisions of the constitution and particularlyArticle 21A of the Constitution. It was his submission that effectivelyNiyojit Teachers were made to carry the burden and pay for theconstitutional goals which the States was obliged to achieve. HeFemphasized that nature of responsibility, qualifications, experience andduties discharged by Niyojit Teachers were at par with the GovernmentTeachers that both the categories were discharging their functions andimparting education in same schools and as such there could be nodistinction. He relied upon decisions of this Court in Ashoka KumarThakur vs. Union of India and others.[38], Society for Unaided PrivateGSchools of Rajasthan vs. Union of India and Another[39], Karnataka

36 (1986) 1 SCC 63737 (1987) 4 SCC 634

38 (2008) 6 SCC 1H39 (2012) 6 SCC 1

State Private College Stop-Gap Lecturers Association vs. State ofKarnataka and Others[40], Baseeruddin M. Madari and others. vs.State of Karnataka and Others[41], State of Uttar Pradesh and anothervs. Anand Kumar Yadav and others[42]

38. Mr. Vijay Hansaria, learned Advocate submitted that Article21A was inserted by the 86[th ]Constitutional Amendment Act on 12[th]December, 2002 but came into force on 01.04.2010. After enactmentof the RTE Act on 26.08.2009, two notifications were issued on16.02.2010. Under the first notification, the provisions of Article 21Awere directed to come into force on 01.04.2010 while under the secondnotification the provisions of the RTE Act were directed to come intoforce on 01.04.2010. These developments indicate that though theConstitutional Amendment Act was passed in the year 2002, period ofalmost 8 years was given to the States to gear themselves up and copeup with the obligations which were to be discharged in terms of Article21A read with the provisions of RTE Act. He emphasised that the ideaof free and compulsory education first germinated in the decision inUnni Krishnan, J.P. and others vs. State of Andhra Pradesh andothers[43], which was later recommended in 165[th] Law CommissionReport. The States thus had enough time at their disposal to equipthemselves adequately to cope up with the obligations as aforesaid. Hefurther submitted that under various enactments namely National FoodSecurity Act, 2013, Juvenile Justice Act, 2015, Mahatma Gandhi NationalRural Employment Guarantee Act, 2005. Child and Adolescent Labour(Prevention and Regulation) Act, 1986, separate funds are constitutedand if budgetary constraints is the reason, mandamus on the lines thatwas issued by this Court in M.C. Mehta vs. State of T.N. and others[44],could be issued. He also invited attention of the Court to the report ofthe Controller and Auditor General which indicated that substantial sumswere collected as primary education cess and higher and secondaryeducation cess. The information in that behalf available in para 2.3.3 ofthe Report of CAG for the year 2016-17 was as under:

“2.3.3 Secondary and Higher Education Cess

40 (1992) 2 SCC 29

41 1995 Supp (4) SCC 111

42 (2018) 13 SCC 560

43 (1993) 1 SCC 645

44 (1996) 6 SCC 756 para 29

AThe Secondary and Higher Education Cess (SHEC) wasintroduced in the Finance Act, 2007, to fulfil the commitment ofSecondary and Higher Education.

Scrutiny of the Union Finance Accounts for the period 2006-07 to2016-17 revealed that total collection of SHEC of ¹ 83,497 coreBhas been made and is being credited in the CFI without creatingany reserve fund in Public Account.

Unlike the creation of Prarambhik Siksha Kosh in the case ofprimary/elementary education cess, for the SHEC neither Fundwas designated to deposit the proceeds of SHEC nor wereCschemes identified on which the cess proceeds were to be spent.Consequently, the commitment of furthering Secondary and HigherEducation Cess as envisaged in the Finance Act was nottransparently ascertainable.

The matter of non-creation of Fund and non-dentification ofDschemes was raised in previous years’ Report but the trend ispersistent.”

He also relied upon decision of this Court in Secretary, State ofKarnataka and others vs. Umadevi (3) and others[45](para 55).

39. Mr. Salman Khurshid, learned Senior Advocate submitted thatEthe content of Right under Article 21A of the Constitution would bemeaningless unless the role of teacher was not considered in properperspective. For child to be given good quality education, the teachersmust be well qualified and ensured decent wages. In his submission thatwould be the true import of Rule 20(3) of 2010 Rules and it was theresponsibility of State to garner resources. He relied upon extractsFfrom book[46] and particularly paragraphs 5 and 6 captioned “PublicExpenditure and Education Policy”. The relevant extract which wasrelied upon was:-

“While the development of low-cost schooling facilities has helpedto expand the reach of elementary education in spite of widespreadGbudgetary crises at the state level, gaping inadequacies remain(both in quantitative and qualitative terms) in the schoolinginfrastructure, as the findings mentioned in the preceding section

45 (2006) 4 SCC 1H46 [“India – Development and Participation” by Jean Dreze and Amartya Sen]

indicate. Further, the trend towards increasing reliance on second-track education facilities has some troubling features. At leastthree serious issues arise in this context, related respectively toquality, equity and sustainability.

The quality issue is concerned with the fact that teacherqualifications and infrastructural facilities are often poorer insecond-track schooling facilities than in regular schools. In somecases there are also compensating features, especially greateraccountability (e.g. due to better work incentives or closercommunity involvement), but the question remains whether thesefacilities can really be expected to deliver education of acceptablequality.

The equity issue follows from that concern: if ‘second-track’ means‘second-rate’, the expansion of alternative schooling facilitiesinvolves real danger of diluting the right of underprivilegedchildren to quality education. While these facilities might helpthem in the short term, this might be done at the risk of perpetuatingthe deep inequities of India’s schooling system, whereby childrenof different social backgrounds have vastly different educationalopportunities (not only in terms of the divide between governmentand private schools but now also within the framework ofgovernment schools.”40. Ms. Vibha Datta Makhija, learned Senior Advocate placedcomparative chart of salary and emoluments drawn by Niyojit Teachersas against Government Teachers at various levels. She submitted thatthe introduction of Article 21A in the Constitution was not an exercisedone overnight but considerable thought process had gone into, in makingsuch Right reality. Even after the introduction of Article 21A, substantialperiod of eight years was afforded to the States to equip themselves onevery front. In her submission, Sections 23 and 25 of the Act ensurequalitative and quantitative aspects and if both the aspects are takentogether it would be inevitable that the teachers must be in adequatenumbers and also must have decent wages. According to her, therewere three sets of guarantees available to Niyojit Teachers. First, underArticle 41 of the Constitution, the second under Article 14 of theConstitution and the third under the provisions of the RTE Act, on thebasis of which the Niyojit Teachers could rightfully claim parity in salary

Aand emoluments. She relied upon the Report of the FinanceCommission[47], the relevant portion being:-

“12.190… ….The MHRD estimations have assumed minimumsalary of Rs.5000 per month for primary teachers and Rs.7000per month for upper primary teachers. There is no uniform patternin the manner of appointment and pay scales of SSA teachersacross states. In some states such teachers are appointed by theState Government on regular pay scales, whereas in many others,such teachers are appointed by local governments on local bodypay scales or on contract. The implementation of the Sixth CentralPay Commission (CPC) would, in any event, create an upwardpressure on teachers’ salaries, whatever the mode of appointment.We have, therefore, assumed an increase of 30 per cent over thebase year, in view of the fact that the bulk of these teachers arelocated in rural areas. We have also provided for an annualincrease of 6% on these salaries, in conformity with our assumptionof the post-CPC yearly increase in salaries of governmentservants. Similarly, while SSA does not provide for any annualincrease in the quantum of funds on account of inflation, we haveprovided for an annual increase of 5 per cent across all non-salarycomponents of the scheme.

12.20 The SSA began with matching fund requirement of 15per cent from states in 2001-02. Till 2006-07, the matching fundrequirement was 25 per cent. It has increased progressively to35 per cent in 2007-08 and 2008-09 and to 40 per cent in 2009-10.It is expected to go up to 45 per cent in 2010-11 and to 50 per centin 2011-12, the terminal year of the Eleventh Five Year Plan. Weassume that the same ratio will continue in the remaining years ofthe award period. Various states have expressed difficulties inproviding this matching share, especially since the size of theirannual plans has increased over the years.

12.21 We are of the view that, in the given circumstancesaugmenting the resources of the states to cater to this need willbe the most appropriate way to provide grants for the elementaryeducation sector. This will also provide some fiscal space to thestates to meet part of the additional resources required toimplement the RTE Act. We have also considered the fact that

H47 13th Finance Commission, for 2010-15 published in 2009

given the resource scarcity faced by the states as result of theeconomic slowdown, several states have not been able to providefor their share of 40 per cent in 2009-10. In fact, we estimatethat due to the adverse fallout of the economic downturn, thestates may not be able to provide more than 35 per cent fromtheir resources over the current year and the next year. Hence,we recommend for the award period, grant of 15 per cent of theestimated SSA expenditure of each state. This amount will coverthe difference between the targeted state share of 50 per cent bythe terminal year of the Eleventh Plan and the contribution requiredto be made in 2008-09, i.e. 35 per cent of the individual states’SSA share.

12.22 The north-eastern states are required to provide only 10per cent from their resources as their share for SSA. However,as the MHRD has pointed out in supplementary memorandum,several of these states have not been able to provide even thisamount, leading to slowdown in implementation of SSA. In orderto alleviate the fiscal constraints of these states we recommend agrant amounting to the difference between the average amountcontributed by each state in the years 2007-08 and 2008-09 andthe amount they need to contribute (on the basis of 10 per centshare) in each of the five years of the award period, subject to aminimum of Rs.5 crore per year. The requirement of the north-eastern states, calculated on this basis, is Rs.367 crore over aperiod of five years.

12.23 The recommended grant for elementary education for allthese states, in aggregate, works out to Rs.24,068 crore. Thestate-wise and year wise allocations are given in Annex 12.1. Inorder to ensure that these grants do not substitute for the currentexpenditure of states, we stipulate that the expenditure (plan +non plan) under elementary education, i.e. major head 2202, sub-major head-01, exclusive of the grants recommended herein, shouldgrow by at least 8 per cent, the assumed growth rate in ourprojections of the non-salary component of the social sector duringthe award period, annually, during 2010-15.”

Ms. Makhija then submitted that there had been three categoriesof teachers in the State, first category being that of regular teacherswho are getting salary and emoluments at government pay scale. The

Asecond category was that of Shiksha Mitras who were inducted underCentral Schemes since 2002. The third category of teachers are thosewho were inducted in terms of 2006 Rules. The second category asstated above, now stands merged in the last category and are collectivelyknown as Niyojit Teachers. She relied upon decisions in State of Gujaratand Another vs. Raman Lal Keshav Lal Soni and Others[48], State ofBU.P. and Others vs. Chandra Prakash Pandey and Others[49], ShayaraBano vs. Union of India and Others[50], E. P Royappa vs. State ofTamil Nadu and Another[51].

Ms. Makhija also submitted that the distinction drawn by the learnedAttorney General was artificial and without any nexus to the object.CShe further submitted that the State cannot let disparity continue andperpetuate inequality.

41. Mr. P. Chidambaram, learned Senior Advocate stressed onthe content of the right under Article 21A and submitted that the emphasismust be on good quality education. He submitted that under Section 26Dof the RTE Act, the vacancy position of teachers could not be more than10% and as such the teachers had to be appointed in adequate numbersto match the Pupil-Teacher ratio as prescribed and it would not be properon part of the State to put up an excuse of budgetary constraints. Hefurther stated that under Section 28 of the Act, teacher would not beEallowed to engage himself in private teaching activity. He relied uponState of Punjab and Others vs. Jagjit Singh and Others[2], HussainaraKhatoon and Others (IV) vs. Home Secretary, State of Bihar, Patna[52],Khatri and Others (II) vs. State of Bihar and Others[53], Ashoka KumarThakur vs. Union of India and Others[38] and Brij Mohan Lal vs.Union of India and Others[54]. Lastly, he urged that the right underFArticle 21A ought to be made meaningful.

42. Dr. A. M. Singhvi, learned Senior Advocate appeared on behalfof Bihar Madhyamik Shikshan Sangh representing those teaching classesIX onwards. According to him, the total liability in terms of the decisionrendered by the High Court in the present matter was in the range or

G48 (1983) 2 SCC 3349 (2001) 4 SCC 78 para 1050 (2017) 9 SCC 151 (1974) 4 SCC 3 para 8552 (1980) 1 SCC 98 para 10

53 (1981) 1 SCC 627 para 5H54 (2012) 6 SCC 502 paras 137 to 144

Rs.9283.69 Crores out of which the share allocable to the CentralGovernment would be Rs.4599.07 crores and that of the StateGovernment would be Rs.4684.63 crores. In Note presented by him,the aspect that Niyojit Teachers were performing same/similar dutiesand responsibilities was highlighted as under:-

“i) It is admitted fact that these Niyojit teachers are dischargingsame/similar duty and responsibility as discharged by the Regularteachers of Pre-2006 Rules. The impugned order has dealt it indetail and returned important finding on this issue in favour ofthese teachers at more than one place.

ii) These Niyojit teachers are imparting education to the samestudents, with same syllabus in the same school apart form doingthe same evaluation work in secondary and +2 examinationconducted by the Bihar School Examination Board. At the timeof evaluation, they are treated at par with and paid the sameremuneration like the teachers appointed prior to 2006 Rules.

iii) Moreover, these Niyojit teachers are also engaged by the Statelike Regular teachers in duties like duty for preparation of census(economic survey), Election duty from preparation of voter list tillcounting of votes. Interestingly, while informing the ElectionCommission with regard to deploying these teachers on electionduty, the State treats these Niyojit teachers as Regular teachers.

iv) These teachers like regular teachers are also engaged inimparting Special training namely ‘Diploma in Elementary Training’provided by National Institute of Open Schooling (NIOS) Board,under Union of India, which is an on-going programme, whereinin selected school of each district, Study Centre is opened toimpart training. In these programmes these Niyojit teachers workas Coordinator, Assistant Co-ordinator, resource persons andSupervisors. Importantly, sometimes, when the minimum requiredqualification like MA/M.SC/B.Ed./M.Ed. is not found in the regularteacher, then Niyojit teachers with such qualifications are madeCo-ordinator in place of regular teachers in that Study Centre.

v) Many of these Niyojit teachers are chosen as Master Trainers,who are responsible for imparting training to both category ofteachers i.e. Niyojit Teachers and Regular Teachers. Pertinently,this training is conducted/organised by State Council of Educational

AResearch and Training, Government of Bihar (SCERT similar toNCERT).

vi) Furthermore, such in-service training is part of continuousprocess which includes preparation of Syllabus, Curriculum andinnovative teaching method as well as these Niyojit teachers areBalso given responsibility of writing text books for students formclass I to class XII under the command of SCERT.

vii) These Niyojit teachers are also engaged in setting of questionpapers, moderating, evaluating the answer sheets etc., at par withthe regular teachers on equal remuneration.

viii) Responsibility of Acting Principals in substantial number ofthe Secondary and Higher Secondary schools are performed bythese Niyojit teachers. Kindly see list of secondary and highersecondary schools wherein these Niyojit teachers are working asActing Principal, however, receiving the salary of Niyojit teachers.”

It was his submission that the cases decided by this Court on thetouchstone of Article 14 of the Constitution consistently show that iffunctionally the duties performed by the class seeking parity are sameor identical, unless required qualifications were higher, the equalitydoctrine must apply and in such cases the source of employment wouldEbe irrelevant. He also relied upon the statistics to show that as many as1459 Niyojit Teachers were acting as Head Masters in Higher SecondarySchools in the State. By way of an example, he further submitted detailsfrom Anugrah Kanya S.S.S, Gaya in which six Government Teachersand three non-teaching staff were on the roles while 22 Niyojit Teacherswere working in the same school. All Government Teachers and theFnon-teaching staff were drawing pay higher than what was paid to eachof those Niyojit Teachers.

He also submitted that with effect from 3[rd] July, 2012, under theRules framed by State of Bihar, it was obligatory for every teacherteaching classes IX onwards to have TET qualification and all NiyojitGTeachers teaching such classes were equipped with said qualification.Responding to the submission that the category of Government Teacherswho was taken to be dying or finishing cadre, he submitted that nosuch policy was discernible from any statutory provision. He reliedupon decisions of this Court in State of Gujarat and Another vs. Raman

Lal Keshav Lal Soni and Others[48] and Arindam Chattopadhyay andOthers vs. State of West Bengal and Others[55].

43. Mr. C. S. Vaidyanathan, learned Senior Advocate alsorepresenting teachers teaching classes IX onwards submitted that twoissues had been raised on behalf of the State whether there could beequality with dying or vanishing cadre and whether on the grounds offinancial constraints the State was justified in not affording same payand emoluments to Niyojit Teachers. He reiterated that both thecategories of teachers were performing same or similar functions. Herelied upon an Article “Perceptions on Getting Children to Schools –Before and After RTE Act”[56].

44. Shri Ranjit Kumar, learned Senior Advocate appeared on behalfof Secondary and Higher Secondary teachers teaching classes IXthonwards. He also stressed the point that there was complete functionalequality in every respect as regards duties and responsibilities betweenGovernment Teachers on one hand and Niyojit Teachers on the other. Itwas his submission that though under 2006 Rules, Panchayats andMunicipal Bodies were entrusted with the task of selecting teachers, inreality the Committees constituted for the purpose comprised of allgovernment officials and the State Government was in real and effectivecontrol of the situation. He relied upon the decisions of this Court inBihar State Government Secondary School Teachers Associationvs. Bihar Education Service Association and others[57] particularlyon para 50.45. Shri Ananda Nandan, learned Advocate appeared on behalfof Niyojit Teachers who were appointed after 2012. It was submittedby him that such teachers who were duly qualified and had passed TETexamination alone be considered to be entitled to parity with GovernmentTeachers and those who did not have the requisite qualifications and hadnot passed TET examination ought not to be afforded same treatment.In his submission that would be the true import of the idea of makingquality education available to the children in terms of the RTE Act. Healso relied upon decision of this Court in State of Uttar Pradesh andothers vs. Shiv Kumar Pathak and others[58].

55 (2013) 4 SCC 152 para 5 and 13

56 By Shantha Sinha, Department of Political Science, University of Hyderabad

57 (2012) 13 SCC 33

58 (2018) 12 SCC 595

A46. Mr. V. Shekhar, learned Senior Advocate appeared on behalfof some primary school teachers and Parivartankaari Teachers MahaSangh. He relied upon the decisions of this Court in Municipal Council,Ratlam vs. Shri Vardichand and others[59], Secretary and MahatamaGandhi Mission and another vs. Bhartiya Kamgar Sena andothers[60](paragraphs 82 to 90 and 95).B

47. Mr. Prashant Bhushan, learned Advocate appearing for someof the primary teachers submitted that those teachers having TETqualifications, were regularly selected by local authorities and though,the method of recruitment may be different, they were doing the samework as was being discharged by other Government Teachers. TheirCqualifications were identical and in terms of mandate of Rule 20(3) of2010 Rules, they were entitled to pay and allowances at par with theGovernment Teachers.

48. Mr. Rajiv Dhawan, learned Senior Advocate appearing forcertain secondary and primary teachers submitted that the statutoryDprovisions including 2006 Rules clearly showed the all-pervasive role ofthe State Government which had created these artificial distinctions andcategories and the Panchayats were simply implementing what the Statehad decided. In his submission the basic issues were whether therecould be any discretion unto the State in matters concerning constitutionalEmandate and whether financial constraints could be taken as validexcuse. He reiterated the submission that under Section 7 of the RTEAct there was concurrent financial responsibility on the StateGovernment as well as the Central Government. Adverting to the draftNotes which were placed before the Cabinet on 25.06.2006, he submittedthat the entire mechanics was about financial arrangement and thereFwas nothing such as financial constraints upon the State. He relied upondecisions of this Court in Mohini Jain vs. State of Karnataka andothers[61], Unni Krishnan, J.P. and others vs. State of Andhra Pradeshand others[43]and State of Himachal Pradesh vs. H.P. State Recognised& Aided Schools Managing Committees and others[62]

G49. Mr. Sanjay Hegde, learned Senior Advocate appearing forsome of the primary teachers submitted that as it is the income of

59 (1980) 4 SCC 16260 (2017) 4 SCC 44961 (1992) 3 SCC 666H62 (1995) 4 SCC 507

teacher has always been limited one and the attempt on part of theState was to restrict it further. Relying on Workmen represented bySecretary vs. Reptakos Brett. & Co. Limited and another[63]it wassubmitted that the teachers must be ensured living wages and that theNiyojit Teachers were entitled to the salary and emoluments as weremade available to Government Teachers. He also relied upon decisionsof this Court in Municipal Council, Ratlam vs. Shri Vardichand andothers[59] and Chandigarh Administration and others vs. Rajni Valiand others[64].50. Mr. B.P. Verma, learned Senior Advocate appeared on behalfof certain teachers seeking impleadment and relied upon the decision ofthis Court in Secretary, State of Karnataka and others vs. Umadevi(3) and others[45](para 55), while Mr. V.N. Sinha, learned SeniorAdvocate for some primary and secondary teachers as well as librariansrelied upon decision of this Court in Maneka Gandhi vs. Union ofIndia and another[65]to submit that there ought to be reasonableness inevery action of the State. Adopting the submissions made by all theother learned counsel, it was submitted by them that Niyojit Teacherswere entitled to same salaries and emoluments as were given toGovernment Teachers.

51. In rejoinder, it was submitted by Mr. Dinesh Dwivedi, learnedSenior Advocate that conscious decision was taken not to make anyfurther appointments in the cadre of Government Teachers and but forone-time appointment which was done pursuant to orders passed by theHigh Court and this Court, the strength of Government Teachers wouldhave been considerably lower. The State could as well have abolishedall the posts held by Government Teachers after giving them requisitecompensation and in the process could have ensured one single cadre ofNiyojit Teachers. The attempt to compare huge body of NiyojitTeachers which was more than 4.50 lakhs and seek parity with groupwhich was dying or vanishing cadre was not correct. He submittedthat there was no basis to claim that the quality of education would becompromised if Niyojit Teachers were not paid same salary as wasgiven to Government Teachers. The decisions of this Court in State ofPunjab vs. Joginder Singh[28] and in Zabar Singh and others vs. State

63 (1992) 1 SCC 290

64 (2000) 2 SCC 42

65 (1978) 1 SCC 248

Aof Haryana and others[29], S.C. Chandra and others vs. State ofJharkhand and others[11], State of Haryana vs. Charanjit Singh[4] andState of Haryana and another vs. Tilak Raj and others[66]were heavilyrelied upon by Mr. Dwivedi. It was submitted that the decision in Stateof Punjab and others vs. Jagjit Singh and others[2]did not notice theearlier decisions of this Court in State of Punjab vs. Joginder Singh[28]Band in Zabar Singh and others vs. State of Haryana and others[29]. Itwas submitted that the decision in State of Punjab vs. Joginder Singh[28]had clearly laid down that the principle of ‘equal pay for equal work’was not deducible from Article 14 of the Constitution. Reliance wasalso placed on Section 2(n) of the RTE Act and the expression ‘controlledCby the appropriate government or local body’ to submit that it wassufficient indication that new kind of service could be put in place by theappropriate government. He submitted that the Right under Article 21Aof the Constitution was child-centric and claim could not be based bythe Niyojit Teachers on the basis of such Right to claim parity as was

sought to be done. Reliance was placed on the decisions of this Court inDAll India Bank Employees’ Association vs. National IndustrialTribunal and others[67], Society for Unaided Private Schools ofRajasthan vs. Union of India and another[39].

52. Mr. Shyam Divan, learned Senior Advocate, in rejoinder, reliedupon the judgment of Constitution Bench of this Court in Navtej SinghEJohar and others vs. Union of India through Secretary, Ministry ofLaw and Justice[68]and paragraphs 95, 96, 104, 110, 118 and 119 thereof.In his submission, progressive realisation of rights would require certainamount of balancing and adjustment. If the matter was to be consideredfrom the standpoint of child, the school system ought to be of such orderFwhich helps realisation of such Right but, at the same time there oughtnot to be any negative impact on the dignity of any other individual.Considering these two ideas, if the endeavour adopted by the State wasto subserve goals set by Article 21A, the attempts in that behalf wouldbe perfectly constitutional as long as dignity of any other individual wasnot compromised. According to him, the two competing visions whichGwere pressed into service in the present matter were (i) on behalf ofNiyojit Teachers which visualised perspective from the standpoint ofindividual teachers which was “me first” approach, whereas, what the66 (2003) 6 SCC 123

67 (1962) 3 SCR 269 = AIR 1962 SC 171H68 (2018) 10 SCC 1

State was emphasising was community right and to achieve and tosubserve the societal needs which could be categorised as “we first”approach. Both could be valid visions but while considering whichchoice would be the most appropriate one, it would require policy decisionswhich, by very nature could be complex. The policy decisions on thepoint would be completely linked to social issues and economy and healthof the society. These issues as well as vision in that behalf ought to beleft to the State. He further submitted that the various factual detailspresented by the State would show great impact of its policies and thetremendous strides the State had undertaken in that behalf. He reliedupon decisions of this Court in Acharya Maharajshri NarendraPrasadji Anandprasadji Maharaj and others vs. The State ofGujarat and others[69](para 31), Assam Sanmilita Mahasangha andothers vs. Union of India and others[70](para 33) and SubramanianSwamy vs. Union of India, Ministry of Law and others[71].

53. With the permission of the Court, Mr. Sibal, Mr. Sundaram,Mr. Vijay Hansaria and Mr. Ranjit Kumar, learned Senior Advocatesresponded to the submissions made in rejoinder. It was submitted thatthe very premise that the schools were managed by local authoritieswas wrong; they were taken over and owned by the State. It wassubmitted that the concept of ‘equal pay for equal work’ was afundamental doctrine though may not strictly be Fundamental Right.Mr. Hansaria submitted list of at least 40 cases where doctrine of‘equal pay for equal work’ was adopted without noticing the decisionsof this Court in State of Punjab vs. Joginder Singh[28] and in ZabarSingh and others vs. State of Haryana and others[29].

It was also submitted that as against the funds which were madeavailable for various Central Schemes, about Rs.1802 crores were lyingunspent and as such the budgetary constraints could not be an argument.By extending schools and educational facilities to every nook and cornerof the State or in every neighbourhood the State was not doing anycharity but was discharging its constitutional obligations and as such,budgetary constraints could never be ground.

54. Having heard the learned counsel extensively, who took usthrough all the relevant material on record and placed before us various

69 (1975) 1 SCC 1170 (2015) 3 SCC 171 (2016) 7 SCC 221

Acontours of the issues before us, the basic questions that arise for ourconsideration are:-

a)Whether the Niyojit Teachers are right in their submissionthat they are entitled to and were rightly granted ‘equal payfor equal work’; and

b)Whether the State is justified in its approach and is right inclaiming that the distinction made by it was correct and fair.

These questions, according to us, go to the root of the matter.While answering these questions, we may also consider various facetsto the issues as presented by various counsel, including the effect of theCprovisions of the RTE Act.

55. According to the learned counsel appearing for the State, thematter has to be seen in the backdrop of what the State was confrontedwith around the year 2001-2002 and what it has, over the last few years,been able to achieve as result of steps taken by the State including theDappointment of Niyojit Teachers and creation of separate cadre ofNiyojit Teachers. According to the State, on one hand it had decided tolet the original cadre of Government Teachers to be cadre without anyfresh appointments and thus let it be dying or vanishing cadre, while onthe other hand it had decided that substantial number of teachers beEappointed at Panchayat levels.56. At the outset we must note that though the 86[th] ConstitutionAmendment Act was passed in the year 2002, the Article was broughtinto force on 1.4.2010 i.e. at least after eight years. It is also matter ofrecord that the RTE Act which was, all the while in contemplation, wasenacted in the year 2009 and was also brought into force on 1.4.2010.FThe developments in that behalf including the historical backgroundleading to the introduction of Article 21A and the enactment of the RTEAct were dealt with in extenso in paragraphs 441 to 461 in the opinion ofBhandari, J in Ashoka Kumar Thakur vs. Union of India[38]. We,therefore, have to see how the State had conducted itself and whetherGthe steps taken by the State were in order to discharge its obligations.

In the year 2002 itself, Scheme known as Sarva Shiksha Abhiyanwas introduced at the Central level. In terms of the Scheme, the facilitiesof education and infrastructure were required to be spread through thelength and breadth of the respective States. The steps taken in thatHbehalf, specially in the present matter, indicate that sometime in 2002

more than one lakh Shiksha Mitras were appointed by the State. TheseShiksha Mitras were not part of the regular cadre of GovernmentTeachers, were not appointed through the regular process of selectionand their services were engaged on fixed salary. These Shiksha Mitras,who were outside the regular cadre of teachers, were entrusted withthe job of manning schools in the remotest corners of the State. Sometimein 2006, certain decisions were taken by the Cabinet of Ministers,Government of Bihar. The control in respect of appointment of teachersin all nationalized schools and other aspects, which were hithertobeforewith the State Government, were given over to various Panchayat Rajinstitutions. This was in conformity with Articles 243G read with SerialNo. 17 of the Eleventh Schedule in respect of Panchayats at the village,intermediate and at district levels and also in terms of Article 243W readwith Serial No.13 of the Twelfth Schedule in respect of NagarPanchayats, Municipal Councils or Municipal Corporations. The decisionstaken by the Cabinet were in accord with the constitutional mandate ofenabling Panchayat Raj Systems on one hand while on the other, thedecision also raised the number of teachers substantially so that nationalparameters on student:teacher ratio could be achieved by the State. Thestatistics placed on record show that about 12% children in the Statewho were outside the schools had to be brought within the stream ofeducation. The decision discernible from the Cabinet Notes was toachieve these objectives. After the decision of the Cabinet, the idea wastranslated in an appropriate statutory regime and new set of Rules viz.2016 Rules were put in place. decision was taken that there would beno further appointments in the cadre of existing teachers viz. GovernmentTeachers and completely new cadre of teachers named Niyojit Teacherswas created. The erstwhile Shiksha Mitras were absorbed in this newcadre of Niyojit Teacher and fresh employments were made at Panchayat/Block levels so that teachers in sufficient numbers could be appointed.The developments indicate that presently about four lakh such teachershave been appointed and the statistics presented by the State, which arereflected in detail in abovenoted paragraph 31, show the advances madeby the State in that behalf. It was submitted that the State could thusachieve substantial improvement in the enrolment of students and theresults have also seen appreciable rise in literacy rate in the last decadein respect of the State.

57. We are thus having situation where the decisions taken bythe State as submitted on its behalf, were guided by public interest and

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Asocietal commitment. The idea to achieve spread of education to themaximum level was attained and in the process the State had, to greatextent, tried to meet with the obligations that it was required to dischargeunder the provisions of Article 21A read with the RTE Act. What hashowever been projected on behalf of Niyojit Teachers is that whileachieving these objectives, the State ought not to have discriminatedBagainst the Niyojit Teachers and should have extended fair treatment tothem by ensuring ‘equal pay for equal work’. The arguments on behalfof State are that the first objective that had to be accomplished was tohave the reach and spread of education to every nook and corner of theState and to satisfy the requirements of having schools and facilities inCevery neighbourhood as contemplated by the provisions of the RTE Act;and having achieved that objective, the State is now seeking to improvethe service conditions and emoluments of the Niyojit Teachers. Whattherefore emerges is whether the actions on part of the State werejustified or whether the Niyojit Teachers are right in their submissionthat they are entitled to ‘equal pay for equal work’.D

58. Before we consider the rival submissions in connection withthis issue, it must be mentioned that the cadre of Government Teacherswith which parity or equality has been sought is dying or vanishingcadre. conscious decision was taken by the State not to make anyappointments in this cadre of Government Teachers and post 2006, withEthe exception as narrated hereinabove in paragraph 17, all appointmentsin the State have been in terms of and under the provisions of 2006Rules. The statistics also show that presently there are about 57,293elementary teachers in the cadre of Government Teachers and 7,800Government Teachers at the secondary level which means there areFabout 66,000 government teachers in the State as against nearly 4 lakhNiyojit Teachers in the State. It is this group of 4 lakhs which is seekingparity with number which is less than 1/5[th] and by very nature which isa dying and vanishing cadre. Out of those 66,000 more than 31,000were those who came to be appointed as one-time exception. Leavingaside that issue, the fact remains that it is larger body of more than 4Glakhs which is seeking parity with dying or vanishing cadre.

59. In order to consider the applicability of the doctrine of ‘equalpay for equal work’, one of the fundamental aspects to be considered isnature of duties. As was rightly submitted by Mr. Kabil Sibal and Dr.A.M. Singhvi, learned Senior Advocates, the nature of duties performedH

by Niyojit Teachers are certainly same or similar to those performed bythe Government Teachers. As matter of fact, both the sets of teachersare teaching in the same school and teaching same syllabus. The pointersplaced by Dr. Singhvi in his submission as well as the example given byhim evidently show that there is no distinction or difference as regardsnature of duties performed and responsibilities discharged by the NiyojitTeachers. Some of the Niyojit Teachers have also been acting asHeadmasters. However, the Rules in question viz. 2006 Rules clearlyindicate that the method of recruitment of Niyojit Teachers wascompletely different from the one under which Government Teacherswere recruited. The Selection Committee contemplated under theprovisions of 2006 Rules comprised of officials at the Panchayat or Blocklevels. The selection was also at local levels and not through BiharPublic Service Commission or Schools Selection Board. The distinctionbrought out in that behalf by the State in para 13 of its supplementarycounter affidavit filed in the High Court clearly shows the difference inmode of recruitment. It is thus clear that the mode of recruitment andthe standards of selection were different but the nature of dutiesperformed by the Niyojit Teachers have been absolutely identical. Couldthere be distinction between these two streams of teachers. We may,therefore, at this stage see the development of the doctrine of ‘equalpay for equal work’ and whether it admits of any qualifications orexceptions.

60. In Kishori Mohanlal Bakshi vs. Union of India[72] theIncome Tax Officers were divided into two categories and Class-IIncome Tax Officers alone were entitled to be considered for promotionto the posts of Commissioners and Assistant Commissioners. Therecould be no such direct promotion from amongst officers who wereIncome Tax Officers Class-II. The submission that this was violative ofArticle 16(1) of the Constitution was rejected. Further submission wasthat both the categories were doing same kind of work but their pay-scales were different and as such the doctrine of ‘equal pay for equalwork’ stood violated. While considering said submission, the ConstitutionBench stated:-

“3. The only other contention raised is that there is discriminationbetween class I and Class I Officers inasmuch as though they dothe same kind of work their pay-scales are different. This, it is

72 AIR 1962 SC 1139

Asaid, violates article 14 of the Constitution. If this contention hadany validity, there could be no incremental scales of pay fixeddependent on the duration of an officer’s service. The abstractdoctrine of equal pay for equal work has nothing to do with article14. The contention that article 14 of the constitution has beenviolated therefore also fails.”

61. Almost 20 years later, the doctrine of ‘equal pay for equalwork’ was accepted by this Court in Randhir Singh vs. Union ofIndia and others[31]. Bench of three Judges stated that though theprinciple of ‘equal pay for equal work’ had not expressly been declaredby the Constitution to be Fundamental Right, it was certainly aCconstitutional goal. The discussion was as under:-

“7. Our attention was drawn to Binoy Kumar Mukerjee v. Unionof India ILR (1973) 1 Del 427 and Makhan Singh v. Union ofIndia ILR (1975) 1 Del 227, where reference was made to theobservations of this Court in Kishori Mohanlal Bakshi v. Unionof India AIR 1962 SC 1139 describing the principle of “equal payfor equal work” as an abstract doctrine which had nothing to dowith Article 14. We shall presently point out how the principle,“equal pay for equal work”, is not an abstract doctrine but one ofsubstance. Kishori Mohanlal Bakshi v. Union of lndia AIR1962 SC 1139 is not itself of any real assistance to us since whatwas decided there was that there could be different scales of payfor different grades of service. It is well known that there canbe and there are different grades in service, with varyingqualifications for entry into particular grade, the higher gradeoften being promotional avenue for officers of the lower grade.The higher qualifications for the higher grade, which may be eitheracademic qualifications or experience based on length of service,reasonably sustain the classification of the officers into two gradeswith different scales of pay. The principle of “equal pay for equalwork” would be an abstract doctrine not attracting Article 14 ifsought to be applied to them.

8. It is true that the principle of “equal pay for equal work” is notexpressly declared by our Constitution to be fundamental right.But it certainly is constitutional goal. Article 39(d) of theConstitution proclaims “equal pay for equal work for both menand women” as directive principle of State Policy. “Equal pay

for equal work for both men and women” means equal pay forequal work for everyone and as between the sexes. directiveprinciples, as has been pointed out in some of the judgments ofthis Court have to be read into the fundamental rights as matterof interpretation. Article 14 of the Constitution enjoins the Statenot to deny any person equality before the law or the equalprotection of the laws and Article 16 declares that there shall beequality of opportunity for all citizens in matters relating toemployment or appointment to any office under the State. Theseequality clauses of the Constitution must mean something toeveryone. To the vast majority of the people the equality clausesof the Constitution would mean nothing if they are unconcernedwith the work they do and the pay they get. To them the equalityclauses will have some substance if equal work means equal pay.Whether the special procedure prescribed by statute for tryingalleged robber-barons and smuggler kings or for dealing with taxevaders is discriminatory, whether particular governmental policyin the matter of grant of licences or permits confers unfettereddiscretion on the Executive, whether the take-over of the empiresof industrial tycoons is arbitrary and unconstitutional and otherquestions of like nature, leave the millions of people of this countryuntouched. Questions concerning wages and the like, mundanethey may be, are yet matters of vital concern to them and it isthere, if at all that the equality clauses of the Constitution haveany significance to them. The Preamble to the Constitution declaresthe solemn resolution of the people of India to constitute India intoa Sovereign Socialist Democratic Republic. Again the word“socialist” must mean something. Even if it does not mean ‘toeach according to his need’, it must at least mean “equal pay forequal work”. “The principle of “equal pay for equal work” isexpressly recognized by all socialist systems of law, e.g., Section59 of the Hungarian Labour Code, para 2 of Section 111 of theCzechoslovak Code, Section 67 of the Bulgarian Code, Section40 of the Code of the German Democratic Republic, para 2 ofSection 33 of the Rumanian Code. Indeed this principle has beenincorporated in several western Labour Codes too. Underprovisions in Section 31 (g. No. 2d) of Book I of the French Codedu Travail, and according to Argentinian law, this principle mustbe applied to female workers in all collective bargaining

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agreements. In accordance with Section 3 of the Grundgesetz ofthe German Federal Republic, and Clause 7, Section 123 of theMexican Constitution, the principle is given universal significance”(vide International Labour Law by Istvan Szaszy, p. 265). ThePreamble to the Constitution of the International LabourOrganisation recognises the principle of ‘equal remuneration forwork of equal value’ as constituting one of the means of achievingthe improvement of conditions “involving such injustice, hardshipand privation to large numbers of people as to produce unrest sogreat that the peace and harmony of the world are imperilled”.Construing Articles 14 and 16 in the light of the Preamble andArticle 39 (d), we are of the view that the principle “equal pay forequal work” is deducible from those Articles and may be properlyapplied to cases of unequal scales of pay based on no classificationor irrational classification though those drawing the different scalesof pay do identical work under the same employer.9. There cannot be the slightest doubt that the drivers in the DelhiPolice Force perform the same functions and duties as other driversin service of the Delhi Administration and the Central Government.If anything, by reason of their investiture with the “powers,functions and privileges of police officer”, their duties andresponsibilities are more arduous. In answer to the allegation inthe petition that the driver-constables of the Delhi Police Forceperform no less arduous duties than drivers in other departments,it was admitted by the respondents in their counter that the dutiesof the driver-constables of the Delhi Police Force were onerous.What then is the reason for giving them lower scale of pay thanothers? There is none. The only answer of the respondents is thatthe drivers of the Delhi Police Force and the other drivers belongto different departments and that the principle of “equal pay forequal work” is not principle which the courts may recogniseand act upon. We have shown that the answer is unsound. Theclarification is irrational. We, therefore, allow the writ petition anddirect the respondents to fix the scale of pay of the petitioner andthe driver-constables of the Delhi Police Force at least on parwith that of the drivers of the Railway Protection Force. Thescale of pay shall be effective from January 1, 1973, the datefrom which the recommendations of the Pay Commission weregiven effect.”

62. Post Randhir Singh[31], there have been number of decisionsrendered by this Court and instead of looking into and considering everysingle decision on the point, we may consider those decisions whichthemselves had taken into account all the earlier decisions and thenconsidered if there are any limitations or qualifications to the doctrine of‘equal pay for equal work’.

63. In State of Haryana and others vs. Charanjit Singh andothers[4]a Bench of three Judges of this Court, speaking through Variava,J. observed as under:-

“19. Having considered the authorities and the submissions weare of the view that the authorities in the cases of Jasmer Singh(1996) 11 SCC 77, Tilak Raj (2003) 6 SCC 123, OrissaUniversity of Agriculture & Technology (2003) 5 SCC 188 andTarun K. Roy (2004) 1 SCC 347 lay down the correct law.Undoubtedly, the doctrine of “equal pay for equal work” is not anabstract doctrine and is capable of being enforced in court oflaw. But equal pay must be for equal work of equal value. Theprinciple of “equal pay for equal work” has no mechanicalapplication in every case. Article 14 permits reasonableclassification based on qualities or characteristics of personsrecruited and grouped together, as against those who were leftout. Of course, the qualities or characteristics must have areasonable relation to the object sought to be achieved. In servicematters, merit or experience can be proper basis for classification

for the purposes of pay in order to promote efficiency inadministration. higher pay scale to avoid stagnation or resultantfrustration for lack of promotional avenues is also an acceptablereason for pay differentiation. The very fact that the person hasnot gone through the process of recruitment may itself, in certaincases, make difference. If the educational qualifications aredifferent, then also the doctrine may have no application. Eventhough persons may do the same work, their quality of work maydiffer. Where persons are selected by Selection Committee onthe basis of merit with due regard to seniority higher pay scalegranted to such persons who are evaluated by the competentauthority cannot be challenged. classification based on differencein educational qualifications justifies difference in pay scales. Amere nomenclature designating person as say carpenter or

Acraftsman is not enough to come to the conclusion that he is doingthe same work as another carpenter or craftsman in regularservice. The quality of work which is produced may be differentand even the nature of work assigned may be different. It is notjust comparison of physical activity. The application of theprinciple of “equal pay for equal work” requires consideration ofBvarious dimensions of given job. The accuracy required and thedexterity that the job may entail may differ from job to job. Itcannot be judged by the mere volume of work. There may bequalitative difference as regards reliability and responsibility.Functions may be the same but the responsibilities make aCdifference. Thus normally the applicability of this principle mustbe left to be evaluated and determined by an expert body. Theseare not matters where writ court can lightly interfere. Normallya party claiming equal pay for equal work should be required toraise dispute in this regard. In any event, the party who claimsequal pay for equal work has to make necessary averments andDprove that all things are equal. Thus, before any direction can beissued by court, the court must first see that there are necessaryaverments and there is proof. If the High Court is, on basis ofmaterial placed before it, convinced that there was equal work ofequal quality and all other relevant factors are fulfilled it mayEdirect payment of equal pay from the date of the filing of therespective writ petition. In all these cases, we find that the HighCourt has blindly proceeded on the basis that the doctrine of equalpay for equal work applies without examining any relevant factors.”

64. In SC Chandra and others vs. State of Jharkhand andFothers[11]Markandey Katju, J. in his concurring opinion observed asunder:-

“33. It may be mentioned that granting pay scales is purelyexecutive function and hence the court should not interfere withthe same. It may have cascading effect creating all kinds ofGproblems for the Government and authorities. Hence, the courtshould exercise judicial restraint and not interfere in such executivefunction vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen(2007)1 SCC 408.

35. In our opinion fixing pay scales by courts by applying theprinciple of equal pay for equal work upsets the high constitutionalprinciple of separation of powers between the three organs of theState. Realising this, this Court has in recent years avoided applyingthe principle of equal pay for equal work, unless there is completeand wholesale identity between the two groups (and there toothe matter should be sent for examination by an Expert Committeeappointed by the Government instead of the court itself grantinghigher pay).

36. It is well settled by the Supreme Court that only because thenature of work is the same, irrespective of educational qualification,mode of appointment, experience and other relevant factors, theprinciple of equal pay for equal work cannot apply vide Govt. ofW.B. v. Tarun K. Roy (2004) 1 SCC 347.

37. Similarly, in State of Haryana v. Haryana Civil SecretariatPersonal Staff Assn. (2002) 6 SCC 72the principle of equal payfor equal work was considered in great detail. In paras 9 and 10of the said judgment the Supreme Court observed that equationof posts and salary is complex matter which should be leftto an expert body. The courts must realise that the job is both adifficult and time consuming task which even experts having theassistance of staff with requisite expertise have found it difficultto undertake. Fixation of pay and determination of parity is acomplex matter which is for the executive to discharge. Grantingof pay parity by the court may result in cascading effect andreaction which can have adverse consequences vide Union ofIndia v. Pradip Kumar Dey (2000) 8 SCC 580.”

65. In Official Liquidator vs. Dayanand and others[12] Singhvi,J. speaking for Bench of three Judges observed as under:-

“94. The principle of equal pay for equal work for men and womenembodied in Article 39(d) was first considered in KishoriMohanlal Bakshi v. Union of India AIR 1962 SC 1139 and itwas held that the said principle is not capable of being enforced ina court of law. After 36 years, the issue was again considered inRandhir Singh v. Union of India (1982) 1 SCC 618, and it wasunequivocally ruled that the principle of equal pay for equal workis not an abstract doctrine and can be enforced by reading it into

the doctrine of equality enshrined in Articles 14 and 16 of theConstitution of India.

95. The ratio of Randhir Singh v. Union of India (1982) 1 SCC618 was reiterated and applied in several cases—DhirendraChamoli v. State of U.P. (1986) 1 SCC 637, Surinder Singh v.CPWD (1986) 1 SCC 639, Daily Rated Casual Labour v. Unionof India (1988) 1 SCC 122, Dharwad Distt. PWD Literate DailyWage Employees Assn. v. State of Karnataka (1990)2 SCC 396and Jaipal v. State of Haryana (1988) 3 SCC 354 and it washeld that even daily-wage employee who is performing dutiessimilar to regular employees is entitled to the same pay. However,in Federation of All India Customs and Central ExciseStenographers v. Union of India (1988) 3 SCC 91, Mewa RamKanojia v. AIIMS (1989)2 SCC 235, V. Markendeya v. State ofA.P (1989) 3 SCC 191, Harbans Lal v. State of H.P.(1989) 4SCC 459, State of U.P. v. J.P. Chaurasia (1989) 1 SCC 121,Grih Kalyan Kendra Workers’ Union v. Union of India(1991)1SCC 619, GDA v. Vikram Chaudhary(1995) 5 SCC 210, State ofHaryana v. Jasmer Singh (1996) 11 SCC 77, State of Haryanav. Surinder Kumar (1997) 3 SCC 633, Union of India v. K.V.Baby (1998) 9 SCC 252, State of Orissa v. Balaram Sahu (2003)1 SCC 250, Utkal University v. Jyotirmayee Nayak (2003) 4SCC 760 , State of Haryana v. Tilak Raj (2003) 6 SCC 123,Union of India v. Tarit Ranjan Das (2003) 11 SCC 658 ,Apangshu Mohan Lodh v. State of Tripura (2004) 1 SCC 119,State of Haryana v. Charanjit Singh (2006) 9 SCC 321,Hindustan Aeronautics Ltd. v. Dan Bahadur Singh (2007) 6SCC 207, Kendriya Vidyalaya Sangathan v. L.V.Subramanyeswara (2007) 5 SCC 326 and Canteen MazdoorSabha v. Metallurgical & Engg. Consultants (India) Ltd. (2007)7 SCC 710, the Court consciously and repeatedly deviated fromthe ruling of Randhir Singh v. Union of India (1982) 1 SCC618 and held that similarity in the designation or quantum of workare not determinative of equality in the matter of pay scales andthat before entertaining and accepting the claim based on theprinciple of equal pay for equal work, the Court must consider thefactors like the source and mode of recruitment/appointment, thequalifications, the nature of work, the value judgment,

responsibilities, reliability, experience, confidentiality, functionalneed, etc.

99. In Canteen Mazdoor Sabha v. Metallurgical & Engg.Consultants (India) Ltd (2007) 7 SCC 710 another two-JudgeBench held that simply because some employees of contractorof the alleged head employer are performing the task or dutiessimilar to the employees of the head employer, it will not entitlesuch employees to claim parity.

100. As mentioned earlier, the respondents were employed/engaged by the Official Liquidators pursuant to the sanctionaccorded by the Court under Rule 308 of the 1959 Rules and theyare paid salaries and allowances from the company fund. Theywere neither appointed against sanctioned posts nor were theypaid out from the Consolidated Fund of India. Therefore, the merefact that they were doing work similar to the regular employeesof the Offices of the Official Liquidators cannot be treated assufficient for applying the principle of equal pay for equal work.Any such direction will compel the Government to sanctionadditional posts in the Offices of the Official Liquidators so as tofacilitate payment of salaries and allowances to the company-paid staff in the regular pay scale from the Consolidated Fund ofIndia and in view of our finding that the policy decision taken bythe Government of India to reduce the number of posts meant fordirect recruitment does not suffer from any legal or constitutionalinfirmity, it is not possible to entertain the plea of the respondentsfor payment of salaries and allowances in the regular pay scalesand other monetary benefits on par with regular employees byapplying the principle of equal pay for equal work.”

66. In State of Punjab and another vs. Surjit Singh andothers[13] Sinha, J. considered all the relevant decisions on the point andstated as under:-

“8. Before us, the learned counsel urged that on analysis of thedecisions rendered by this Court, the following legal positionsemerge. We would deal with them in seriatim and as put forwardby the learned counsel:

(1) Mode and manner of selection can be ground ofclassification. In S.C. Chandra v. State of Jharkhand(2007)8 SCC 279 it has been held: (SCC pp. 290-91, paras 27 & 30)

“27. Thus, in State of Haryana v. Tilak Raj(2003) 6 SCC123 it was held that the principle can only apply if there iscomplete and wholesale identity between the two groups.Even if the employees in the two groups are doing identicalwork they cannot be granted equal pay if there is nocomplete and wholesale identity e.g. daily-rated employeemay be doing the same work as regular employee, yet hecannot be granted the same pay scale. Similarly, two groups ofemployees may be doing the same work, yet they may be givendifferent pay scales if the educational qualifications are different.Also, pay scale can be different if the nature of jobs,responsibilities, experience, method of recruitment, etc. aredifferent.

30. In State of U.P. v. Ministerial Karamchari Sangh (1998)1 SCC 422 the Supreme Court observed that even if personsholding the same post are performing similar work but ifthe mode of recruitment, qualification, promotion, etc. aredifferent it would be sufficient for fixing different pay scale.Where the mode of recruitment, qualification and promotionare totally different in the two categories of posts, there cannotbe any application of the principle of equal pay for equal work.”

(emphasis in original)

In given case, mode of selection may be considered as oneof the factors which may make difference. (See State ofHaryana v. Charanjit Singh(2006) 9 SCC 321, SCC para15.)

(2) daily wager working for long time should be grantedpay on the basis of the minimum of pay scale. Reliance inthis behalf has been placed on State of Karnataka v. Umadevi(3)(2006) 4 SCC 1. It was furthermore urged that this Courtshould follow the principle laid down by the Constitution Benchin Umadevi as such relief had been granted by it in respect

of daily wagers of the Commercial Taxes Department. Thelearned counsel submitted that this Court lately, although madea distinction between direction to regularise the employeeswho had been working for some time, but keeping in view theconstitutional mandate contained in Article 39-A of theConstitution of India directed grant of salary on scale ofpay, particularly in cases where the conduct of the State hadbeen found to be unreasonable, unjust and prejudiced.

17. We must also place on record the fact that in different phasesof development of law by this Court, relying on or on the basis ofthe said principle, clear cleavage of opinion has emerged.Whereas in the 1970s and 1980s, this Court liberally applied thesaid principle without insisting on clear pleadings or proof that thepersons similarly situated with others are equal in all respects; oflate also; this Court has been speaking in different voices as wouldbe evident from the following. This has been noticed specificallyby Division Bench of this Court in S.C. Chandra v. State ofJharkhand(2007) 8 SCC 279, wherein it was held: (SCC p.289, para 21)

“21. Learned counsel for the appellants have relied on Article39(d) of the Constitution. Article 39(d) does not mean that allthe teachers working in the school should be equated with theclerks in BCCL or the Government of Jharkhand for applicationof the principle of equal pay for equal work. There should betotal identity between both groups i.e. the teachers of the schoolon the one hand and the clerks in BCCL, and as such theteachers cannot be equated with the clerks of the StateGovernment or of BCCL. The question of application of Article39(d) of the Constitution has recently been interpreted by thisCourt in State of Haryana v. Charanjit Singh(2006) 9 SCC321 wherein Their Lordships have put the entire controversyto rest and held that the principle, ‘equal pay for equal work’must satisfy the test that the incumbents are performing equaland identical work as discharged by employees against whomthe equal pay is claimed. Their Lordships have reviewed allthe cases bearing on the subject and after detailed discussionhave finally put the controversy to rest that the persons who

claimed the parity should satisfy the court that the conditionsare identical and equal and same duties are being dischargedby them. Though number of cases were cited for ourconsideration but no useful purpose will be served as inCharanjit Singh(2006) 9 SCC 321 all these cases have beenreviewed by this Court. More so, when we have already heldthat the appellants are not the employees of BCCL, there is noquestion seeking any parity of pay with that of the clerks ofBCCL.”

18. Katju, J. in his separate but concurrent judgment opined asunder: (S.C. Chandra case (2007) 8 SCC 279, SCC pp. 290 &293-94, paras 26 & 35)

“26. Fixation of pay scale is delicate mechanism whichrequires various considerations including financial capacity,responsibility, educational qualification, mode of appointment,etc. and it has cascading effect. Hence, in subsequentdecisions of this Court the principle of equal pay for equalwork has been considerably watered down, and it has hardlyever been applied by this Court in recent years.

35. In our opinion fixing pay scales by courts by applying theprinciple of equal pay for equal work upsets the highconstitutional principle of separation of powers between thethree organs of the State. Realising this, this Court has in recentyears avoided applying the principle of equal pay for equalwork, unless there is complete and wholesale identitybetween the two groups (and there too the matter should besent for examination by an expert committee appointed by theGovernment instead of the court itself granting higher pay).”

19. The Bench in S.C. Chandra case (2007) 8 SCC 279 inarriving at the said finding specifically relied upon three-JudgeBench decision of this Court in Charanjit Singh(2006) 9 SCC321, wherein it was held: (Charanjit Singh case, SCC pp. 329-30 & 334-36, paras 9, 17, 19 & 22)

“9. In State of Haryana v. Tilak Raj(2003) 6 SCC 123 ithas been held that the principle of equal pay for equal work is

not always easy to apply. It has been held that there are inherentdifficulties in comparing and evaluating the work of differentpersons in different organisations or even in the sameorganisation. It has been held that this is concept whichrequires, for its applicability, complete and wholesale identitybetween group of employees claiming identical pay scalesand the other group of employees who have already earnedsuch pay scales. It has been held that the problem about equalpay cannot be translated into mathematical formula. It wasfurther held as follows: (SCC p. 127, para 11)

‘11. scale of pay is attached to definite post and in case ofa daily wager, he holds no posts. The respondent workers cannotbe held to hold any posts to claim even any comparison withthe regular and permanent staff for any or all purposes includinga claim for equal pay and allowances. To claim relief on thebasis of equality, it is for the claimants to substantiate clear-cut basis of equivalence and resultant hostile discriminationbefore becoming eligible to claim rights on par with the othergroup vis-à-vis an alleged discrimination. No material wasplaced before the High Court as to the nature of the duties ofeither categories and it is not possible to hold that the principleof “equal pay for equal work” is an abstract one.’

17. In Bhagwan Dass v. State of Haryana(1987) 4 SCC634 this Court held that if the duties and functions of thetemporary appointees and regular employees are similar, therecannot be discrimination in pay merely on the ground ofdifference in modes of selection. It was held that the burdenof proving similarity in the nature of work was on the aggrievedworker. We are unable to agree with the view that there cannotbe discrimination in pay on the ground of differences in modesof selection. As has been correctly laid down in Jasmer Singhcase (1996) 11 SCC 77 persons selected by SelectionCommittee on the basis of merit with due regard to senioritycan be granted higher pay scale as they have been evaluatedby the competent authority and in such cases payment of ahigher pay scale cannot be challenged. Jasmer Singh case

has been noted with approval in Tarun K. Roy case (2004) 1SC 347.

19. Having considered the authorities and the submissions weare of the view that the authorities in Jasmer Singh (1996) 1SC 77, Tilak Raj (2003) 6 SCC 123, Orissa University ofAgriculture & Technology (2003) 5 SCC 188 and Tarun K.Roy (2004) 1 SCC 347 lay down the correct law. Undoubtedly,the doctrine of ‘equal pay for equal work’ is not an abstractdoctrine and is capable of being enforced in court of law.But equal pay must be for equal work of equal value. Theprinciple of ‘equal pay for equal work’ has no mechanicalapplication in every case. Article 14 permits reasonableclassification based on qualities or characteristics of personsrecruited and grouped together, as against those who were leftout. Of course, the qualities or characteristics must have areasonable relation to the object sought to be achieved. Inservice matters, merit or experience can be proper basis forclassification for the purposes of pay in order to promoteefficiency in administration. higher pay scale to avoidstagnation or resultant frustration for lack of promotionalavenues is also an acceptable reason for pay differentiation.The very fact that the person has not gone through the processof recruitment may itself, in certain cases, make difference.If the educational qualifications are different, then also thedoctrine may have no application. Even though persons maydo the same work, their quality of work may differ. Wherepersons are selected by Selection Committee on the basis ofmerit with due regard to seniority higher pay scale granted tosuch persons who are evaluated by the competent authoritycannot be challenged. classification based on difference ineducational qualifications justifies difference in pay scales.A mere nomenclature designating person as say carpenteror craftsman is not enough to come to the conclusion that heis doing the same work as another carpenter or craftsman inregular service. The quality of work which is produced maybe different and even the nature of work assigned may bedifferent. It is not just comparison of physical activity. Theapplication of the principle of ‘equal pay for equal work’ requires

consideration of various dimensions of given job. The accuracyrequired and the dexterity that the job may entail may differfrom job to job. It cannot be judged by the mere volume ofwork. There may be qualitative difference as regards reliabilityand responsibility. Functions may be the same but theresponsibilities make difference. Thus normally theapplicability of this principle must be left to be evaluated anddetermined by an expert body. These are not matters where awrit court can lightly interfere. Normally party claiming equalpay for equal work should be required to raise dispute in thisregard. In any event, the party who claims equal pay for equalwork has to make necessary averments and prove that all thingsare equal. Thus, before any direction can be issued by court,the court must first see that there are necessary avermentsand there is proof. If the High Court is, on basis of materialplaced before it, convinced that there was equal work of equalquality and all other relevant factors are fulfilled it may directpayment of equal pay from the date of the filing of therespective writ petition. In all these cases, we find that theHigh Court has blindly proceeded on the basis that the doctrineof equal pay for equal work applies without examining anyrelevant factors.22. One other fact which must be noted is that Civil AppealsNos. 6648, 6647, 6572 and 6570 of 2002 do not deal with casualor daily-rated workers. These are cases of persons employedon contract. To such persons the principle of equal pay forequal work has no application. The Full Bench judgment dealtonly with daily-rated and casual workers. Where person isemployed under contract, it is the contract which will governthe terms and conditions of service. In State of Haryana v.Surinder Kumar(1997) 3 SCC 633 persons employed oncontract basis claimed equal pay as regular workers on thefooting that their posts were interchangeable. It was held thatthese persons had no right to the regular posts until they areduly selected and appointed. It was held that they were notentitled to the same pay as regular employees by claiming thatthey are discharging the same duties. It was held that the very

object of selection is to test the eligibility and then to makeappointment in accordance with the rules. It was held that therespondents had not been recruited in accordance with therules prescribed for recruitment.”

24. It is no longer in doubt or dispute that grant of the benefit ofthe doctrine of “equal pay for equal work” depends upon largenumber of factors including equal work, equal value, source andmanner of appointment, equal identity of group and wholesale orcomplete identity. This Court, even recently, in Union of India v.Mahajabeen Akhtar (2008) 1 SCC 368, categorically held asunder: (SCC pp. 376-77, paras 19 & 24)

“19. The question came to be considered in large number ofdecisions of this Court wherein it unhesitatingly came to theconclusion that large number of factors, namely, educationalqualifications, nature of duty, nature of responsibility, nature ofmethod of recruitment, etc. will be relevant for determiningequivalence in the matter of fixation of scale of pay. (SeeFinance Deptt. v. W.B. Registration Service Assn.1993 Supp(1) SCC 153, State of U.P. v. J.P. Chaurasia (1989) 1 SCC121, Union of India v. Pradip Kumar Dey (2000)8 SCC580 and State of Haryana v. Haryana Civil SecretariatPersonal Staff Assn. (2002) 6 SCC 72)

24. On the facts obtaining in this case, therefore, we are ofthe opinion that the doctrine of equal pay for equal work hasno application. The matter may have been different, had thescales of pay been determined on the basis of educationalqualification, nature of duties and other relevant factors. Weare also not oblivious of the fact that ordinarily the scales ofpay of employees working in different departments should betreated to be on par and the same scale of pay shall berecommended. The respondent did not opt for her services tobe placed on deputation. She opted to stay in the governmentservice as surplus. She was placed in list as Librarian inNational Gallery of Modern Art. She was designated asAssistant Librarian and Information Assistant. Her pay scale

was determined at Rs 6500-10,500 which was the revised scaleof pay. Her case has admittedly not been considered by theFifth Pay Revision Commission. If scale of pay in highercategory has been refixed keeping in view the educationalqualifications and other relevant factors by an expert body, noexception thereto can be taken. Concededly it was for theUnion of India to assign good reasons for placing her in adifferent scale of pay. It has been done. We have noticedhereinbefore that not only the essential educationalqualifications are different but the nature of duties is alsodifferent. Article 39(d) as also Article 14 of the Constitution ofIndia must be applied, inter alia, on the premise that equalityclause should be invoked in respect of the people who aresimilarly situated in all respects.”How the said principle is to be applied in different fact situationis the only question. Whereas this Court refused to apply thesaid principle as the petitioners therein did not have the requisitequalification; in Union of India v. Dineshan K.K (2008) 1SCC 586, the application of the rule was advocated to be leftto an expert body, stating: (Dineshan K.K. case) SCC pp.592-93, para 16)

“16. Yet again in recent decision in State of Haryana v.Charanjit Singh(2006) 9 SCC 321 Bench of threelearned Judges, while affirming the view taken by this Courtin State of Haryana v. Jasmer Singh (1996) 11 SCC 77,Tilak Raj (2003) 6 SCC 123, Orissa University ofAgriculture & Technology v. Manoj K. Mohanty (2003)5 SCC 188 and Govt. of W.B. v. Tarun K. Roy (2004) 1SCC 347 has reiterated that the doctrine of equal pay forequal work is not an abstract doctrine and is capable ofbeing enforced in court of law. Inter alia, observing thatequal pay must be for equal work of equal value and thatthe principle of equal pay for equal work has no mathematicalapplication in every case, it has been held that Article 14permits reasonable classification based on qualities orcharacteristics of persons recruited and grouped together,as against those who are left out. Of course, the qualitiesor characteristics must have reasonable relation to the

object sought to be achieved. Enumerating number offactors which may not warrant application of the principleof equal pay for equal work, it has been held that since thesaid principle requires consideration of various dimensionsof given job, normally the applicability of this principlemust be left to be evaluated and determined by an expertbody and the court should not interfere till it is satisfied thatthe necessary material on the basis whereof the claim ismade is available on record with necessary proof and thatthere is equal work of equal quality and all other relevantfactors are fulfilled.”

25. It may be that in Charanjit Singh (2006) 9 SCC 321, Variava,J., speaking for the three-Judge Bench, has used the word “may”in regard to the source of recruitment but the same has to beconsidered as relevant factor as the operative part of the judgmentshows. Charanjit Singh, therefore, does not militate against theother decisions of this Court where the mode and manner ofappointment has been considered to be relevant factor for thepurpose of invocation of the said doctrine. We are bound by theaforementioned three-Judge Bench decision.”

67. In Steel Authority of India Limited and others vs. DibyenduEBhattacharya[14] Dr. Chauhan, J. stated:

“23. This Court while deciding similar issue in State of W.B. v.W.B. Minimum Wages Inspectors Assn. (2010) 5 SCC 225,held as under: (SCC p. 232, paras 18-20)

“18. … The evaluation of duties and responsibilities of differentposts and determination of the pay scales applicable to suchposts and determination of parity in duties and responsibilitiesare complex executive functions, to be carried out by expertbodies. Granting parity in pay scale depends upon comparativejob evaluation and equation of posts.

19. The principle ‘equal pay for equal work’ is not afundamental right but constitutional goal. It is dependent onvarious factors such as educational qualifications, nature ofthe jobs, duties to be performed, responsibilities to be discharged,experience, method of recruitment, etc. Comparison merelybased on designation of posts is misconceived. Courts should

approach such matters with restraint and interfere only ifthey are satisfied that the decision of the Government ispatently irrational, unjust and prejudicial to any particularsection of employees.

20. The burden to prove disparity is on the employees claimingparity….”

30. In view of the above, the law on the issue can be summarisedto the effect that parity of pay can be claimed by invoking theprovisions of Articles 14 and 39(d) of the Constitution of India byestablishing that the eligibility, mode of selection/recruitment,nature and quality of work and duties and effort, reliability,confidentiality, dexterity, functional need and responsibilities andstatus of both the posts are identical. The functions may be thesame but the skills and responsibilities may be really andsubstantially different. The other post may not require any higherqualification, seniority or other like factors. Granting parity in payscales depends upon the comparative evaluation of job and equationof posts. The person claiming parity, must plead necessaryaverments and prove that all things are equal between the postsconcerned. Such complex issue cannot be adjudicated byevaluating the affidavits filed by the parties.

31. The onus to establish the discrimination by the employer lieson the person claiming the parity of pay. The Expert Committeehas to decide such issues, as the fixation of pay scales, etc. fallswithin the exclusive domain of the executive. So long as the valuejudgment of those who are responsible for administration i.e.service conditions, etc. is found to be bona fide, reasonable, andon intelligible criteria which has rational nexus of objective ofdifferentiation, such differentiation will not amount todiscrimination. It is not prohibited in law to have two grades ofposts in the same cadre. Thus, the nomenclature of post maynot be the sole determinative factor. The courts in exercise oftheir limited power of judicial review can only examine whetherthe decision of the State authorities is rational and just or prejudicialto particular set of employees. The court has to keep in mindthat mere difference in service conditions does not amount to

Adiscrimination. Unless there is complete and wholesale/wholesomeidentity between the two posts they should not be treated asequivalent and the court should avoid applying the principle ofequal pay for equal work”.

68. Analysis of the decisions referred to above shows that thisBCourt has accepted following limitations or qualifications to theapplicability of the doctrine of ‘equal pay for equal work’:-

i) The doctrine of ‘equal pay for equal work’ is not an abstractdoctrine.

ii) The principle of ‘equal pay for equal work’ has no mechanicalCapplication in every case.

iii) The very fact that the person has not gone through the processof recruitment may itself, in certain cases, makes difference.

iv) The application of the principle of ‘equal pay for equal work’Drequires consideration of various dimensions of given job.

v) Thus normally the applicability of this principle must be left tobe evaluated and determined by an expert body. These arenot matters where writ court can lightly interfere.

vi) Granting pay scales is purely executive function and henceEthe court should not interfere with the same. It may have acascading effect creating all kinds of problems for theGovernment and authorities.

vii)Equation of posts and salary is complex matter which shouldbe left to an expert body.Fviii) Granting of pay parity by the court may result in cascadingeffect and reaction which can have adverse consequences.

ix) Before entertaining and accepting the claim based on theprinciple of equal pay for equal work, the Court must considerthe factors like the source and mode of recruitmentGappointment.

x) In given case, mode of selection may be considered as oneof the factors which may make difference.

69. The latest decision on which heavy reliance was placed onbehalf of Niyojit Teachers is the one rendered by Bench of two JudgesH

in State of Punjab and others vs. Jagjit Singh and others[2]. Theissues that arose for consideration were set out in para 5 as under:-

“5. The issue which arises for our consideration is: whethertemporarily engaged employees (daily-wage employees, ad hocappointees, employees appointed on casual basis, contractualemployees and the like), are entitled to minimum of the regularpay scale, along with dearness allowance (as revised from timeto time) on account of their performing the same duties which aredischarged by those engaged on regular basis, against sanctionedposts? The Full Bench (Avtar Singh vs. State of Punjab, 2011SCC Online P & 15326) of the High Court, while adjudicatingupon the above controversy had concluded, that such liketemporary employees were not entitled to the minimum of theregular pay scale, merely for reason, that the activities carried onby daily wagers and the regular employees were similar. However,it carved out two exceptions, and extended the minimum of theregular pay to such employees. The exceptions recorded by theFull Bench of the High Court in the impugned judgment areextracted hereunder: (Avtar Singh case, SCC OnLine P&H para37)

“(1) daily wager, ad hoc or contractual appointee against theregular sanctioned posts, if appointed after undergoing aselection process based upon fairness and equality ofopportunity to all other eligible candidates, shall be entitled tominimum of the regular pay scale from the date of engagement.

(2) But if daily wagers, ad hoc or contractual appointees arenot appointed against regular sanctioned posts and their servicesare availed continuously, with notional breaks, by the StateGovernment or its instrumentalities for sufficient long periodi.e. for 10 years, such daily wagers, ad hoc or contractualappointees shall be entitled to minimum of the regular pay scalewithout any allowances on the assumption that work ofperennial nature is available and having worked for such longperiod of time, an equitable right is created in such category ofpersons. Their claim for regularisation, if any, may have to beconsidered separately in terms of legally permissible scheme.

(3) In the event, claim is made for minimum pay scale aftermore than three years and two months of completion of 10

Ayears of continuous working, daily wager, ad hoc or contractualemployee shall be entitled to arrears for period of three yearsand two months.”

70. While considering the aforesaid issue this Court had noted allthe decisions on the point of pay parity from Randhir Singh vs. UnionBof India[31] and then in para 42 arrived at conclusions. The limitations orqualifications to the application of doctrine of ‘equal pay for equal work’were also considered in para 42 and from para 43 onwards, Claim forpay parity raised by temporary employees (differently designated aswork-charge, daily-wage, casual, ad hoc, contractual and the like) wasalso considered. After discussion on the point, the matter was concludedCthus:-“57. There is no room for any doubt that the principle of “equalpay for equal work” has emerged from an interpretation of differentprovisions of the Constitution. The principle has been expoundedthrough large number of judgments rendered by this Court, andDconstitutes law declared by this Court. The same is binding on allthe courts in India under Article 141 of the Constitution of India.The parameters of the principle have been summarised by us inpara 42 hereinabove. The principle of “equal pay for equal work”has also been extended to temporary employees (differentlyEdescribed as work-charge, daily wage, casual, ad hoc, contractual,and the like). The legal position, relating to temporary employeeshas been summarised by us, in para 44 hereinabove. The abovelegal position which has been repeatedly declared, is beingreiterated by us yet again.”

F71. The qualifications to the applicability of the doctrine of ‘equalpay for equal work’ which have long been recognised and acknowledgedin the decisions referred to above are well established. The decision inJagjit Singh[2] again reiterated some of those qualifications. Theselimitations or qualifications have not been diluted but stand re-inforced.

G72. We may, at this stage, deal with the submission advanced onbehalf of the State that the decision in Jagjit Singh did not take intoaccount the earlier decisions rendered by this Court in State of Punjabvs. Joginder Singh[28]and Zabar Singh vs. The State of Haryana[29]and others.

In the first case, Respondent Joginder Singh was working as ateacher in District Board High School in Hoshiarpur before 1.10.1957.By reason of government decision taken in September, 1957, which cameinto effect on 1.10.1957 all teachers like Respondent Joginder Singh,employed in District Board and Municipal Board Schools, became Stateemployees. Before such decision was taken, the State had decided tohave two categories of teachers working in the State service. 15% ofthe total strength of teachers were put in middle scale of salary scalewhile the rest of 85% were put in lower scale. The former, thus, hadbetter chances of promotion to further levels. After taking over theschools run by District Board and Municipal Boards, which was called‘provincialization’ the teachers like Respondent Joginder Singh, thoughbecame State employees, were part of cadre of provincialized teacherswhich was distinct from the cadre of State teachers. decision wasalso taken not to make any further appointments in the provincializedcadre and thus said cadre was to be dying or vanishing cadre. It wasalso decided that the provincialized cadre would stand bifurcated on thesame pattern of 15:85 as was done in the State cadre but any retirementsin the provincialized cadre would not result in fresh appointments in thatcadre but the appropriate number would get added to the State cadreand fresh appointments would be made only in the State cadre. It mustbe noted that the employees in both the cadres were given the samepay-scale but their chances of promotion were completely different.The submission that with the passage of time, the strength of provincializedcadre would keep reducing and as such, the chances of promotion andbeing part of 15% group would keep diminishing and as such theemployees in provincialized cadre would be put to prejudice was acceptedby the High Court. It was observed by this Court in State of Punjabvs. Joginder Singh[28]as under:-

“22. It now remains to consider point which was raised that theState cannot constitute two Services consisting of employees doingthe same work but with different scales of pay or subject todifferent conditions of service and that the constitution of suchservices would be violative of Article 14. Underlying this submissionare two postulates: (1) equal work must receive equal pay, and(2) if there be equality in pay and work there have to be equalconditions of service. So far as the first proposition is concernedit has been definitely ruled out by this Court in Kishori Mohanlal

v. Union of India (1962 SC AIR 1139) Das Gupta, J. speakingfor the Court said:

“The only other contention raised is that there is discriminationbetween Class I and Class II officers inasmuch as though theydo the same kind of work their pay scales are different. This,it is said, violates Article 14 of the Constitution. If this contentionhad any validity, there could be no incremental scales of payfixed dependent on the duration of an officer’s service. Theabstract doctrine of equal pay for equal work has nothing to dowith Article 14. The contention that Article 14 of theConstitution has been violated, therefore, also fails.”

The second also, is, in our opinion, unsound. If, for instance, anexisting service is recruited on the basis of certain qualification,the creation of another service for doing the same work, it mightbe in the same way but with better prospects of promotion cannotbe said to be unconstitutional, and the fact that the rules framedpermit free transfers of personnel of the two groups to placesheld by the other would not make any difference. We are notbasing this answer on any theory that if government servantenters into any contract regulating the conditions of his service hecannot call in aid the constitutional guarantees because he is boundby his contract. But this conclusion, rests on different and widerpublic grounds viz. that the government which is carrying on theadministration has necessarily to have choice in the constitutionof the services to man the administration and that the limitationsimposed by the constitution are not such as to preclude the creationof such services. Besides, there might, for instance, be temporaryrecruitment to meet an exigency or an emergency which is notexpected to last for any appreciable period of time. To deny to theGovernment the power to recruit temporary staff drawing thesame pay and doing the same work as other permanent incumbentswithin the cadre strength but governed by different rules andconditions of service, it might be including promotions, would beto impose restraints on the manner of administration which webelieve was not intended by the Constitution. For the purpose ofthe decision of this appeal the question here discussed is ratheracademic but we are expressing ourselves on it in view of thearguments addressed to us.

23. Besides the disparity in the chances of promotion betweenteachers of the provincialised and the State Cadre created byRule 3 of the impugned rules, the learned Judges of the HighCourt have held that there was further disparity by reason ofthe teachers of the State Cadre being borne on Divisional list,while under the rules the inter se seniority and promotions of“provincialised” teachers was determined districtwise. It waspointed out by the learned Solicitor-General for the appellant thatthe State Cadre was kept on Divisional basis because of thevery small number of the members of that Service, whereas itwas found administratively inconvenient to have similargeographical classification of members of the provincialised serviceand for that reason and no other, districtwise seniority, promotionand transfers was laid down for provincialised teachers. Learnedcounsel for the respondent did not rely on this reasoning of thelearned Judges of the High Court in deciding the case now underappeal. We therefore do not consider it necessary to make anyfurther reference to it.24. As we have stated already, the two services started asindependent Services. The qualifications prescribed for entry intoeach were different, the method of recruitment and the machineryfor the same were also different and the general qualificationspossessed by and large by the members of each class beingdifferent, they started as two distinct classes. If the GovernmentOrder of September 27, 1957 did not integrate them into singleservice, it would follow that the two remained as they started astwo distinct services. If they were distinct services, there was noquestion of inter se seniority between members of the two services,nor of any comparison between the two in the matter of promotionfor founding an argument based upon Article 14 or Article 16(1).They started dissimilarly and they continued dissimilarly and anydissimilarity in their treatment would not be denial of equalopportunity, for it is common ground that within each group thereis no denial of that freedom guaranteed by the two articles. Thefoundation therefore of the judgment of the learned Judges of theHigh Court that the impugned rules created two classes out ofwhat was formerly single class and introduced elements ofdiscrimination between the two, has no factual basis if, as wehold the order of September 27, 1957 did not effectuate complete

integration of the two Services. On this view it would follow thatthe impugned rules cannot be struck down as violative of theConstitution.

25. Before concluding it is necessary to point out that, as explainedearlier, the source of the prejudice caused by the impugned rulesto the “provincialised” teachers lies not in the fact that the twocadres were kept separate but on account of the fact that the“provincialised” cadre was intended to be gradually extinguished.The real question for consideration would therefore be whetherthere was anything unconstitutional in the Government decision inthe matter. In other words, had the respondent and his class anyfundamental right to have their cadre strength maintainedundiminished? This is capable of being answered only in thenegative. If their cadre strength became diminished, the proportionthereof who could be in the grade viz. 15% of the total strengthbeing predetermined, there must necessarily be progressivereduction in the number of selection posts. In other words merereduction of the cadre strength would bring about that result andunless the respondent could establish that the Government werebound in Law to fill up all vacancies in the provincialised cadre byfresh recruitment to that cadre and thus keep its strength at thelevel at which it was on October 1, 1957, he should fail. It ismanifest that such contention is obviously untenable.”

73. In the second decision it was contended that the decision ofthe Constitution Bench in Joginder Singh’s case required reconsiderationand as such Bench of seven Judges was constituted which dealt withthe matter in Zabar Singh and others vs. The State of Haryana andFothers[29]. The discussion in paragraphs 27 to 30, 32 to 33 and 35, 36 and40 was as under:-

“27. The position which emerges from the aforesaid analysis isthat prior to October 1, 1957, the two categories of teachers, thoseserving in the local bodies schools and those in government schoolswere distinct. Though the minimum qualifications and scales ofpay might have been uniform, there were differences in othermatters such as methods of recruitment, retiral benefits, rules fordetermining seniority, etc. It is also clear that whereas agovernment school teacher was liable to be transferred to anyplace throughout the Commissioner’s division, local body teacher

could only be transferred within the territorial limits of that body.Appointments in Local Bodies schools, no doubt, were made byInspectors appointed by government, but they could do so only inconsultation with the Chairman or President of such body. Thatwas the position also in regard to disciplinary matters. Further,although the prescribed minimum qualifications were the same, inpoint of fact 50% or more of the Local Bodies teachers werenon-matriculates and quite number of such non-matriculateteachers were also without the qualification of Basic Training asagainst few non-matriculates and none without such BasicTraining in the Government schools. In any event the mere factthat minimum qualifications and scales of pay were the same couldnot mean, in view of other dissimilar conditions of service, thatthe two categories of teachers formed one class. Indeed, MrTarkunde conceded, as is even otherwise clear, that prior toOctober 1, 1957, teachers in local bodies and in government schoolsdid not form one class.

28. So far as the position on October 1, 1957, is concerned, asalready noticed, the Government schools teachers were andcontinued to be governed by the Rules of 1955, which, no doubt,came into force with effect from May 30, 1957 and whichprescribed the minimum qualifications as Matriculation in additionto Basic Training. Government school teachers who, under the1937-Rules, were recruited by the Director of Public Instruction,were since 1954 selected by the Selection Board after their initialpay had been raised from Rs 47½ to Rs 50 per month. The LocalBodies teachers, on the other hand, were recruited by Inspectorsin consultation with the Presidents or Chairmen of those bodiestill July 1957 when fresh appointments in vacancies falling in thoseschools were stopped. Under the new Rules of 1955, Governmentprovided for selection grade for 15% posts. In fact, such gradewas given to them even before 1955-Rules were framed and thenew rules merely continued that benefit. Broadly speaking, theposition on October 1, 1957, was that the two categories ofteachers formed distinct classes. Though they were performingsimilar duties, they could not be said to form one integrated class.

29. The question then is, whether in spite of the Governmentschool teachers and the provincialised teachers forming two distinct

classes on October 1, 1957, they were, during the period betweenthat date and February 13, 1961, integrated into one class, whichwas split up into two cadres by those Rules? It would perhapsappear from the statement of the Education Minister made at thePress Conference on the eve of provincialisation that Governmenthad in the beginning the idea of bringing about integration betweenthe two types of teachers. But no such concrete decision wasever taken. few dates at this stage may clarify the position. Asaforesaid, the decision to provincialise the local bodies schoolswas taken on July 19, 1957. In pursuance of that decision.Government on August 2, 1957, placed ban against any freshrecruitment of teachers in the Local Bodies schools. On September27, 1957, the Governor sanctioned the scheme of provincialisationand at the same time sanctioned 20,000 and odd new posts toabsorb the existing staff of the provincialised schools.Simultaneously with the provincialisation, the Government onOctober 1, 1957, gave the same scales of pay to the provincialisedteachers as were available to government schools teachers. Theproblem, however, was how to fix and adjust the provincialisedteachers in government service and fix their inter se seniority asalso their seniority vis-a-vis the government schools teachers.30. It is fairly clear from the memorandum published along with1961-Rules that Government was seeking to discover properformula to solve these questions. This process was, it appears,going on since November 23, 1959, when alternative proposalswere framed for discussion and those proposals werecommunicated to the recognised associations of the teachers. Sinceno agreed consensus was forthcoming from the teachersthemselves, Government formed its own decisions as formulatedby the Secretary, Education Department in his letter of January27, 1960, to the Director of Public Instruction. These decisionswere made around three basic principles: (i) that the two cadreswill continue to be separate as before; (ii) that the provincialisedcadre would be diminishing cadre; and (iii) following upon (i)and (ii), vacancies arising as result of promotions, retirements,resignations, etc., in the provincialised cadre should be transferredto the State cadre so that ultimately after about thirty years theprovincialised cadre would vanish altogether leaving the Statecadre alone in the field. These events leave no doubt that at no

time after October 1, 1957, any decision for integrating the twocategories of teachers was taken although after October 1, 1957,new teachers were appointed and posted in both the provincialisedas well as government schools who carried out the same dutiesand were given the same scales of pay as the provincialisedteachers. But such new teachers had to be deemed to have beenappointed in the State cadre by reason of the two principles decidedupon by the Government, (i) the diminishing character of theprovincialised cadre, and (ii) that cadre having been frozen fromeven before October 1, 1957. Thus, the two categories continuedto be separate and were never integrated. The Government schoolsteachers and those appointed after October 1, 1957, were governedby 1955-Rules while the provincialised teachers continued to bepresumably governed by the District Boards’ Rules until new ruleswere framed for them by Government. Thus the Rules of 1961could not be said to have split up the teachers, who formed oneintegrated cadre into two new cadres. These Rules had to bemade as the inter-seniority among provincialised teachersappointed by different local bodies in different districts had to bedetermined and their position in the service had to be adjusted.The Rules were framed on the principles formulated in the decisionstaken by Government on July 27, 1960.

32. It will be observed that though the provincialised teacherswere given the same scales of pay as the teachers in the Statecadre, the Rules provided that unlike the latter they could betransferred only within the District where they were serving.Those who were already confirmed prior to the provincialisationwere also deemed to be confirmed under these Rules. That meantthat for purposes of their seniority their entire service, includingservice before such confirmation would be taken into account,except that inter se seniority of those promoted to the selectiongrade was to be determined from the date of their confirmation inthat grade.

33. Thus, although the teachers in both the cadres were given thesame scales of pay and did the same kind of work and thoseappointed after October 1, 1957, were posted and worked in thesame provincialised schools as teachers in the provincialised cadre,

the fact was that the State cadre teachers were and continued tobe governed by 1955-Rules while the provincialised teachers weregoverned by 1961-Rules. This fact, coupled with the fact that onewas district and the other divisional cadre, meant that the twocadres continued to be separate cadres as before. The principaleffect of the new Rules, however, was that the number of postsin the cadre would gradually diminish and together with that thetotal number of posts in the selection grade, despite the percentageof fifteen remaining intact. But that was the inevitable result ofthe freezing of the cadre, on the one hand, and its being adiminishing cadre on the other. The State cadre becamecorrespondingly an expanding cadre, the total number of posts forall the schools, Government and provincialised, remaining moreor less constant.

35. The controversy thus really turns on the question whetherGovernment was bound to integrate the two categories of teachersinto one and not to continue them as separate cadres as before,and whether its refusal to do so meant violation either of Article14 or Article 16. It is true that notwithstanding this Court upholdingthe validity of the 1961-Rules in Punjab v. Joginder, the thenGovernment of Punjab in 1965 adopted uniform running scalefor both the cadres of Rs 60-Rs 175 with common 15% forhigher grade posts. But that decision has nothing to do with thequestion of the validity of 1961-Rules, and if those Rules werevalid, with the validity of the decision of the new State of Haryanato implement those Rules instead of the common running scaleadopted by Punjab State.

36. The principles on which discrimination and breach of Articles14 and 16 can be said to result have been by now so well settledthat we do not think it necessary to repeat them here once again.As already seen, ever since 1937 and even before, the twocategories of teachers have always remained distinct, governedby different sets of rules, recruited by different authorities andhaving, otherwise than in the matters of pay-scales andqualifications, different conditions of service. This position remainedas late as February 13, 1961. On that day whereas the State cadreteachers were governed by 1955-Rules, rules had yet to be framedfor the provincialized teachers. The two cadres thus beingseparate, Government was not bound to bring about an integratedcadre especially in view of its decision of making the provincializedcadre diminishing one and bringing about ultimately through thatprinciple one cadre only in the field in phased manner. If throughhistorical reasons the teachers had remained in two separatecategories, the classification of the provincialized teachers into aseparate cadre could not be said to infringe Article 14 or Article16. It was also not incumbent on the Government to frame the1961-Rules uniformly applicable to both the categories of teachers,firstly, because rule-framing authority need not legislate for allthe categories and can select for which category to legislate (SeeSakhawat Ali v. State of Orissa (1955) 1 SCR 1004 ;Madhubhai Amathalal Gandhi v. Union of India (1961) 1SCR 191 and Vivian Joseph Ferreira v. Municipal Corporationof Greater Bombay (1972) 1 SCC 70) and secondly, because ithad already come to decision of gradually diminishing theprovincialized cadre so that ultimately only the State cadre wouldremain in the service. That was one way of solving the intricatedifficulty of inter-seniority. There can be no doubt that if there aretwo categories of employees, it is within Government’s power torecruit in one and not recruit in the other. There is no right in agovernment employee to compel it to make fresh appointments inthe cadre to which he belongs. It cannot also be disputed thatGovernment had the power to make rules with retrospective effect,and therefore, could provide therein that appointments madebetween October 1, 1957 and February 13, 1961, shall be treatedas appointments in the State cadre. That had to be done for thesimple reason that the provincialized cadre was already frozeneven before October 1, 1957 and Government had decided not tomake fresh appointments in that cadre since that cadre was to bea diminishing one.

40. Regarding Respondents 37 to 96, all of them were appointedafter provincialisation. They are junior in service than the petitionersand some others in the provincialised cadre. But their case is notcomparable, for, they were appointed under 1955-Rules andthrough the recruitment authorities prescribed under those rules

ABCDEF

Ai.e. the Selection Board. Obviously, they could not be appointed inthe provincialised cadre as that had been frozen even beforeOctober 1, 1957. They may have been posted in the provincialisedschools but that cannot mean that they were appointed in thatcadre. Their appointment being in separate cadre, it is impossibleto say that they were similarly situated. By reason of theirBrecruitment in the State cadre, their conditions of service, includingtheir promotional chances and their seniority would be governedby 1955-Rules and would only be comparable to those in thatcadre only.”74. Heavy reliance was placed on the aforesaid decisions by theClearned Attorney General and the learned counsel who appeared for theState. It was submitted that though the teachers in provincialized cadreand the State cadre were doing similar duties and discharging identicalresponsibilities and though, they were as matter of fact drawing similarpay and emoluments, the services were considered to be distinct andDdifferent. The feature that one of the cadres was to be dying orvanishing cadre was also present in those cases. It was accepted bythis Court that the State was within its Rights to let particular serviceor cadre be dying or vanishing cadre and keep making appointments inother service while maintaining distinct identities of both the services,even when the teachers coming from the both the cadres were doingEidentical jobs. Though, strictly speaking, those two matters did not involveconcept of ‘equal pay for equal work’, these cases do point that theState can validly make such distinction or differentiation. The learnedAttorney General and the learned counsel appearing for the State were,therefore, justified in placing reliance on these two decisions. It is alsoFevident that the subsequent judgments have not noted the decisions ofthis Court in Joginder Singh[28]and Zabar Singh[29]. For the purposesof present discussion, we will proceed on the basis that even when theteachers from both the cadres were discharging similar duties andresponsibilities, the decision of the State government to maintain differentidentities of these two cadres was not found objectionable by this CourtGand further there could be inter se distinctions between these two cadres.It is true that both the cadres were enjoying same pay structure but thesubmission that the chances of promotion ought to be similar was notaccepted by the Court.

75. We must also consider observations of this Court in paragraph12 in its decision in Secretary, Finance Department and others vs.West Bengal Registration Service Association and others[8], whichbring out how ‘pay structure’ is evolved. The relevant portion of saidparagraph was:-

12. … … Ordinarily pay structure is evolved keeping in mindseveral factors, e.g., (i) method of recruitment, (ii) level at whichrecruitment is made, (iii) the hierarchy of service in given cadre,(iv) minimum educational/technical qualifications required, (v)avenues of promotion, (vi) the nature of duties and responsibilities,(vii) the horizontal and vertical relativities with similar jobs, (viii)public dealings, (ix) satisfaction level, (x) employer’s capacity topay, etc. We have referred to these matters in some detail only toemphasise that several factors have to be kept in view whileevolving pay structure and the horizontal and vertical relativitieshave to be carefully balanced keeping in mind the hierarchicalarrangements, avenues for promotion, etc. Such carefully evolvedpay structure ought not to be ordinarily disturbed as it may upsetthe balance and cause avoidable ripples in other cadres as well.

76. We, therefore, have to proceed on the following basic premise:-

a)It was open to the State to have two distinct cadres namelythat of ‘Government Teachers’ and ‘Niyojit Teachers’ withGovernment Teachers being dying or vanishing cadre. Theincidents of these two cadres could be different. The idea byitself would not be discriminatory.

b)The pay structure given to the Niyojit Teachers was definitelylower than what was given to Government Teachers but thenumber of Government Teachers was considerably lower thanthe number of Niyojit Teachers.

As stated above, presently there are just about 66,000Government Teachers in the State as against nearly 4 lakhNiyojit Teachers. There is scope for further appointment ofabout 1 lakh teachers which could mean that as against 5lakh teachers the number of State Teachers wouldprogressively be going down.

Ac)The parity that is claimed is by the larger group with the lessergroup as stated above which itself is dying or vanishingcadre.

d)The mode of recruitment of Niyojit Teachers is completelydifferent from that of the Government Teachers as statedBabove.77. If pay structure is normally to be evolved keeping in mindfactors such as “method of recruitment” and “employer’s capacity topay” and if the limitations or qualifications to the applicability of thedoctrine of ‘equal pay for equal work’ admit inter alia the distinction onCthe ground of process of recruitment, the stand taken on behalf of theState Government is not unreasonable or irrational. Going by the factsindicated above and the statistics presented by the State Government, itwas an enormous task of having the spread and reach of education inthe remotest corners. Furthermore, the literacy rate of the State whichwas lagging far behind the national average was also matter whichDrequired attention. The advances made by the State on these fronts arequite evident. All this was possible through rational use of resources.How best to use or utilise the resources and what emphasis be given towhich factors are all policy matters and in our considered view the Statehad not faltered on any count. As laid down by this Court in the decisionsEin Joginder Singh[28]and Zabar Singh[29], the State was justified in havingtwo different streams or cadres. The attempt in making over the processof selection to Panchayati Raj Institutions and letting the cadre of StateTeachers to be dying or vanishing cadre were part of the samemechanics of achieving the spread of education. These issues were allpart of an integrated policy and if by process of judicial intervention anyFdirections are issued to make available same salaries and emoluments toNiyojit Teachers, it could create tremendous imbalance and cause greatstrain on budgetary resources.

78. It is true that the budgetary constraints or financial implicationscan never be ground if there is violation of Fundamental Rights of aGcitizen. Similarly, while construing the provisions of the RTE Act andthe Rules framed thereunder, that interpretation ought to be acceptedwhich would make the Right available under Article 21A reality. Asthe text of the Article shows the provision is essentially child-centric.There cannot be two views as regards the point that Free and CompulsoryHEducation 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 areapplicable to the State Teachers. The modalities in which expert teacherscan be found, whether by giving them better scales and/or by insistingon threshold ability which could be tested through examinations such asTET Examination are for the Executive to consider.

79. In our considered view, there has been no violation of theRights of the Niyojit Teachers nor has there been any discriminationagainst them. We do not find that the efforts on part of the StateGovernment could be labelled as unfair or discriminatory. Consequently,the submissions as to how the funds could and ought to be generatedand what would be the burden on the State Government and the CentralGovernment, do not arise for consideration.

In our view, great strides have been made by the State in the lastdecade. It has galvanised itself into action and not only achieved theobjectives of having schools in every neighbourhood but has alsosucceeded in increasing the literacy rate. It has also succeeded in havingmore girl children in the stream of education and consequently the TFR,as indicated above, has also improved to great extent. If these are thebenefits or rewards which the society stands to gain and achieve, theState ought to be given appropriate free play. The tabular charts placedon record by the State also show continuous improvements made by theState in the packages made available to the Niyojit Teachers. Saidattempts also show that the State is moving in the right direction and thegap which is presently existing between the Government Teachers andthe Niyojit Teachers would progressively get diminished. Consideringthe large number of Niyojit Teachers as against the GovernmentTeachers, the steps taken by the State as evident from various tabularcharts presented by it are in the right direction. At this juncture, anydirections as have been passed by the High Court, may break eventempo which the State has consistently been able to achieve.

80. At the same time, the submission that at the initial stage theNiyojit Teachers are given such emoluments which are lesser than peonsand clerks in the same school is matter which requires attention. It istrue that after having put in two years of service, the emoluments madeavailable to Niyojit Teachers show some improvements but the disparityat the initial stage is more than evident. The State may certainly beentitled to devise pay structure for Niyojit Teachers and the courts

Amay not interfere in policy matters but, if there is an imbalance of thenature as presented before this Court, the matter raises concern. Theteachers must be entitled to decent emoluments. In the chart referred toin para 32(c) above, after two years of service with proposedenhancement as per recommendations of the three member Committeethe scales payable to Niyojit Teachers would show some increase asBagainst those in respect of peons and clerks. The State may considerraising the scales of Niyojit Teachers at least to the level suggested bythe Committee, without insisting on any test or examination advised bythe Committee. Those who clear such test or examination, may begiven even better scales. This is only suggestion which may beCconsidered by the State.

81. In the circumstances, we allow these appeals preferred bythe State, set aside the judgment and order under appeal and dismiss theWrit Petitions preferred on behalf of Niyojit Teachers.

82. In the end, we must express our sincere gratitude for theDassistance rendered by all the learned counsel who appeared in thematters. We are grateful to all the learned counsel.

83. These appeals are allowed in aforesaid terms. No order as tocosts.

EABHAY MANOHAR SAPRE, J.

1. I have had the advantage of going through an elaborate, wellconsidered and scholarly drafted judgment proposed by my esteemedbrother Justice Uday Umesh Lalit.

2. I entirely agree with the reasoning and the conclusion, whichFmy erudite brother has drawn, which are based on remarkably articulateprocess of reasoning. However, having regard to the nature of thecontroversy involved in these appeals, which was ably argued by seniorlawyers in their respective submissions, I wish to add few words ofmine.

3. This case reminds me of the apt observations made by aneminent Judge of this Court, Vivian Bose J., in his concurring opinion inthe case of Bidi Supply Co. vs. Union of India & Ors., AIR 1956 SC479. The learned Judge made these observations while examining theobject and the scope of Article 14 of the Constitution of India.

4. In his immaculately and distinctive style of writing, the learnedJudge made the observations in paras 15 and 16, which read as under:

“15. With the utmost respect all this seems to me to breakdown on precise analysis, for even among equals largediscretion is left to judges in the matter of punishment, andto the police and to the State whether to prosecute or notand to host of officials whether to grant or withhold permitor licence. In the end, having talked learnedly round andaround the article we are no wiser than when we startedand in the end come back to its simple phrasing—

“The State shall not deny to any person equality beforethe law or the equal protection of the laws within theterritory of India.”

16. The truth is that it is impossible to be precise, for weare dealing with intangibles and though the results are clearit is impossible to pin the thought down to any preciseanalysis. Article 14 sets out, to my mind, an attitude of mind,a way of life, rather than precise rule of law. It embodies ageneral awareness in the consciousness of the people atlarge of something that exists and which is very real butwhich cannot be pinned down to any precise analysis of factsave to say in given case that it falls this side of the lineor that, and because of that decisions on the same pointwill vary as conditions vary, one conclusion in one part ofthe country and another somewhere else; one decision todayand another tomorrow when the basis of society has alteredand the structure of current social thinking is different. Itis not the law that alters but the changing conditions of thetimes and Article 14 narrows down to question of factwhich must be determined by the highest Judges in theland as each case arises. (See on this point Lord Sumner’sline of reasoning in Bowman vs. Secular Society Ltd.,1917 AC 406. Always there is in these cases clash ofconflicting claims and it is the core of the judicial processto arrive at an accommodation between them. Anybody candecide question if only single principle is in issue. Theheart of the difficulty is that there is hardly any questionthat comes before the Courts that does not entail more

Athan one so-called principle. As Judge Leonard Hand ofthe United States Court of Appeals said of the AmericanConstitution.”

5. The aforesaid observations of Justice Vivian Bose, therefore,should always be kept in mind while deciding the question of the natureBarising in every case including the one at hand.

6. As rightly held by brother Lalit J., the issue involved in theseappeals is answered by two decisions of the Constitution Bench of thisCourt, namely, State of Punjab vs. Joginder Singh, 1963 Suppl(2)SCR 169 and Zabar Singh & Ors. vs State of Haryana and Ors.C(1972 ) 2 SCC 275.

7. In my view also, the issue, which is subject matter of theseappeals, has to be decided keeping in view the law laid down by thisCourt in the aforementioned two decisions of the Constitution Bench.

8. I may, at this stage, refer to decision in N. Meera Rani vs.DGovt. of Tamil Nadu & Anr., AIR 1989 SC 2027. In this case, it wasargued that the question involved in the appeal is governed by the decisionof the Constitution Bench in Rameshwar Shaw vs. DistrictMagistrate, Burdwan, AIR 1964 SC 334. It is pertinent to mentionthat the same question was also decided by this Court but it was decidedEsubsequent to the decision of the Constitution Bench in many other cases.The later decisions on the same question were, however, rendered bythe Benches comprised of lesser number of the Judges.

9. Justice J.S. Verma (as His lordship then was), speaking forThree Judge Bench, held that the question involved in the appeal beforethem has to be, therefore, decided in the light of law laid down by theFConstitution Bench because firstly, it is decision rendered by theConstitution Bench; Secondly, it is prior in point of time; and thirdly, thelaw laid down in later decisions has to be read in the light of the law laiddown by the Constitution Bench. This is what His Lordship said inpara 13:G

“13. We may now refer to the decisions on the basis ofwhich this point is to be decided. The starting point is thedecision of Constitution Bench in Rameshwar Shaw v.District Magistrate, Burdwan, AIR 1964 SC 334. Allsubsequent decisions which are cited have to be read inHthe light of this Constitution Bench decision since they are

decisions by Benches comprising of lesser number ofJudges. It is obvious that none of these subsequentdecisions could have intended taking view contrary tothat of the Constitution Bench in Rameshwar Shaw case.”

10. Keeping in view the law laid down in N. Meera Rani (supra),I am of the view that the question involved in these appeals needs to bedecided in the light of the law laid down by two decisions of theConstitution Bench rendered in Joginder Singh (supra) and Zabar Singh(supra).

11. Though the learned counsel for the respondents made sincereattempts on their part in contending that the law laid down in JoginderSingh (supra) and Zabar Singh (supra) has no application to the questioninvolved in these appeals because the facts involved therein are notsimilar to the facts involved in these appeals, we are afraid, we cannotaccept this submission. In my opinion, it is not so.

12. Brother Lalit,J. has dealt with this question elaborately in paras72 to 74 of his opinion. I respectfully concur with his reasoning containedtherein.

13. I am also, therefore, of the view that the appeals deserve tobe allowed and are accordingly allowed. The impugned judgment is setaside and the writ petitions filed by the respondents before the HighCourt are dismissed.

Kalpana K. Tripathy

Appeals allowed.