STATE OF BIHAR & ORS. versus SHYAMA NANDAN MISHRA

[2022] 11 S.C.R.

ASTATE OF BIHAR & ORS.

SHYAMA NANDAN MISHRA

(Civil Appeal No.7364 of 2014)

BMAY 05, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Bihar Non-Government Secondary Schools (Taking over ofControl and Management) Act, 1981 – ss.9, 15 – Bihar Taken overSecondary Schools (Service Conditions) Rules, 1983 – BiharCGovernment Higher Secondary Schools (Service Conditions)(Amendment) Rules, 2009 – Bihar Education Code – Art. 790 –High Court declared that the +2 lecturers, both in the Governmentand the nationalized (taken over) secondary schools, appointedpursuant to adv.no.1/87, were always part of the Bihar SubordinateDEducation Service(BSES) and are entitled to be merged with theBihar Education Service Class II (BES) pursuant to the Governmentdecision dated 07.07.2006 – It also interfered with the impugnednotification dated 23.06.2009 which provided for the encadrementof the +2 lecturers with the teachers in the nationalized secondaryschools, which was found to be in contravention of Art.790 of theEBihar Education Code and also contrary to the Government’sdecision dated 07.07.2006 and the Adv. No. 1/87 – Impugned orderdated 06.10.2006 and the notification dated 23.6.2009 were quashedand set aside – Justification of – Held: +2 lecturers’ posts werecreated in the BSES Cadre – This was represented in the NotificationFdated 13.11.1985, and also in the Adv. No. 1/87 – Conduct of theGovernment in providing pay scale parity with the BSES teachersin the secondary schools, reinforces such conclusion – Theserelevant and attending circumstances eclipse the implication of theex-cadre reference in the appointment letters – The encadrementthrough notification dated 23.06.2009 has frustrated the legitimateGexpectations of the respondents and was undertaken with the unfairaim to block the respondents’ promotion to key positions, particularlyin the administrative wing of the Education department – Suchunfairness in State’s action cannot be countenanced – +2 lecturersare indeed the members of the Subordinate Educational Service –HState Government must treat the +2 lecturers appointed pursuant to

the Advertisement No. 1/87 as members of the SubordinateEducational Service and all service benefits as the members of theSubordinate Educational Service should be extended to them – Noreasons to interfere with the impugned judgment – Service Law.

Doctrines/Principles – Doctrine of Legitimate Expectation –Discussed.

Dismissing the appeals, the Court

HELD: 1.1 It is evident from the Notification dated13.11.1985 that the posts of + 2 lecturers (in the governmentschools) were created in the cadre of BSES, in the pay scale ofRs. 940-1660/-. The cadre for the +2 lecturers posted in thenationalized schools was not specified therein, though the postswere created in the same pay scale. The subsequentAdvertisement No. 1/87 also unequivocally stated that theapplications for +2 Lecturers in Government schools were invitedin the BSES Cadre in the pay scale of Rs. 940- 1660/-. Thoseselected were then granted fortuitous appointment in either thegovernment or the nationalized schools. That the posts wereconstituted in the BSES Cadre is adequately reinforced in thejudgment dated 30.09.1997 in the CWJC No. 2445/1994 byJustice S.J Mukhopadhaya, through which, the artificial distinctionin both categories of +2 lecturers (posted in either Governmentor Taken Over schools) was obliterated. It is fact that the BiharPradesh +2 Lecturers’ Association moved Court primarily forredressal of the pay scale anomaly of the +2 lecturers appointedin the Government and taken over schools, out of the commonadvertisement No. 1/87. It was projected in those proceedingsthat while accepting the 5th Pay Revision Committee’srecommendations, the State Government provided for distinctpay scales to lecturers serving in the Government SecondarySchools and the Nationalized Secondary Schools. The Courtnoticed the discrimination between both sets of lecturers,performing similar duty with similar nature of job and samequalifications. The +2 lecturers accordingly were held entitled tosame scale of pay, i.e., Rs. 2000- 3500/- as fixed for the membersof the Subordinate Education Service (Junior Selection Grade).This way, not only the pay difference was eliminated but moresignificantly for this case, the lecturers serving in Government/

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ANationalized +2 schools were treated as equivalent to membersof the BSES cadre by offering the same pay scale attached to theBSES members. Subsequently, in compliance of the judgment,the Finance Department notified the common pay scale of Rs.2000- 3500/- for the +2 lecturers in the Taken Over schools videits Resolution dated 10.06.1999, thereby effectively treating themBto be at par with the Subordinate Education Service teachers.[Paras 20, 21][1150-B-G]

1.2 The above situation would negate the State’s contentionthat the +2 lecturers are outside the BSES cadre, only becausethe appointment letters stated that their appointment was againstCex-cadre posts on temporary basis. Significantly, the pay scalementioned in the appointment order was Rs. 940-1660/-, whichmatched the pay scale offered to the lecturers in the JuniorSelection Grade of the BSES (as reflected in the notification dated13.11.1985 and the advertisement No. 1/87). The appointmentDletter is at variance with all other relevant documents, such asthe advertisement; the notification (13.11.1985) creating the postsin BSES; as well as the Finance Department notifications, offeringpay scale equivalent to the members of the BSES. Theappointment letters, despite suggesting the post to be of ex-cadrecategory, notably offered the same pay scale attached toEGovernment school lecturers in the BSES Cadre. [Paras 22,23][1150-H; 1151-A-D]1.3 It is also argued by the State’s counsel that therecommendations of the Saran Singh Committee cannot be appliedqua the respondents, since the posts of +2 lecturers were not inFexistence in 1977 and were created only in 1985. On this, it isseen that the government is closemouthed and rather vague onthe total posts which existed in 1977; how many posts werecreated subsequently and the precise number of posts whichexisted as on 07.07.2006. Therefore, the State cannot be allowedGto raise such contentions when they have failed to disclose howmany posts existed initially and the stages at which, additionalposts were created by the government. Besides, the mergerdecision (07.07.2006) pertinently omitted to say that only postsin existence in 1977, were intended to be merged. Moreover,

the Government decision (06.10.2006), through which the +2lecturers were denied the benefit of merger with the BES, wasnot founded on the ground that posts of +2 lecturers were notborne in 1977. The ostensible reason was that the +2 lecturerswere never recognized in the BSES. Such attempt by thegovernment to supplement reasons, not found in their order,cannot legally be permitted. In situation of this kind, the ratio inMohinder Singh Gill Vs. Chief Election Commissioner, New Delhiis worth remembering where the Court so correctly declared thatvalidity of an order by statutory functionary must be judged bythe reasons mentioned therein and supplementary reasons in theshape of affidavits must be excluded. The State must not beallowed to bring in additional explanation to justify their actionswhen those are conspicuous by their absence, in the governmentdecision. [Paras 24-26][1151-E-H; 1152-A-B]

Mohinder Singh Gill Vs. Chief Election Commissioner,New Delhi 1978 (1) SCC 405 : [1978] 2 SCR 272;Commr. of Police, Bombay Vs. Gordhandas Bhanji AIR1952 SC 16 : [1952] SCR 135 – relied on.

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

1.5 Significantly, as per Advertisement 1/87, the lower payscale of Rs. 850 – 1360/- was offered to the teachers in theSecondary Schools in the cadre of BSES as compared to the payscale offered to the + 2 lecturers. Furthermore, the academicqualifications specified therein for + 2 Lecturers was PostGraduation in 2nd division, whereas for other posts, baregraduate would satisfy the prescribed qualification. As such, theexclusion of the respondents from the BSES cadre andconsequently from BES, despite rendering continuous servicesin the same government secondary schools as teacher membersof the BSES, has led to discriminatory situation, wherein, theBSES teachers who are junior (in terms of education qualificationsand pay scale) to the respondents in Government secondary

ABC

Aschools, have got the benefit of higher scale of pay and alsoavenues of promotion to key controlling positions in the educationdepartment. This would surely infringe the rights of the +2lecturers, guaranteed under Article 14 and Article 16(1) of theConstitution. Instead of rectifying the anomalous situation noticedabove, the Government, in rather arbitrary fashion and withoutBany application of mind to the issue, vide notification dated23.06.2009, surprisingly positioned the +2 lecturers at par withthe teachers of the nationalized secondary schools. Theunacceptable justification given for this is that as result of the +2 lecturers’ placement into the cadre of nationalized schoolCteachers, the +2 lecturers have been provided the promotionalavenue to academic posts of Head Master, and higher scale hasalso been provided for them. However, the +2 lecturers areconspicuously denied the opportunities for promotion to keyadministrative posts which is available to those in the BES Cadre.Such arbitrary action of the government in favoring the BESDofficers to enable them to exclusively occupy the keyadministrative posts, was noticed and was subjected to court’scaustic comments in the previous rounds of litigation8. Havingread those and also taking into account the repeated attempts bythe state to inordinately favour those in the BES cadre, we areEconstrained to observe that the state government is not actingbonafide and is persisting in their iniquitous attempt to deny tothe respondents, what is legitimately due to them. [Paras 28,29][1152-G; 1153-A-E]

1.6 The following discriminatory action of the State isFnecessary to be noticed to indicate their iniquitous conduct.Firstly, the Bihar Non-Government Secondary Schools (Takenover of Control and Management) Act, 1981, does not authorizedetermination of the service conditions of the +2 lecturers. The1981 Act was intended to provide for “taking over” of non-government secondary schools under the state control, forGimprovement, better organization and development of SecondaryEducation in the state of Bihar. The +2 lecturers in governmentschools cannot be encadred with teachers of ‘Taken Over Schools’since the definition of ‘Teacher’ in the 1981 Act shows ‘Teacherin the Taken Over Secondary Schools’. Section 9 enables theH

State Government to determine the service conditions of theHeadmaster, Teacher and non-teaching staff of only the TakenOver Secondary Schools(but not of government schools). Neithersection 9 nor Section 15 of the 1981 Act empowers the StateGovernment to amend Rules to expand the scope of the Act. Assuch, the 2009 Rules, introducing the notification (23.06.2009),purported to be framed under section 9 read with section 15 ofthe 1981 Act, are found to be at variance with the provisions andthe purpose of the 1981 Act. The Notification (23.06.2009) iswell beyond the ambit of the 1981 Act, and could not thereforehave been issued, without the necessary amendments to the 1981Act. [Para 30][1153-F-H; 1154-A-B]

1.7 The notification (23.06.2009) besides being legallyuntenable, would also deny the substantive legitimateexpectations, the respondents nurtured, as members of thegovernment schools in the BSES cadre. The denial is particularlyglaring in the absence of promotional avenues for the respondentsto the controlling/supervisory posts in the administrative wing ofthe education department. The respondents, in course of theirservice as +2 Lecturers, would reasonably expect to occupy thehigher position in the department, depending upon their inter-seseniority in the common seniority list, but the Government action,restricting movement through artificial sub-grouping of +2Lecturers with teachers of nationalized schools, have unreasonablybelied their expectation. This would suggest that the respondentswere led up the garden path by the appellants. [Para 31][1154-C-E]1.8 In the present case, the abuse of power is discerniblein the State’s disparate decision in encadring the +2 lecturerswith the teachers of nationalized schools, notwithstanding thecontrary representation through the 1985 notification whichcreated the +2 lecturer posts and the 1987 advertisement underwhich, the respondents entered service. Such manifest departurefrom the projected course smacks of arbitrariness and thegovernment action, to selectively protect the interest of the BEScadre, does not conform to rules of justice and fair play.Wherethe substantive legitimate expectation is not ultra vires the powerof the authority and the court is in position to protect it, the

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AState cannot be allowed to change course and belie the legitimateexpectation of the respondents. As is well known, Regularity,Predictability, Certainty and Fairness are necessary concomitantsof Government’s action and the Bihar government in our opinion,failed to keep to their commitment by the impugned decision,which we find was rightly interdicted by the High Court. [ParasB33, 34][1154-G-H; 1155-A-D]

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

1.9 In the earlier rounds, this court in Bihar State Govt.CSecondary School Teachers Assn. Vs. Bihar Education ServiceAssn. and also in the Contempt proceedings flowing therefromin Bihar State Govt. Secondary School Teachers Assn. Vs. AshokKumar Sinha critically noted the vigorous attempts by the BESAssociation in obstructing the integration of the BSES with theBES and the unfair conduct of the Bihar government inDsafeguarding the interests of those in the BES cadre. Thoseprevious challenges to the merger decision were rejected by theCourt. As such the BES Association, as the party watching fromthe wings, cannot be permitted to secure now what they failed toachieve in the previous litigations. In circumstances like this itEneeds to be said that in an adversarial litigation, the fence sitterscannot be placed at par with the front runners. [Para 36][1156-A-C]

1.10 The +2 lecturers’ posts were created in the BSESCadre. This was represented in the Notification (13.11.1985), andalso in the Advertisement No. 1/87. The conduct of theFGovernment in providing pay scale parity with the BSES teachersin the secondary schools, reinforces such conclusion. Theserelevant and attending circumstances eclipse the implication ofthe ex-cadre reference in the appointment letters. What is alsodiscernible is that the encadrement through notification datedG23.06.2009 has frustrated the legitimate expectations of therespondents and was undertaken with the unfair aim to block therespondents’ promotion to key positions, particularly in theadministrative wing of the Education department. Such unfairnessin State’s action cannot be countenanced by Court. Resultantly

we record our approval with the reasoning and conclusions inthe impugned judgment in favour of the +2 lecturers to the effectthat they are indeed the members of the Subordinate EducationalService and the State Government must treat the +2 lecturersappointed pursuant to the Advertisement No. 1/87 as membersof the Subordinate Educational Service and all service benefitsas the members of the Subordinate Educational Service shouldtherefore be extended to them. [Para 37][1156-C-F]

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

Bihar Education Service Assn. Vs. State of Bihar , (2008)1 BLJR 431 – referred to.

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

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7364of 2014.

From the Judgment and Order dated 30.04.2013 of the High Courtof Patna at Patna in CWJC No.18793 of 2008.

With

Civil Appeal Nos.7371, 7373, 7365, 7368 And 7374 of 2014.

P. S. Patwalia, Sr. Adv., Abhinav Mukerji, Ms. Pratishtha Vij, Ms.Bihu Sharma, Advs. for the Appellants.

AVijay Hansaria, V. N. Sinha, Vinay Navare, Sr. Advs., Ms. SharmilaUpadhyay, Akhilesh Kumar Pandey, Ms. Shalini Chandra, ShantanuSagar, Gunjesh Ranjan, Anil Kumar, Satyajeet Kumar, Ms. GwenKarthika, Ms. Divya Roy, Advs. for the Respondent.

The Judgment of the Court was delivered by

BHRISHIKESH ROY, J.

1. Heard Mr. P.S. Patwalia, learned Senior Counsel appearing forthe appellants. Also, heard Mr. Vinay Navareand Mr. V.N. Sinha, learnedSenior Counsels appearing for the contesting respondents. The Interveneris represented by Mr. Vijay Hansaria, learned Senior Counsel.

2. The challenge here is to the judgment and order dated 30.4.2013Cin CWJC Case No. 18793 of 2008 and analogous cases whereby theDivision Bench of the High Court at Patna, granted relief to the writpetitioners and declared that the +2 lecturers, both in the Governmentand the nationalized (taken over) secondary schools, appointed pursuantto Advertisement No.1/87, have always been part of the BiharDSubordinate Education Service(for short “BSES”)and thereby, theyare entitled to be merged with the Bihar Education Service Class II(for short “BES”), pursuant to the Government decision dated 07.07.2006.The Court also interfered with the impugned notification dated 23.6.2009,which provided for the encadrement of the +2 lecturers with the teachersin the nationalized secondary schools, which was found to be inEcontravention of Article 790 of the Bihar Education Code and also contraryto the Government’s decision dated 07.07.2006 and the AdvertisementNo. 1/87. Thus, the impugned order dated 6.10.2006 and the notificationdated 23.6.2009 were quashed and set aside.

3. At the outset, it is imperative to take note of the relevantFbackground and the previous litigation rounds which led to the presentproceedings.

BACKGROUND

4. The Government of Bihar constituted committee headed byShri Saran Singh in 1976, to address the problem of stagnation etc. inBihar Civil Service and to consider opportunities for promotion. TheGcommittee’s recommendations with respect to the Bihar EducationDepartment included the integration of 59 posts in the miscellaneouscadre (comprising of teachers, professors,etc, who held isolated postswith no definite prospects of promotion), into the Bihar EducationService Cadre. In line with these recommendations, the GovernmentHissued Regulation dated 11.04.1977, upgrading 2465 sanctioned posts of

teachers of subordinate education service male and female cadre, intoBihar Education Service Class II w.e.f01.01.1977.

5. The Association representing the teachers of the BSES filed awrit petition in the Patna High Court claiming merger of their cadre withthe BES, pursuant to the resolution dated 11.04.1977. The writ petitionwas allowed on 02.02.2000 and the subsequent LPA and SLP weredismissed. Since the consequential benefits of the merger were still notforthcoming, another writ petition was filed, which too was allowed andaffirmed in the LPA. The civil appeal before this court was dismissed on19.04.2006[1], deciding the outcome in favor of the writ petitioners, i.e.,the members of the BSES.6. In compliance of the aforesaid judgment of this Court, aResolution dated 07.07.2006 was issued, whereby the cadre of BSES(Teaching Branch) (Male and Female Teachers) was merged with theBES, Class–II w.e.f. 01.01.1977. At this stage, members of the BESAssociation, apprehending adverse impact on their inter-se seniority, fileda writ petition, challenging the merger. Single Judge of the High Courtallowed the WP on 31.10.2007[2]. Immediately after this judgment, theState Government (without waiting for the outcome of the LPA),incompliance of the Single Judge judgment, quashed the merger resolutionvide notification dated 19.11.2007, thereby withdrawing the financialbenefits flowing therefrom.

7. The decision of the Single Judge was affirmedby the DivisionBench. The resultant SLP and the appeal therefrom was ultimatelyallowed by this Court ina detailed judgment dated 23.11.2012[3].Consequently, the initial government decision (07.07.2006), by whichthe cadre of the BSES teachers (teaching branch)was merged with theBES, stood restored and the State was directed to act accordingly. Inarriving at the conclusion, the Supreme Court pertinently observed thatonce the merger decision was already upheld by this court in earlierrounds of litigation and was also acted upon by the State, the High Courtshould not have reopened the matter at the instance of the BESAssociation. The fluctuating stand and indecisiveness of the governmentwas also noted with displeasure by the Supreme Court in its judgment.

8. The government, however, was dilly-dallying on the aspect ofrestoration of the earlier position, consequent upon the merger of the

1State of Bihar Vs. Janardan Rai ,(2012) 13 SCC 59

2Bihar Education Service Assn. Vs. State of Bihar , (2008) 1 BLJR 431

3Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education ServiceAssn.,(2012) 13 SCC 33

Atwo cadres. Ultimately, contempt proceedings were initiated by thedisgruntled members of the BSES in Bihar State GovernmentSecondary School Teachers Association Vs. Ashok Kumar Sinha[4],wherein this court had the occasion to observe that the Bihar EducationService Rules, 2014 were in the teeth of the judgment rendered on23.11.2012[5]. This was because the Government had introduced four sub-Bcadres in the BES (merged entity) under 2014 Rules, conspicuouslybarring transfer from one sub-cadre into another. Those in the BSESwere placed in the teaching sub-cadre, where Principal would be thehighest promotional post whereas those in the BES were put inadministrative sub-cadre, who would continue to control the schoolCadministration as before. The teaching sub-cadre was yet again isolatedand also treated as “dying cadre”. Through this act of the government,those in the BSES were effectively prevented from being transferredand posted in the administrative sub-cadre. Glaringly, Rule 27 gave optionto members of the other sub-cadres for inclusion in different cadre onfulfillment of prescribed qualifications, but no such option was madeDavailable to the teaching sub-cadre.

9. Noticing the above attempt to deny equal benefits to the BSEScadre vis-à-vis the BES cadre, the Supreme Court significantly observedthat the promulgation of the 2014 Rules by the Bihar government,amounted to circuitous contrivance, to maintain the position which existedprior to the merger and to unjustly protect the interest of those in theEBES. Accordingly, directions were issued to revive the combined gradationlist or in the alternative, to suitably amend Rule 27 to give effect to thereal purpose of the merger.

PRESENT LITIGATION

10. The facts germane to the present appeal are now to be noted.FThe Bihar Government in 1979 introducedthe 10+2+3 education pattern(i.e. 10 years of schooling, 2 years of higher secondary and 3 years ofcollege graduation). At the relevant time, in the absence of sufficientinfrastructure, higher secondary education was imparted by colleges.Theposts of +2 lecturers were sought to be created to impart +2 level teaching.G11. Pursuant to the above decision,the BiharGovernment on13.11.1985sanctioned 148 posts of lecturers in Subordinate ServiceSelection Grade for government schools and264 posts of lecturers innationalized schools, providing common pay scale of Rs. 940-1660 for

4 (2014) 7 SCC 4165SupraH

both categories of lecturers. It may be highlighted that only the posts ofthe +2 lecturers in the Government schools were specified to be in theBSES Selection Grade. Thereafter, the Bihar School Service Board issuedthe advertisement No. 1/87, initiating the process of selection. Theadvertisement, pertinently, reflected the following:-

“Class – I:

Lecturers in the Subordinate Service Grade in the +2 Stream (Interlevel) Government Boys/Girls High Schools.

Academic Qualification:

For the Cass – I posts: Second class Post Graduation Degree inthe concerned subject from recognized university.

For the Class -II and III posts of the Subordinate Education Service(Education Branch) for both male and female categories:Trained graduate in the concerned Subject.” (SIC)

********

The candidates were to apply for posts of lecturer in theSubordinate service grade and the advertisement prescribed PostGraduation in 2[nd] division, as necessary qualification for the posts.

12. The selected candidates were then issued the appointmentorders, which reflected that the appointments were being made to newlycreated ex-cadre posts in +2 schools, on ad-hoc and temporary basis.These temporary appointments werecontinued for succeeding academicyears under various government notifications, issued from time to time.

13. The main cause for the present litigation is that whileimplementing the merger decision (07.07.2006), an exception was carvedout by the government on 06.10.2006, whereunder, the benefit of mergerinto BES was denied to the +2 lecturers in Government schools. Theostensible premise for the deviation was that the +2 lecturers were nevertreated or recognized as part of the BSES cadre. The +2 lecturersbeingaggrieved thus, moved the High Court in CWJC 14009/2006 and otherconnected writ petitions, contending that their posts were created in theBSES. This position was also reflected in the advertisement No. 1/87through whichthey were recruited.In effect, the benefits of the mergerwith the BESwere claimed in these matters.

14. During the pendency of the above Writ Petitions in the HighCourt, the State Government on 23.06.2009, in exercise of powers underSection 9 read with Section 15 of the Bihar Non-Government

ASecondary Schools (Taking over of Control and Management) Act,1981, framed the Bihar Government Higher Secondary Schools(Service Conditions) (Amendment) Rules, 2009 (for short “2009Rules”)and notably decided to amend the Bihar Taken- over SecondarySchools (Service Conditions) Rules, 1983.Through the 2009amendment, the lecturer was defined to mean the +2 lecturers whoBwere appointed pursuant to the Advertisement No. 1/87 and they wereencadred with the nationalized secondary school teachers.

15. As result of the aboveencadrement with the teachers of thenationalized school category, further challenge was generated in the HighCourt by the +2 lecturers.It was specifically contended that the +2Clecturers have always been treated as above the secondary schoolteachers in nationalized schools and therefore encadrement of the twounequals is unjust.

16. The High Court in the impugned judgment categorically heldthat the +2 lecturers who were appointed pursuant to AdvertisementNo. 1/87, were always part of the BSES. Concomitantly, the artificialDgrouping of +2 lecturers with the teachers of nationalized schools (videnotification 23.06.2009), was found to be unjustified and interdicted. Whileconcluding thus, the High Court noted that Advertisement No.1/87specifically mentioned Subordinate Education Service.Besides the “plustwo secondary schools”, where the lecturers were imparting education,Ewere envisaged as part of the BSES as was clearly discernable fromArticle 790 of the Bihar Education Code. While opining in favour of thepresent respondents, the Court relied upon the earlier judgment(30.9.1997) of Justice S.J. Mukhopadhaya in CWJC No. 2445/1994 tosay that postings in either the government or nationalized schools at therelevant time were fortuitous and the rights of +2 lecturers would notFdepend on their chance postings in either of the schools. The DivisionBench also gathered that mere reference to ex-cadre posts in theappointment letters and lack of decision by government in assimilatingthe + 2 lecturers into the cadre of mainstream teacher, will not deprivethem of their legitimate rights. The Court took dim view of theindecisiveness and fluctuating stand of the Bihar government which ledGto spate of litigations.Thus, relief was granted to the respondents withthe declaration that the +2 lecturers of both schools, who were appointedunder the Advertisement no. 1/87, have always been part of the BSESand consequently of the BES.

17. Challenging the impugned judgment, Mr. P.S. Patwalia, learnedHsenior counsel in the appeal arising out of the lead SLP, submits for the

State of Bihar that the appointment letters specifically mention that the+2 Lecturers were appointed in Ex Cadre Posts and the decision withrespect to their separate cadre formation was to be taken shortly. Further,the posts of + 2 lecturers were not in existence in 1977, when the policydecision to merge BSES with BES was taken. According to Mr. Patwalia,the encadrement is in conformity with the Bihar Non-GovernmentSecondary Schools (Taking over of Control and Management) Act,1981, since the recruitment of the + 2 lecturers was made by the SchoolService Board which is statutory body formed under section 10 of theAct. Appellant’s nextsubmission is that in previous rounds of litigation,the respondents sought only pay scale parity with members of the BSESand as such, the Writ Petition in the High Court in the current roundisbarred by the principles of constructive res judicata besides inordinatedelay.The reference to the BSES, Selection Grade in theAdvertisement,according to the State’s counsel,was made only to identifythe grade for the post of lecturers but not for the purpose of their inclusioninto the BSES cadre.18. On the other hand, Mr. Vinay Navare, learned Senior Counselappearing on behalf of the + 2 lecturers (respondents) would argue thatthe terms of the policy decision dated 13.11.1985 as well as theAdvertisement No. 1/87 are unambiguous and it is clearly set out thatthe posts of + 2 lecturers in Government schools are createdin the JuniorSelection Grade of BSES. According to Mr. Navare, the expression ex-cadre in the appointment order was incorporated only to allay the anxietyof the Assistant Teachers in the Government Secondary Schools(members of the BSES), who because of merger, apprehended loss oftheir seniority to the +2 lecturers. The 1981 Act controls taking over ofNon-government Secondary Schools and the notification introduced bythe 2009 Rules, framed under the 1981 Act, for encadrement of the +2lecturers of the Government schools with the nationalized schools, withoutthe relevant amendments to the 1981 Act, is argued by Mr. Navare to beneither conclusive nor legally acceptable.

19. In his turn, Mr. Vijay Hansaria, the learned Senior Counselrepresenting the interveners i.e. the Bihar Education Service Associationarguesthat the members of the BES Association should not lose out onseniority, on account of the merger of the contesting respondents intothe BES Cadre, from the initial date of their appointment. This is apartfrom pointing to the Bihar Education Service Class-I and Bihar EducationService Class-II Rules 1973 and submitting that unless due rules areamended, neither executive action nor court orders can be way out.

AHe further contended that the matter falls in the realm of state policy.Theaspect of the appointments being ex-cadre is stressed.

DISCUSSIONS AND FINDINGS

20. It is evident from the Notification dated 13.11.1985 that theposts of + 2 lecturers (in the government schools) were created in theBcadre of BSES, in the pay scale of Rs. 940-1660/-. The cadre for the +2lecturers posted in the nationalized schools was not specified therein,though the posts were created in the same pay scale. The subsequentAdvertisement No. 1/87 also unequivocally stated that the applicationsfor +2 Lecturers in Government schools were invited in the BSES Cadrein the pay scale of Rs. 940- 1660/-. Those selected were then grantedCfortuitous appointment in either the government or the nationalizedschools.

21. That the posts were constituted in the BSES Cadre is adequatelyreinforced in the judgment dated 30.09.1997 in the CWJC No. 2445/1994 by Justice S.J Mukhopadhaya, through which, the artificial distinctionDin both categories of +2 lecturers (posted in either Government or TakenOver schools) was obliterated. It is fact thatthe Bihar Pradesh +2Lecturers’ Association moved Court primarily for redressal of the payscale anomaly of the +2 lecturers appointed in the Government and takenover schools, out of the common advertisement No. 1/87. It was projectedin those proceedings that while accepting the 5[th] Pay RevisionECommittee’s recommendations, the State Government provided fordistinct pay scales to lecturers serving in the Government SecondarySchools and the Nationalized Secondary Schools. The Court noticed thediscrimination between both sets of lecturers, performing similar dutywith similar nature of job and same qualifications. The +2 lecturersaccordingly were held entitled to same scale of pay, i.e., Rs. 2000-3500/F- as fixed for the members of the Subordinate Education Service (JuniorSelection Grade). This way, not only the pay differencewas eliminatedbut more significantly for this case,the lecturers serving in Government/Nationalized +2 schools were treated as equivalent to members of theBSES cadre by offering the same pay scale attached to the BSESmembers. Subsequently, in compliance of the judgment, the FinanceGDepartment notified the common pay scale of Rs. 2000- 3500/- for the+2 lecturers in the Taken Over schools vide its Resolution dated10.06.1999,therebyeffectively treating them to be at par with theSubordinate Education Service teachers.22. The above situation would negate the State’s contention thatHthe +2 lecturers are outside the BSES cadre, only because the

appointment letters stated that their appointment was against ex-cadreposts on temporary basis. Significantly, the pay scale mentioned in theappointment order was Rs. 940-1660/-, which matched the pay scaleoffered to the lecturers in the Junior Selection Grade of the BSES (asreflected in the notification dated 13.11.1985 and the advertisement No.1/87).

23. Thenoteworthy take awayfrom above is that the appointmentletter is at variance with all other relevant documents, such as theadvertisement; the notification (13.11.1985)creating the posts in BSES;as well as the Finance Department notifications, offering pay scaleequivalent to the members of the BSES. The appointment letters, despitesuggesting the post to be ofex-cadre category, notably offered the samepay scale attached to Government school lecturers in the BSES Cadre.The learned counsel for the respondents on this aspectthereforeappearsto be correct in his submission that the reference to ex-cadre in theappointment letters was only to allay the anxiety of the Assistant Teachersin the Government Secondary Schools (members of the BSES), whoapprehended loss of their seniority. In such circumstances, the ex-cadrereference in the appointment letters must not,in ourview,eclipse all theother contemporaneous documents, supporting the contentions of therespondents.

24.It is also argued by the State’s counsel that therecommendations of the Saran Singh Committee cannot be applied quathe respondents, since the posts of +2 lecturers were not in existence in1977 and were created only in 1985. On this, it is seen that the governmentis closemouthed and rather vague on the total posts which existed in1977; how many posts were created subsequently and the precise numberof posts which existed as on 07.07.2006. Therefore, the State cannot beallowed to raise such contentions when they have failed to disclose howmany posts existed initially and the stages at which, additional postswere created by the government. Besides, the merger decision(07.07.2006)pertinently omitted to say that only posts in existence in1977, were intended to be merged.

25. Moreover, the Government decision (06.10.2006), throughwhich the +2 lecturers were denied the benefit of merger with the BES,was not founded on the ground that posts of +2 lecturers were not bornein 1977. The ostensible reason was that the +2 lecturers were neverrecognized in the BSES. Such attempt by the government to supplementreasons,not found in their order,cannot legally be permitted. In situationof this kind, the ratio in Mohinder Singh Gill Vs. Chief Election

ACommissioner, New Delhi[6 ]is worth remembering where the Courtsocorrectlydeclared that validity of an order by statutory functionarymust be judged by the reasons mentioned therein and supplementaryreasons in the shape of affidavits must be excluded.

26. Staying with the same point,we may also remind ourselves ofthe telling opinion in Commr. of Police, Bombay Vs. GordhandasBBhanji[7] where J. Vivian Bose illuminatingly wrote as under:

“Public orders, publicly made, in exercise of statutoryauthority cannot be construed in the light of explanationssubsequently given by the officer making the order of whathe meant, or of what was in his mind, or what he intended toCdo. Public orders made by public authorities are meant tohave public effect and are intended to affect the actings andconduct of those to whom they are addressed and must beconstrued objectively with reference to the language used inthe order itself.”DTaking cue from above, it must besaid unequivocallythat theState must not be allowed to bring in additional explanation to justifytheir actions when those are conspicuous by their absence, in thegovernment decision.27. The appellants’other contention is that the +2 lecturers haveno semblance of similarity with the BSES, to enable assimilation into theEBES. Only for this ostensible reason, the +2 lecturers in nationalized andGovernment schools were amalgamated with the teachers of nationalizedschools, vide notification dated 23.06.2009. On this, what is relevant isthat no intelligible differentia could be pointed out by the state’s counselto sustain such arbitrary classification between +2 lecturers and the BSESsecondary level teachers,posted in government schools. Therefore, suchFcontention from the appellants’ side, being devoid of any foundation, isconsidered butrejected.

28. Significantly, as per Advertisement 1/87, the lower pay scaleof Rs. 850 – 1360/- was offered to the teachers in the Secondary Schoolsin the cadre of BSES as compared tothe pay scale offered to the + 2Glecturers. Furthermore, the academic qualifications specified therein for+ 2 Lecturers was Post Graduation in 2[nd] division, whereas for otherposts, bare graduate would satisfy the prescribed qualification.As such,the exclusion of the respondents from the BSES cadre and consequently

6 1978 (1) SCC 405H7 AIR 1952 SC 16

from BES, despite rendering continuous services in the same governmentsecondary schools as teacher members of the BSES, has led to adiscriminatory situation, wherein, the BSES teachers who are junior (interms of education qualifications and pay scale) to the respondents inGovernment secondary schools, have got the benefit of higher scale ofpay and also avenues of promotion to key controlling positions in theeducation department. This would surely infringe the rights of the +2lecturers, guaranteed under Article 14 and Article 16(1) of theConstitution.

29.Instead of rectifying the anomalous situation noticed above,the Government, in rather arbitrary fashion and without any applicationof mind to the issue, vide notification dated 23.06.2009, surprisinglypositioned the +2 lecturers at parwith the teachers of the nationalizedsecondary schools.The unacceptable justification given for this is that asa result of the + 2 lecturers’ placement into the cadre of nationalizedschool teachers, the +2 lecturers have been provided the promotionalavenue to academic postsof Head Master, and higher scale has alsobeen provided for them. However, the +2 lecturers are conspicuouslydenied the opportunities for promotion to key administrative posts whichisavailable to those in the BES Cadre. Such arbitrary action of thegovernment in favoring the BES officers to enable them to exclusivelyoccupy the key administrative posts, was noticed and was subjected tocourt’s caustic comments in the previous rounds of litigation[8]. Havingread those and also taking into account the repeated attempts by thestate to inordinately favour those in the BES cadre, we are constrainedto observe that the state government is not acting bonafide and is persistingin their iniquitous attempt to deny tothe respondents,what is legitimatelydue to them.

30. The following discriminatory action of the State is necessaryto be noticed to indicate their iniquitous conduct. Firstly, the Bihar Non-Government Secondary Schools (Taken over of Control andManagement) Act, 1981, does not authorize determination of the serviceconditions of the +2 lecturers. The 1981 Act was intended to provide for“taking over” of non-government secondary schools under the statecontrol, for improvement, better organization and development ofSecondary Education in the state of Bihar. The +2 lecturers ingovernment schools cannot be encadred with teachers of ‘Taken OverSchools’ since the definition of ‘Teacher’ in the 1981 Act shows ‘Teacherin the Taken Over Secondary Schools’. Section 9 enables the State

8 See discussion Supra Note 4

ABC

AGovernment to determine the service conditions of the Headmaster,Teacher and non-teaching staff of only the Taken Over Secondary Schools(but not of government schools). Neither section 9 nor Section 15 of the1981 Act empowers the State Government to amend Rules to expandthe scope of the Act. As such, the 2009 Rules, introducing the notification(23.06.2009), purported to be framed under section 9 read with sectionB15 of the 1981 Act, are found to be at variance with the provisions andthe purpose of the 1981 Act. The Notification (23.06.2009) is well beyondthe ambit of the 1981 Act, and could not therefore have been issued,without the necessary amendments to the 1981 Act.

31. Next, let us test the impugned action of the Government onCthe anvil ofthe Doctrine of Legitimate Expectation.The notification(23.06.2009) besidesbeing legally untenable,would also deny thesubstantive legitimate expectations, the respondents nurtured,as membersof the government schools in the BSES cadre. The denial is particularlyglaring in the absence of promotional avenues for the respondents to thecontrolling/supervisory posts in the administrative wing of the educationDdepartment. The respondents, in course of their service as +2 Lecturers,would reasonablyexpect to occupy the higher position in the department,depending upon their inter-se seniority in the common seniority list, butthe Government action, restricting movement through artificial sub-grouping of +2 Lecturers with teachers of nationalized schools,haveunreasonably belied their expectation. This would suggest that theErespondents were led up the garden path by the appellants.32. To understand the legal consequences arising therefrom, usefulreference can be made toR. V. Inland Revenue Commissioners, exparte M.F.K. Underwriting Agents Ltd.[9] (1989) where Lord Justiceof Appeal, Thomas Bingham, while invoking fairness as rationale forprotecting legitimate expectations,expressed the following :-F“If public authority so conducts itself as to create legitimateexpectation that certain course will be followed it wouldoften be unfair if the authority were permitted to follow adifferent course to the detriment of one who entertained theexpectation, particularly if he acted on it. ... The doctrine ofGlegitimate expectation is rooted in fairness.”33. Another facet of denial of legitimate expectations isunderscored by theCourt of Appeal of England and Walesin the seminalcase of Coughlan[10], where the Court preferred to use abuse of power

9 [1990] 1 W.L.R 1545H10 R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213

as one of the criteria for testing whether public body could resile froma prima facie legitimate expectation. In the Court’s opinion, if thegovernment authority induced an expectation which was substantive,the upsetting of that expectation, through departure from the expectedcourse of action in the absence of compelling public interest, would beso unfair, that it would amount to abuse of power. In the present case,the abuse of power is discernible in the State’s disparate decision inencadring the +2 lecturers with the teachers of nationalized schools,notwithstanding the contrary representation through the 1985 notificationwhich created the +2 lecturer posts and the 1987 advertisement underwhich, the respondents entered service. Such manifest departure fromthe projected course smacks of arbitrariness and the government action,to selectively protect the interest of the BES cadre, does not conform torules of justice and fair play.34. Taking cue from above, where the substantive legitimateexpectation is not ultra vires the power of the authority and the court isin position to protect it, the State cannot be allowed to change courseand belie the legitimate expectation of the respondents. As is well known,Regularity, Predictability, Certainty and Fairness are necessaryconcomitants of Government’s action and the Bihar government in ouropinion, failed to keep to their commitment by the impugned decision,which we find was rightly interdicted by the High Court.

35. Next thing to consider is the plea of the BES Association asthe Intervenor in this proceeding and the submissions made on theirbehalf by the learned senior counsel Mr. Vijay Hansaria. On this, thefirst observation to be made is that the rights of an intervener arecircumscribed. The BES could have arrayed themselves in the HighCourt but decided at their own peril, to keep away. The Writ Petition ofthe respondent was pending for about 6 years in the High Court andthose in the BES, who are holding key positions in the educationdepartment, could not be oblivious of CWJ Case No. 18793 of 2008 andother connected matters. As such, within the limited scope available tothem, the intervenors,who were sitting on the fence all along, cannotnow be permitted to plead new case for the first time before thisCourt. Moreover, the Counter Affidavit filed by the State before theHigh Court,do not persuade us to lean in favour of the members of theBES Association.

36. In the earlier rounds, this court in Bihar State Govt. SecondarySchool Teachers Assn. Vs. Bihar Education Service Assn.[11]and also11Supra

ABC

Ain the Contempt proceedings flowing therefrom in Bihar State Govt.Secondary School Teachers Assn. Vs. Ashok Kumar Sinha[12 ]criticallynoted the vigorous attempts by the BES Association in obstructing theintegration of the BSES with the BES and the unfair conduct of theBihar government in safeguarding the interests of those in the BEScadre.Those previous challenges to the merger decision were rejectedBby the Court.As such the BES Association,as the party watching fromthe wings, cannot be permitted to secure now what they failed to achievein the previous litigations.In circumstances like this it needs to be saidthat in an adversarial litigation, the fence sitters cannot be placed at parwith the front runners.C37. In consequence of the foregoing discussion, our finding isthatthe +2 lecturers’ posts were created in the BSES Cadre.This wasrepresented in the Notification (13.11.1985), and also in the AdvertisementNo. 1/87. The conduct of the Government in providing pay scale paritywith the BSES teachers in the secondary schools, reinforces suchconclusion. These relevant and attending circumstances eclipse theDimplication of the ex-cadre reference in the appointment letters.What isalso discernible is that the encadrement through notification dated23.06.2009 has frustrated the legitimate expectations of the respondentsand was undertaken with the unfair aim to block the respondents’promotion to key positions, particularly in the administrative wing of theEducation department.Such unfairness in State’s action cannot beEcountenanced by Court.Resultantly we record our approval with thereasoning and conclusions in the impugned judgment in favour of the +2lecturers to the effect that they are indeed the members of the SubordinateEducational Service and the State Government must treat the +2 lecturersappointed pursuant to the Advertisement No. 1/87 as members of theFSubordinate Educational Service and all service benefits as the membersof the Subordinate Educational Serviceshould therefore be extended tothem.

38. Accordingly, no good reasons are seen to interfere with theimpugned judgment. The appeals stand dismissed without any order oncosts. However, since the time stipulated by the High Court has expired,Gthe State is granted 6 months’ time to ensure compliance with HighCourt’s direction in letter and spirit.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeals dismissed.

H12Supra