JUDGMENT

RANGANATH MISRA, J. :— This appeal by special leave is directed against the decision of the Patna High Court dated 27-11-1987 (reported in 1989 Lab IC 117) quashing the notification dated 18-11-1986 under which in terms of the Subordinate Education Service (Teaching Branch) Determination of Seniority Rules framed under the proviso to Art. 309 of the Constitution, the nitherto single cadre known as Secondary Education Service was bifurcated.

2. On 20th of February, 1975, the State Government published a joint seniority list of teachers of Subordinate Education Service belonging to the Boys school branch and the Higher Secondary Teachers of the Subordinate Education Service. The joint gradation list was challenged before the High Court in Writ Petition No. 2956 of 1975. The High Court dismissed the writ petition as also an application for review of such dismissal. On 30th of March, 198 1, this Court dismissed the special leave petition carried against the decision of the High Court. When with the dismissal of the special leave petition the position was getting settled, the State Minister of Education came forward with a proposal that the cadre should be separated and the Higher Secondary Teachers and Secondary Teachers of the Upper Division of the Subordinate Education Service should have a, separate gradation list. Ultimately by the impugned notification the bifurcation was done. The Government took the stand that the demand to bifurcate was taken up in the Legislature and in terms of the decision &ken by the Implementation Committee of the Bihar Legislative Council, the new scheme to bifurcate came to be done.

3. The High Court considered matter at great length and with care. The legal position as settled by Several decisions of this Court was noticed. Towards the end of the judgment the High Court has said (1989 Lab IC 117 at p. 131)

"We have referred to the judgment of the SC in K. S. Vora v. State of Gujarat (AIR 1987 SC 2348). only to illustrate that the courts have at no time ignored the interest of the employees and questioned the authority of the State to frame rules in terms of the proviso to Art. 309 of the Constitution of India, but the courts have always taken notice of the fact that those who stood together and fell in line to proceed further have to be provided all opportunities in respect of their avenues of promotion alike without breaking that order. so that one who ranks higher in the grade may not go down in due course of service. It is in this context that we have no hesitation in holding that rules in the notification dated 18-11-1985 are ultra vires Arts. 16(1) and 14 of the Constitution.

We do not propose to predicate into what is alleged to be the mala fide of the respondent State inasmuch as after the judgment of this Court, in C.W.J.C. No. 2956 of 1975, the Minister of State decided to find means to disintegrate the already integrated cadre or the Chairman of the Legislative Council, having no apparent role in the process of making rules in terms of proviso to Art. 309 of the Constitution appeared and influenced the process. We refrain from going into this aspect, for we think, with our conclusion as above, the upper division of the Subordinate Education Service shall continue to have the same respect as it got from the judgment of this Court in C.W.J.C. No. 2956 of 1975 and 40 one in the Government shall in future again attempt to deny to the members of the said service their due rights for promotion to the selection grade and other higher posts."

4. In course of hearing of the matter, counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who wore lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits. The High Court, in our opinion, rightly found fault with such action.

5. We have considere