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SUPREME COURT OF INDIA
K.M. JOSEPH, HRISHIKESH ROY, JJ.
State Of Bihar & Ors. - Appellants
Versus
Shyama Nandan Mishra - Respondent
Civil Appeal Nos.7371, 7364, 7373, 7365, 7368, 7374 of 2014
Decided on : 05-05-2022
(A) Service Law – Service Benefits – +2 lecturers are members of Subordinate Educational Service and State Government must treat +2 lecturers appointed pursuant to Advertisement No. 1/87 as members of Subordinate Educational Service and all service benefits as members of Subordinate Educational Service should be extended to them – +2 lecturers’ posts were created in BSES Cadre – This was represented in Notification (13.11.1985), and also in Advertisement No. 1/87 – Conduct of Government in providing pay scale parity with BSES teachers in secondary schools, reinforces such conclusion – These relevant and attending circumstances eclipse implication of the ex-cadre reference in appointment letters – Encadrement through notification dated 23.06.2009 has frustrated legitimate expectations of respondents and was undertaken with unfair aim to block respondents’ promotion to key positions, particularly in administrative wing of Education department – Such unfairness in State’s action cannot be countenanced by Court – Where substantive legitimate expectation is not ultra vires power of authority and court is in a position to protect it, State cannot be allowed to change course and belie legitimate expectation of respondents – Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government’s action and Bihar government failed to keep to their commitment by impugned decision, which was rightly interdicted by High Court – Appeals dismissed. (Paras 29, 30, 34, 37 and 38)
(B) Bihar Non-Government Secondary Schools (Taken over of Control and Management) Act, 1981 – Sections 9 and 15 – Bihar Education Service Rules, 2014 – Rule 27 – Bihar Government Higher Secondary Schools (Service Conditions) (Amendment) Rules, 2009 – Service conditions of +2 lecturers – Bihar Non-Government Secondary Schools (Taken over of Control and Management) Act, 1981, does not authorize determination of the service conditions of +2 lecturers – 1981 Act was intended to provide for “taking over” of non-government secondary schools under State control, for improvement, better organization and development of Secondary Education in State of Bihar – +2 lecturers in government schools cannot be encadred with teachers of ‘Taken Over Schools’ – Neither Section 9 nor Section 15 of 1981 Act empowers State Government to amend Rules to expand scope of the Act – As such, 2009 Rules, introducing notification (23.06.2009), purported to be framed under Section 9 read with Section 15 of 1981 Act, are found to be at variance with provisions and purpose of 1981 Act – Notification (23.06.2009) is well beyond ambit of 1981 Act, and could not have been issued without necessary amendments to 1981 Act. (Paras 29 and 30)
(C) Administrative Law – Public Orders – Validity of an order by a statutory functionary must be judged by reasons mentioned therein and supplementary reasons in shape of affidavits must be excluded – State must not be allowed to bring in additional explanation to justify their actions when those are conspicuous by their absence, in Government decision. (Paras 25 and 26)
Facts of the case:
Challenge here is to the judgment and order dated 30.4.2013 in CWJC Case No. 18793 of 2008 and analogous cases whereby the Division Bench of the High Court at Patna, granted relief to the writ petitioners and declared that the +2 lecturers, both in Government and the nationalized (taken over) secondary schools, appointed pursuant to Advertisement No.1/87, have always been part of the Bihar Subordinate Education Service (“BSES”) and thereby, they are entitled to be merged with the Bihar Education Service Class II (“BES”), pursuant to Government decision dated 07.07.2006. Court also interfered with the impugned notification dated 23.6.2009, which provided for the encadrement of the +2 lecturers with the teachers in nationalized secondary schools, which was found to be in contravention of Article 790 of the Bihar Education Code and also contrary to the Government’s decision dated 07.07.2006 and Advertisement No. 1/87. Thus, impugned order dated 6.10.2006 and the notification dated 23.6.2009 were quashed and set aside.
Findings of Court:
Writ Petition of respondent was pending for about 6 years in the High Court and those in the BES, who are holding key positions in the education department, could not be oblivious of CWJ Case No. 18793 of 2008 and other connected matters. As such, within the limited scope available to them, the intervenors, who were sitting on fence all along, cannot now be permitted to plead a new case for the first time before this Court.
Result : Appeals dismissed.
JUDGMENT :
Hrishikesh Roy, J.
1. Heard Mr. P.S. Patwalia, learned Senior Counsel appearing for the appellants. Also, heard Mr. Vinay Navare and Mr. V.N. Sinha, learned Senior Counsels appearing for the contesting respondents. The Intervener is represented by Mr. Vijay Hansaria, learned Senior Counsel.
2. The challenge here is to the judgment and order dated 30.4.2013 in CWJC Case No. 18793 of 2008 and analogous cases whereby the Division Bench of the High Court at Patna, granted relief to the writ petitioners and declared that the +2 lecturers, both in the Government and the nationalized (taken over) secondary schools, appointed pursuant to Advertisement No.1/87, have always been part of the Bihar Subordinate Education Service(for short “BSES”)and thereby, they are entitled to be merged with the Bihar Education Service Class II (for short “BES”), pursuant to the Government decision dated 07.07.2006. The Court also interfered with the impugned notification dated 23.6.2009, which provided for the encadrement of the +2 lecturers with the teachers in the nationalized secondary schools, which was found to be in contravention of Article 790 of the Bihar Education Code and also contrary to the Government’s decision dated 07.07.2006 and the Advertisement No. 1/87. Thus, the impugned order dated 6.10.2006 and the notification dated 23.6.2009 were quashed and set aside.
3. At the outset, it is imperative to take note of the relevant background and the previous litigation rounds which led to the present proceedings.
BACKGROUND
4. The Government of Bihar constituted a committee headed by Shri Saran Singh in 1976, to address the problem of stagnation etc. in Bihar Civil Service and to consider opportunities for promotion. The committee’s recommendations with respect to the Bihar Education Department included the integration of 59 posts in the miscellaneous cadre (comprising of teachers, professors, etc, who held isolated posts with no definite prospects of promotion), into the Bihar Education Service Cadre. In line with these recommendations, the Government issued Regulation dated 11.04.1977, upgrading 2465 sanctioned posts of teachers of subordinate education service male and female cadre, into Bihar Education Service Class II w.e.f 01.01.1977.
5. The Association representing the teachers of the BSES filed a writ petition in the Patna High Court claiming merger of their cadre with the BES, pursuant to the resolution dated 11.04.1977. The writ petition was allowed on 02.02.2000 and the subsequent LPA and SLP were dismissed. Since the consequential benefits of the merger were still not forthcoming, another writ petition was filed, which too was allowed and affirmed in the LPA. The civil appeal before this court was dismissed on 19.04.20061[State of Bihar Vs. Janardan Rai, (2012) 13 SCC 59], deciding the outcome in favor of the writ petitioners, i.e., the members of the BSES.
6. In compliance of the aforesaid judgment of this Court, a Resolution dated 07.07.2006 was issued, whereby the cadre of BSES (Teaching Branch) (Male and Female Teachers) was merged with the BES, Class–II w.e.f. 01.01.1977. At this stage, members of the BES Association, apprehending adverse impact on their inter-se seniority, filed a writ petition, challenging the merger. A Single Judge of the High Court allowed the WP on 31.10.20072[Bihar Education Service Assn. Vs. State of Bihar , (2008) 1 BLJR 431]. Immediately after this judgment, the State Government (without waiting for the outcome of the LPA), in compliance of the Single Judge judgment, quashed the merger resolution vide notification dated 19.11.2007, thereby withdrawing the financial benefits flowing therefrom.
7. The decision of the Single Judge was affirmed by the Division Bench. The resultant SLP and the appeal therefrom was ultimately allowed by this Court in a detailed judgment dated 23.11.20123[Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn.,(2012) 13 SCC 33]. Consequently, the
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