Classification between Arts and Science teachers for the purpose of promotion to Grade 4 is arbitrary in the absence of duly constituted separate cadres for them.

S.N.Jha, J.

1. As common questions of fact and law arise for consideration, these two writ petitions have been heard together and are disposed of by common order. The representative facts in so far as relevant to the controversy are, however, taken from CWJC No. 3160 of 1993.

2. The petitioner were appointed as Assistant teachers in the Intermediate trained scale on different dates. In course of time on 21th December, 1990, they were promoted to the Graduate trained scale of Rs. 850-1360 pursuant to the decision of the District Education Establishment Committee in the light of circular No. 2440 dated 18th December, 1984 issued under Sec. 8 of the Bihar Non-Government Elementary Schools (Taking Over of Management and Control) Act, 1976 (in short the Act). Their promotion was challenged in this Court in CWJC 5001 of 1991. The said writ petition was disposed of with direction to the Director, Primary Education, to consider the representation which the petitioners of that case were directed to file. It may be stated here that the aforesaid order was passed on concession of the State Counsel that the order dated 28th December, 1990 was not in accordance with law. The Director, Primary Education, accordingly, heard the parties including the petitioners herein. By order dated 8th/15th January, 1990 he held that as the petitioners were appointed as Science teachers in the ISC trained scale, they can be promoted to only the B. Sc. trained scale and then promotion against posts of B. A. trained scale by the Establishment Committee, therefore, was not in accordance with their rules. Thus, on the aforesaid ground the promotion granted to them to the Graduate trained scale on 28th December, 1990 was cancelled. Consequential orders were issued by the District Superintendent of Education giving rise to these writ petitions.

3. From the above orders of the Director and the counter affidavits it would appear that according to the respondents the Science teachers and Arts teachers belong to and have distinct and separate cadres and, therefore, those appointed as Science teachers and getting the Intermediate (I. Sc.) scale are eligible for the graudate scale only against the post of Science teachers and cannot be considered for the said scale against posts of Arts teachers on their doing the graduation in Arts. The only question for consideration, thus, is whether the Science teachers and Arts teachers have separate cadre or not.

4. The circular dated 18th December, 1984 may first be noticed. The said circular superseding the previous circulars on the point, inter alia fixed the scales of pay and provided that from 1st April, 1981 there would be three separate cadres of Matric trained, Intermediate trained and Graduate trained teachers and three grades known as basic grade, junior selection grade and senior selection grade having different scales of pay in each cadre. It also provided that as the cadres of all three grades i.e. Matric trained, Intermediate trained and Graduate trained teachers were different, each grade will be taken to be separate unit and on that basis 20% and 10% posts in the junior selection grade and senior selection grade respectively, will be filled up, the criteria of promotion being satisfactory service and seniority. In that circular no distinction or classification was made between Arts and Science teachers. In other words, the Intermediate trained teachers had one cadre whether they were Science teachers or Arts teachers. Same was the position with respect to the Graduate trained teachers.

5. The respondents have placed reliance on the Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 (in short the Promotion Rules) framed under Article 309 of the Constitution. According to them the rules having come into effect retrospectively from 1st January, 1986 all cases of promotions to different grades have to be considered in the light of the provisions as contained therein. According to them further,