V.N.Sinha, J.

1. Heard learned Counsel for the parties at length. Bihar Education service Association an Association of the members of Bihar Education service and other members of the said service have filed CWJC No. 10091 of 2006, praying inter alia to quash the resolution of the State Government, bearing Memo. No. 1209 dated, 7.07.2006, Annexure-1, whereunder the State Respondents, in compliance of the different Orders of this Court and the Hon ble Supreme Court referred to in the said resolution, have merged teaching branch of the Bihar Subordinate Education service, male and female with the Bihar Education service Class II in the light of the Resolution No. 3521 F2 dated, 11.04.1977, Annexure-3 with effect from 1.01.1977 on the ground that in compliance of the different Orders of this Court as also of the Hon ble Supreme Court, the members of the teaching branch of the Bihar Sub-ordinate Education service were not entitled for being merged with the Bihar Education service Class II and the impugned resolution has been issued ignoring the contents of the different Orders of this Court and of the Hon ble Supreme Court as also the aforesaid resolution dated, 11.04.1977, which only provide for inclusion of the various posts of teachers of the miscellaneous cadre of Education Department (except the teachers of Netarhat), Stadium Managers etc. in Bihar Education Service, as is evident from Serial No. 7 of Schedule I of the said resolution. In this connection, it was pointed out that various posts referred to in the resolution belong to the miscellaneous cadre of the Education Department as indicated in paragraph 11.10 of the report of the Committee constituted to assess the extent of stagnation prevailing in different State services, Annexure-2, which was the basis for taking the decision contained in the resolution dated, 11.04.1977, Annexure-3. With reference to the compliance report of the Chief Secretary dated, 27.03.2003, Annexure-10, it was submitted that the posts which were to be included in terms of the resolution dated, 11.04.1977, were included in the State services much earlier as would be evident from the said report of the Chief Secretary dated, 27.03.2003, Annexure-10 and in view of the report of the Chief Secretary the impugned Notification dated, 7.07.2006, Annexure-1 should not have been issued at all. In this regard assertions have been made by the Petitioners of CWJC No. 10091 of 2006 in paragraph 25 of the Writ Petition. It was further submitted that merger of the Bihar Sub-ordinate Education Service, teaching branch, male and female cannot be allowed with the Bihar Education service Class II as the two services are inherently different from each other not only in the mode of recruitment but also in the minimum qualification required for entry in the two services as also in the nature, duties of the two services. In this connection reliance was placed on the Judgment of Hon ble Supreme Court in the case of S.P Shivprasad Pipal V/s. Union of India and Ors., 1998 4 SCC 598, in the case of Association for the Officers of the W. B. Audit and Accounts service and Ors. V/s. W. B. Audit and Accounts service Association and Ors., 1995 Supp4 SCC 44, in the case of Inder Singh and Ors. V/s. Vyas Muni and Ors., 1987 Supp SCC 257 and in the case of Hydro-Electric Employees Union, U.P. and Ors. V/s. Sudhir Kumar Sharma and Ors., 1998 6 SCC 706, paragraphs 18 and 19.

2. C.W.J.C. No. 14678 of 2006 has been filed by 51 Petitioners claiming that the Petitioners or their husband were appointed as teacher in the Bihar Sub-ordinate Education Service and they be also allowed the benefit of the higher pay scale of Bihar Education Service Class II in the light of resolution dated, 11.04.1977 in compliance of the different Orders of this Court referred to in the subsequent resolution of the State Government dated, 7.07. 2006 and the State Respondents is not justified in discriminating against them by not including their serv