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PATNA HIGH COURT
Dipak Misra and Mihir Kumar Jha JJ.
Bihar State Government Secondary School Teacher S Association, Through Its General secretary, Bishwa Mohan Kumar Singh Son Of Late Rajeshwar Pd.Singh
Versus
Bihar Education Service Association, Patna Through Its General Secretary, Sri Raghuvansh Kumar
IA No. 418 of 2009 974 of 2007 947 of 2007 946 of 2007 941 of 2007
CWJC No. 8679 of 2002
MJC No. 251 of 2001
Decided On : MAY 21, 2010
Contempts of Courts Act, 1971-Section 2-Notings in file does not constitute contempt-officers have rights to record their views in the file-Courts are not supposed to examine the contents of the file to make out a case of contempt. (Para 55)
AIR 1987 SC 1554, (2008)11 SCC 139 -Relied upon.
Constitution of India-Article 215-Order passed in contempt Jurisdiction in excess of original order passed-scope of direction-It is not open to the court exercising power of contempt to enlarge the scope of original order-Writ court directing merger of the posts of teachers of SES in BES Class II went beyond its jurisdiction in passing such orders as in the main order no where remotely held that the resolution of Finance Department dated 11.4.1977 was meant exclusively for the posts teachers of SES to be merged in BES class II-Notification of merger dated 7.7.2006 came into existence on account of threat of contempt which affected the right of the members of BES they had a right to challenge it, as they were not party to the earlier litigations launched by members of the SES. Any order passed by authority under threat can not bind the third party adversely affected by it.
(Paras 60 to 62)
(1997)9 SCC 640, (1995) Supp (3) SCC 188 -Relied upon.
Bihar Education Code, 1961-Articles 775 to 803-Code dealing separately with different services of Education Department and it becomes clear that BES is State Service-Number of post, mode of appointments promotion and pay scales have been separately dealt with-For both services, government resolution of merger dated 11.4.1977 was meant only for State Service Cadre-Officers in no way relate to teachers of SES and had been issued only to remove the stagnation for such incumbents of State Service who were stagnating and had not any source of promotion-Thus on a combined reading of Article 275 to Article 803 of Bihar Education Code, there is no scope for any speculation that the teachers of SES mens and womens branch were neither made the subject matter of reference made to Saran Singh Committee nor resolution dated 11.4.1977 had envisaged their merger in BES class II-Government by passing the impugned order of merger dated 7.7.2006 had merely resorted to its executive power and that by itself could not amended Rule 4 of Rules which lays down the manner of filling up of the posts in Bihar Education Service Class I and II only through the direct recruitment or promotion-Such executive act cannot be sustained-When the teachers of SES who had their direct promotional avenue in BES class-II in terms of Rule 4-of the Rules, they bering continued on a subordinate post and reporting to the officers of BES Class II having a different mode of recruitment was not possible unless the rules of BES itself were amended.
(Paras 64, 69, 70, 76, 77 & 81)
1989 (4) SCC 465, AIR 1972 SI 767, AIR 1980 (3) SCC 245, AIR 1987 SC 2049, AIR 1990 SC 1607, 1990(2) SCC 715 -Relied upon.
AIR 190 SC 1689 -Distinguished.
Constitution of India-Article 309 Proviso-A rule framed under proviso to Article 309 of the Constitution of India having Statutory force is capable of being amended only by a similar statutory rules.
Service law-Cadre Merger of-In the event of merger of two cadres there would be no requirement for amending the rules, but if certain persons with post of another service are sought to be absolved, merged, or grouped together in a different service having statutory recruitment Rules, there has to be some provision in the Rules of such service in absence whereof the executive act can not be sustained. (Para 77)
(1989)4 SCC 465, 1990(1) PLJR 20(SC)-Relied upon.
Service Law-Cadre-merger-Judicial review scope of-In a case of merger/integration of cadre is also no longer res-integra-Factors to be taken into consideration-(a) nature and duties of a post (b) powers exercised by the officers holding a post. The extent of territorial or other charge held or responsibilities discharged (c) the minimum qualification if any prescribed for recruitment to the post and (d) The salary of the post-The judicial review on the aforementioned factors however is limited to an enquiring as to whether the aforementioned four principles had been properly taken into account-Merger of Subordinate Education Service (SES) in Bihar Education Service (BES) in class II-examination held by Bihar Public Service Commission Cadre of SES who were all along holding a non-gazetted post with inferior scale of pay and now all of them have been sought to be given a jump by the order of merger in BES Class II by the impugned notification dated 7.7.2006 and that too with retrospective effect from 11.4.1977-Such absurd proposition of merger of individuals in a duly constituted state service governed by statutory Rules is alsolutely unheard of and infact impermissible in law. (Paras 82 & 84)
1981 (4) SCC 130, 198(4) SCC 598, AIR 1999 SC, 2229, 1974 (4) SCC 838, (1987)Supp. Sec. 257, (1995) Supp. (4) SCC 44-Relied upon.
School laws-Recovery-High Court set aside the order of merger-Teachers already been paid the arrears of pay due to such merger-No recovery to be made but this present salary and/or retirement benefit would be paid only on the basis of their pay-scale to which they were entitled while holding the post of teachers in SES-It is however made clear that now no teacher of SES would be entitled to claim the benefit of salary of BES Class 11 on the ground that other teachers of SES had been paid their arrears of salary in the pay scale of BES Class II. (Para 91)
Mihir Kumar Jha, J.
1. All these cases having a common issue have been heard together and are being disposed of by this judgment. The issue revolves rounds the merger of the posts of teachers in Subordinate Education Service (Teaching Branch) in the Bihar Education Service Class-II.
2. In this batch of seven cases, five of them namely, LPA Nos. 418 of 2009, 974 of 2007, 947 of 2007, 946 of 2007 and 941 of 2007 are by way of appeals against the order of the learned Single Judge dated 31.10.2007* in CWJC No. 10091 of 2006 and CWJC No. 1467 of 2006, whereby and whereunder, he has set aside the Government order dated 7.7.2006 of merger and has left the matter to be decided afresh by the State Government. The sixth case, a writ petition CWJC No. 8679 of 2002 by one retired teacher of Bihar Subordinate Education Service, is in respect of only grant of consequential benefits in terms of the resolution of the State Government dated 11.4.1977 and the direction of this Court in the order dated 2.2.2000 passed in CWJC No. 12122 of 1998. It has to be noted that this very writ petitioner has also filed one of the aforementioned five appeals, namely, LPA No. 947 of 2007. The last of the seven cases is a contempt application being MJC No. 251 of 2001 alleging violation of an order of this Court dated 2.2.2000 in CWJC No. 8147 of 1999.
3. Thus before we embark upon to analyse the sole issue of merger of the post of teachers in Subordinate Education Service (SES) with Bihar Education Service Class-ll (BES) we must record here itself a historical fact that BES came to be created and established as a service exclusively for officers of Education Department of the State of Bihar in terms of Education Departments Resolution No. 6254 dated 15.11.1939 and expanded in another Education Departments notification no. 968 dated 4.5.1944. Subsequently the Governor of Bihar by notification S.O. 600 dated 2.3.1974 in exercise of his power under proviso to Article 309 of the Constitution of India and in supersession of the aforesaid two resolutions of Education Department dated 15.11.1939 and 4.5.1944 had made Rules for the regulation or recruitment to Bihar Education Service Class-I and Bihar Educational Service Class-ll, named and styled as Bihar Educational Service (Class-I) and Bihar Educational Service (Class-II) Recruitment Rules 1973, hereinafter referred to as the Rules. Such Rules which under Rule 2(h) defines service to mean Bihar Educational Service, Class-I and II also under Rule 3 contains detailed mechanism for source of recruitment either through direct appointment or through promotion, and the provisions for confirmation (Rule 6), seniority (Rule 7).
4. It has to be noted here itself that the various branches of SES which also has an equally long history of its separate existence and functioning, as can be gathered from Article 775 of the Bihar Education Code, 1961 , comprised of two services namely Bihar Subordinate Service and Bihar Lower Subordinate Service in which apart from the provision of direct recruitment on the different posts in teaching and inspecting branch those has all along been the concept of promotion not only in the -aforesaid two services but also from SES to BES Class-ll wherein 50% of general and inspecting branch and 80% of teaching branch in terms of Rules 4(b) and (c) of the Rules have to be compulsorily filled up by promotion in the manner prescribed under the Rules. The appellants admittedly are members of SES who had their channel of promotion in BES Class-ll under the Rules.
5. The inception of this twelve years of the old litigation, a period in the Indian mythology constituting a Yug, or sufficient in Civil Law for perfecting adverse possession was made in CWJC No. 12122 of 1998 when some teachers of the Subordinate Education Service (SES) working in the Zila Schools had sought to discover by reading into a 21 year old Resolution of the Finance Department dated 11.4.1977 that there was a conscious deci
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