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2010 Supreme(Pat) 437
PATNA HIGH COURT
Dipak Misra and Shiva Kirti Singh JJ.
Mamta Kumari Wife Of Sri Bijay Kishore Prasad
Versus
State Of Bihar
Letter Patent Appeal No. 782 of 2009
Decided On : MARCH 22, 2010
Headnote:State Basic Schools (Classification, Appointment, Promotion and Transfer of Assistant Teachers) Rules, 1975-Rules 3, 5 & Bihar Non-Government Elementary Schools (Taking over and control) Act, 1976 r/w Rules under Memo No. 2412 dated 5.11.1981 pertaining to appointment of Asstt. Teachers in Elementary/Primary and Basic Schools-R.D.D.E., Patna Division by the order impugned in the writ petition, adjusted the Assistant Teachers, who were posted at that time at different Basic Schools, in Divisional Cadre-held by the writ court that in terms of the decision in earlier writ petition disputed of by a Division Bench in the impugned order would have the right to be treated as teachers of Basic Schools from the date of their appointment/posting and not from the date of the issuance of the said order-the appellants contending that order passed in the earlier writ petition cannot become foundation for issue of impugned order, the same being per incuriam as it has not adverted to 1981 Rules which really governed the field and proceeded to decide the controversy on the basis of 1975 Rules-State of Bihar taking the stand that respondents are covered by 1975 Rules- and the DB gave a categorical finding by scanning the 1975 and the State is obliged to give effect to the order-When a court delivers a judgment without jurisdiction or is contrary to the existing law, the earlier judgment cannot held to be res judicata in the subsequent case-however, in the present case, the earlier decision rendered by the H. C. was within jurisdiction and not contrary to the law and binds to the appellants even though they were not parties to it as they were not borne in the cadre and the lis pertained to the petitioners therein and the State-State is bound by the said order and has not acted illegally by following it-appeals dismissed. (Paras 11, 13, 15 to 40)
(1975)2 SCC 232, (1990)4 SCC 682, AIR 1988 SC 1531, (2000)4 SCC 262, (2001)6 SCC 356, AIR 2003 SC 2443, AIR 2004 SC 2317, (2004)7 SCC 558, AIR 2005 SC 752, AIR 1971 SC 2355, (1979)2 SCC 34 -Referred to.
Dipak Misra, J.
1. Being grieved and dissatisfied with the order dated 4.5.2009 passed by the learned Single Judge in CWJC No. 5689 of 1996, the appellants have preferred the present appeal invoking the jurisdiction under Clause- X of the Letters Patent.
2. The necessitous facts, bereft of unnecessary details, are the appellants-petitioners (hereinafter referred to as the appellants) invoked the inherent jurisdiction of this Court under Article 226 of the Constitution of India for issue of a writ of certiorari for quashment of Memo No. 2392 dated 18.11.1995, contained in Annexure-1 to the writ petition, issued by the Regional Deputy Director of Education, Patna Division, Patna, whereby the interveners were included in the Divisional Cadre of Basic Government School. It is worth noting that the aforesaid memorandum came to be issued on the basis of the order passed in CWJC No. 4199 of 1989 and other analogous cases and that of the order passed by the Apex Court, which affirmed the order of this Court. As is evident vide the memorandum contained in Annexure-1, 26 persons have been adjusted in basic schools of Patna Division.
3. The case of the appellants before the Writ Court was that in pursuance of an advertisement for appointment of teachers in Government Basic Schools, they had applied for the said posts and eventually were selected by the Divisional Level Establishment Committee in the year 1991 and posted in various Government Basic Schools by the Regional Deputy Director of Education in the pay scale of Rs. 1200- 1800/-. On 18.11.1995 by the impugned order, the said authority had adjusted the Assistant Teachers, who were at that time posted in different Basic Schools in Divisional Cadre. The said action, was taken by the respondents, on the basis of the order passed in CWJC No. 4199/1989.
4. It was pleaded in the writ petition that in the State of Bihar, school education has two branches, namely, Primary Education and Secondary Education with separate Directorate. Under Primary Education, there are two categories of schools, namely, Government Basic Schools and Non-Government Elementary Schools. On 11.11.1975, vide Notification No. 2749 the State Government in exercise of the power conferred on it under Article 309 of the Constitution of India framed the State Basic Schools (Classification, Appointment, Promotion and Transfer of Assistant Teachers) Rules, 1975, (hereinafter referred to as the 1975 Rules). According to the 1975 Rules, the cadre of the Assistant Teachers of Basic Schools is of Divisional Level under the Regional Deputy Director of Education (for short, R.D.D.E.), who was the appointment authority. According to Rule 3 of the 1975 Rules, the cadre of the teachers of the Government Basic Schools would be of Divisional Level and, according to Rule 4 of the aforesaid Rules, the cadre controlling authority of the teachers of the Government Basic Schools would be the concerned Regional Deputy Director of Education. According to Rule 5, the competent authority would make appointment on the basis of the recommendations of the Divisional Committee constituted under the said Rules. Referring to the said Rules, it was contended that the posts of Assistant Teacher of Government Basic Schools belonging to Divisional Cadre, the concerned Regional Deputy Director of Education would make appointment upon the recommendations of the aforesaid Divisional Committee. The initial appointment was to be made on the posts of Matric Trained Scale and thereafter promotion would be made on the basis of seniority to the posts of higher scale. Thereafter, all appointments on the posts of Assistant Teacher of Government Basic Schools in Divisional Cadre were being made by the concerned R.D.D.E. according to the 1975 Rules.
5. For better organization and development of elementary education, the State Government brought the legislation, namely, Bihar Non-Government Elementary Schools (Taking Over and Control) Act, 1976, (for brevit
