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IN THE HIGH COURT OF JUDICATURE AT PATNA
K. VINOD CHANDRAN, CJ. and HARISH KUMAR, J.
CWJC Nos. 1942 with 2036, 2192, 2205, 2288, 2382, 2783, 2823, 2922, 3056, 3107, 3122, 3436, 3997, 4106 and 4565 of 2024
(2.4.2024)
Pramod Kumar Yadav (in 1942)
Keshav Kumar (in 2036)
Pragatisheel Prarambhik Shikshak Shangh (in 2192)
Bihar Rajya Prarambhik Shikshak Sangh (in 2205)
Raju Kumar & Ors. (in 2288)
Bihar Panchayat Nagar Prarambhik Sikshak Sangh & Ors. (in 2382)
Subodh Kumar Suman & Anr. (in 2783)
Nanhe Kumar Singh & Anr. (in 2823)
Samrendra Bahadur Singh & Ors. (in 2922)
Bihar Rajya Panchayat/Prakhand/Nagar Shikshak Sangh (in 3056)
Jai Prakash Rai & Ors. (in 3107)
Shashi Ranjan Suman & Ors. (in 3122)
Kamleshwar Prasad Yadav (in 3436)
Vimal Kumar (in 3997)
Arun Kumar Thakur (in 4106)
Parivartankari Prarambhik Sikshak Sangh (in 4565)
vs.
State of Bihar & Ors. ... Respondent
Right of Children to Free and Compulsory Education Act, 2009 – Section 23 – Bihar State School Teacher (Appointment, Transfer, Disciplinary Proceedings & Service Conditions) Rules, 2023 – Rule 3 – Bihar Panchayat Elementary School Service (Appointment, Promotion, Transfer, Disciplinary Proceeding and Service Condition) Rules, 2020 (Local Bodies Rules, 2020) – Appointment of school teachers – Fact that earlier government teachers were projected to be a vanishing class would not regulate actions of State for all time to come – State is not expected to do mere lip service to requirement of providing standard education, especially compulsory elementary education; a statutory mandate in wake of Right of Children to Free and Compulsory Education Act, 2009 – Merely because, earlier there was conducted an efficiency test, Niyojit Teachers cannot contend that they cannot be tested on their competency again, especially in present days wherein there is a lot of emphasis on continuing education, in all spheres of life, especially professional spheres – Present era is one of continuing education and it is more relevant insofar as teachers in schools are concerned, who carve out and mould future of citizens of State – In the Rules that there is sufficient opportunity for promotion and maintenance of seniority – Pay fixation is also done for exclusive teachers protecting the scales drawn in earlier service – Present Rule under Article 309 of Constitution of India creates a further cadre of Exclusive Teachers, which are at par with State School Teachers recruited under the State School Teacher Rules-2023 – Even those teachers who qualify can exercise an option to remain as Niyojit teachers – There is absolutely no prejudice caused to teachers if they appear in examination and it is up to them to join in exclusive cadre or remain as Niyojit teachers. (Paras 14 to 18)
Bihar State School Teacher (Appointment, Transfer, Disciplinary Proceedings & Service Conditions) Rules, 2023 – Rule 3 – Bihar Panchayat Elementary School Service (Appointment, Promotion, Transfer, Disciplinary Proceeding and Service Condition) Rules, 2020 (Local Bodies Rules, 2020) – Appointment of school teachers – By State School Teachers Rules-2023, State intends to fulfill its obligations in providing quality and compulsory education in elementary schools across the State – While ensuring that, State was faced with problem of existing Niyojit Teachers who had spent considerable time of their lives in education system of schools, eking out a livelihood and having gone through a process of evaluation – There can be discerned a shift in policy of State, in doing away with practice of selection of teachers through Panchayat Raj Institutions – Earlier experiments of having a different class of teachers, in contractual segment and then at a lower pay scale, than that of government teachers had failed in long run – Despite failed experiments having eluded desired objective of quality education, Welfare State has thought it fit to ensure sustenance of Niyojit Teachers and also enable all of them with a semblance of equality, by treating them at par with State School Teachers; leading to promulgation of Exclusive Teachers Rules-2023 in addition to State School Teachers Rules, 2023 – There were two different cadres one of government teachers and other of Niyojit Teachers; which in year 2010, despite intention to treat government teachers as a vanishing creed; by reason of one-time special recruitment, district cadre stood enhanced by more than 32000 appointees – As of now another cadre is created as Exclusive Teachers from Niyojit Teachers who qualified in a test conducted by State – Those who do not qualify would be retained as Niyojit Teachers, when recruitment as per State School Teachers Rules, 2023 and posting in new cadre of Exclusive Teachers Rules, 2023 are completed – Then, there would exist four separate cadres, State School Teachers, Exclusive Teachers, Niyojit Teachers and earlier government teachers within whose cadre would also be teachers under the one-time special recruitment – Niyojit, Exclusive and earlier government teachers, all are at present, a vanishing cadre and what is sought by the new rules is to bring in a structured State School Teachers Cadre in elementary schools across the State – Exclusive Teachers Rules, 2023 is applicable only to those Niyojit Teachers who opt, sit for and qualify test prescribed and then join under said rules, brought out under Article 309 of Constitution of India, which cannot be said to be in occupied field – It creates a new cadre, a new field, for its application as carved out from existing cadre of Niyojit Teachers – Local Bodies Teachers Rules, 2020 is applicable to Niyojit Teachers who were a class separate from government teachers even earlier to rules of 2023. (Paras 34 and 36)
Constitution of India – Article 309 – Once a legislature intervenes to enact a law regulating conditions of service, power of Executive, including President or Governor, to make a Rule under the proviso to Article 309 is totally displaced on principle of 'doctrine of occupied field' – If however, any matter is not touched by that enactment, it would be for executive to either issue instructions or to make a Rule under Article 309 in respect of that matter. (Para 31)
Bihar State School Teacher (Appointment, Transfer, Disciplinary Proceedings & Service Conditions) Rules, 2023 – Rules 3(3) and Proviso to Rule 4 – Bihar Panchayat Elementary School Service (Appointment, Promotion, Transfer, Disciplinary Proceeding and Service Condition) Rules, 2020 (Local Bodies Rules, 2020) – Right of Children to Free and Compulsory Education Act, 2009 – Section 23 – Appointment of school teachers – Principle of 'doctrine of occupied field' does not apply to Rule brought out under Article 309 of Constitution of India, specifically to create a cadre of Exclusive Teachers which is also carved out from cadre of Niyojit Teachers who are continuing under the Local Bodies Teachers Rules, 2020 – There is no repeal of Rules of 2020, by the Exclusive Teachers Rules, 2023, more so, because it has to survive even now for continuation of the Niyojit Teachers who do not qualify as Exclusive Teachers – Impugned Rule does not visit teachers who fail to qualify in competency test with consequence of termination and it even permits 'Local Bodies' Teachers to abstain from writing test – Those who qualify in test would have better service conditions, which is only in recognition of their competence and those who fail to qualify and even refuse to attempt tests, would still be continued in their employment – Overwhelming significance conferred on individual option, totally efface all grounds of prejudice – There cannot be a Committee constituted to regulate service of Niyojit Teachers in rules framed under proviso to Article 309, which is intended at regulating the terms of service of another cadre created out of the Niyojit Teachers cadre, based on a test qualification – Proviso to Rule 4 has to be struck down as one impinging on statutory Rule which occupies field characterized by cadre of Niyojit Teachers – Rules of 2020 continue to be in force for the purpose of regulating service of those persons who remain as Niyojit Teachers; at their option or on failure to qualify the competency test – Rule cannot survive as it exists in Exclusive Teachers Rules, 2023. (Paras 38, 39, 42 and 43)
Bihar State School Teacher (Appointment, Transfer, Disciplinary Proceedings & Service Conditions) Rules, 2023 – Rules 3(3) and Proviso to Rule 4 – Bihar Panchayat Elementary School Service (Appointment, Promotion, Transfer, Disciplinary Proceeding and Service Condition) Rules, 2020 (Local Bodies Rules, 2020) – Right of Children to Free and Compulsory Education Act, 2009 – Section 23 – Appointment of school teachers – Competency Test – There is no compulsion on Niyojit Teachers to sit for competency test, as was the case earlier in efficiency test – A Niyojit Teacher could as well opt not to appear for competency test in which event, he or she loses privilege of migration to cadre of Exclusive Teachers but still is enabled continuation as a Niyojit Teacher under Local Bodies Teachers Rules 2020 – Rule only facilitates at least some Niyojit Teachers to move ahead in their quest for equivalence with parity of pay and other benefits being conferred on them based on their proved competence through their test qualification – There is a complete volte-face by introduction of Rules of 2023, both the Exclusive Teachers Rules and State School Service Rules – State now intends to create a class of teachers with both training qualification and tested skills as would be revealed in competency test/written examination which will be respectively carried out for conversion of Niyojit Teachers to Exclusive Teachers and fresh recruitment of State School Teachers – Niyojit Teachers have been granted a pay scale and enabled decent emoluments as contemplated by Supreme Court – Claim for 'equal pay for equal work' raised by Niyojit Teachers as against existing government teachers would be realized with present Rules with only obligation on such teachers to pass competency test which is with avowed objective of motivating teachers to continue educating themselves and achieve a standard equivalent to that of newly recruited teachers under State School Teachers Rules-2023 – As of now there would be only teachers with pay parity termed as State School Teachers & Exclusive Teachers (Government teachers) co-existing with Niyojit Teachers – There is parity between State School Teachers and the Exclusive Teachers – Those who continue as Niyojit Teachers would be only those persons who refused to participate in test or fail to qualify in the test – They cannot raise ground of equality or claim 'equal pay for equal work' – Niyojit Teachers would definitely be a dying cadre along with Exclusive Teachers who would also be, in course of time, replaced by cadre of government teachers, bringing in a unified cadre, having essential educational qualification as also training qualification and their skills having been tested in a written examination – Exercise as carried out by State in continuing Niyojit Teachers and making regular appointments as Exclusive Teachers would have to comply with provisions of Section 23 of RTE Act, 2009 – Writ petitions disposed of upholding impugned rules, with specified provisions being struck down. (Paras 46, 51, 53, 54)
K. Vinod Chandran, CJ. – The State has been grappling with the twin issues; of providing standard education to the school going children, and appointment & continuance of the teachers, which issues are inextricably linked with each other and hence, inevitably jinxed by reason of the appointments carried out unscrupulously and on fraudulent certificates. The State has experimented with different modes of selection of teachers; many of which failed, and from its long experience has come out with two new rules, both with the avowed object of maintaining high standard of education; one, by ensuring selection through a written examination, of trained qualified hands and the other, for augmenting the skills of those continuing, by requiring them to undergo a test, with offer of better facilities on qualifying the same. The State walks a tightrope insofar as maintaining an equilibrium in providing such quality education, at the same time ensuring that the present crop of teachers do not loose their livelihood. One of such enactments dealing with the existing Niyojit Teachers, the Bihar School Exclusive Teachers Rules, 2023 (for brevity ‘Exclusive Teachers Rules-2023’), is challenged as ultra vires, incompetent and having been enacted within an occupied field; i.e.: occupied by the existing rules regulating the appointment and service of teachers.
2. Shri Y.V.Giri, learned Senior Counsel appearing for the petitioners, who are Panchayat Teachers (alternatively called ‘Niyojit’), pointed out that all the petitioners are persons having qualifications for teaching in elementary, secondary and higher secondary schools, as prescribed by the National Council of Teacher Education (for brevity ‘NCTE’). They were appointed under the Bihar Panchayat Primary Teacher (Appointment and Service Conditions) Rules, 2006 (for short ‘Primary Teacher Rules- 2006’) and later were regulated by the Bihar Panchayat Teachers Rules, 2012 (for brevity ‘Panchayat Teachers Rules, 2012’). Some of them were Shiksha Mitras appointed prior to 2006 who were absorbed as Niyojit Teachers under the Primary Teacher Rules-2006. When the Panchayat Teachers Rules-2012 came into force, all the teachers in place were required to sit for an examination to test their competence and only those who qualified in the test were given a regular pay scale and increments, as per Rule 15B. Only teachers who qualified were continued, on establishing their competence, and it is urged that these teachers cannot now be put through the rigmarole of another competency test, when they have already established their competence.
3. Then came the Bihar Panchayat Elementary School Service (Appointment, Promotion, Transfer, Disciplinary Proceeding and Service Condition) Rules, 2020 (for brevity, ‘Local Bodies Rules, 2020’). There was a dispute between the Government teachers and the Niyojit Teachers, the former of whom though discharging identical duties were getting a better pay and emoluments. The matter was taken up to the Hon’ble Supreme Court, which rejected the claim of equality at par with the government teachers, as raised, in State of Bihar & Ors. vs. Bihar Secondary Teachers Struggle Committee Munger & Ors.; (2019) 18 SCC 301. The specific contention taken by the government before the Hon’ble Supreme Court was that the government teachers were a vanishing class and that the State Government had improved the working conditions of the Niyojit Teachers and they cannot be treated at par with the government teachers. While continuing under the Local Bodies Rules, 2020, the present rules of Exclusive Teachers Rules, 2023 came into force, wherein there is a further selection mandated by appearing in a competence test. It is asserted that the Niyojit teachers proved themselves when the Panchayat Teachers Rules-2012 came into force and there is no question of periodic & recurrent testing of competence. It is argued that the rules now promulgated are in violation of Article 20; since it brings in discr
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