Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 571

SUPREME COURT OF INDIA
Abhay Manohar Sapre, Uday Umesh Lalit,
STATE OF BIHAR & ORS. – Appellants
VERSUS
THE BIHAR SECONDARY TEACHERS STRUGGLE COMMITTEE, MUNGER & ORS. – Respondents
CIVIL APPEAL NO. 4862 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO.20 OF 2018) WITH CIVIL APPEAL NO. 4872 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.708 OF 2018) CIVIL APPEAL NO. 4867 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.238 OF 2018) CIVIL APPEAL NO. 4866 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.242 OF 2018) CIVIL APPEAL NO. 4864 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.169 OF 2018) CIVIL APPEAL NO. 4865 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.162 OF 2018) CIVIL APPEAL NO. 4869 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.254 OF 2018) CIVIL APPEAL NO. 4863 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.164 OF 2018) CIVIL APPEAL NO. 4868 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.251 OF 2018) CIVIL APPEAL NO. 4870 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.240 OF 2018) CIVIL APPEAL NO. 4871 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.572 OF 2018)
Decided On : 10-05-2019

Advocates Appeared:
For the Petitioner:Mr. Gopal Singh, Mr. Yasharth Kant, Mr. Krishnam Misra, Mr. Nishant Singh, Mr. Manish Kumar, Mr. Shivam Singh, Mr. Aditya Raina, Mr. Kumar Milind, Mr. Udian Sharma, Mr. Shreyas Jain, Mr. Arjun Khazanchi, Advocates
For the Respondent:Mr. Animesh Kumar, Mr. Murari Kumar, Mr. Neeraj Shekhar, Mr. Sumit Kumar, Mr. Rohit Kumar Singh, Mr. Ashutosh Thakur, Mr. Rana Prashant, Mr. Gaurav Yadava, Mr. Karunakar Mahalik, Mr. Karunakar Mahalik, Mr. Chandra Shekhar Suman, Mr. Avdhesh Kumar Singh, Mr. Anish Kumar Gupta, Ms. Rita Gupta, Mr. Ajay Bansal, Mr. Gaurav Yadava, Mr. Vijay Pratap Yadav, Mr. Karunakar Mahalik, Mr. Manjit Kr.Pathak, Mr. Rajiv Ranjan Dwivedi, Mr. Anish Kr.Mishra, Mr. Animesh Upadhyay, Mr. Amit Pawan, Mr. Gaurav Yadava, Mr. Durga Dutt, Mr. Durga Dutt, Mr. Rohit Priyadarshi, Mr. Jitendra Nath Pathak, Dr. Gajendra Pd.Singh, Mr. Prashant Bhushan, Mr. Prashant Bhushan, Mr. Suyash Srivastava, Mr. Jitendra Kumar, Mr. Abhay Kumar, Mr. Saurabh Mishra, Mr. Vineet Kumar Singh, Ms. Neetu jain, Mr. Avishkar Singhvi, Mr. Abhay Kumar, Mr. Saurabh Mishra, Mr. Gaurav Yadava, Mr. Abhishek Yadav, Mr. Amit Kumar Srivastava, Mr. Amit Wadhwa, Mr. C.K.Sharma, Mr. Sanjay Kumar Hadala, Mr. Sanjeev Kumar, Mr. Gaurav Teotia, Ms. Sofia Begum, Mr. Sanjeev Yadav, Dr. Vinod Kumar Tewari, Mr. Rakesh Mishra, Mr. Rana Ranjit Singh, Mr. Vivek Kumar Singh, Mr. Ravish Singh, Ms. Akanksha Singh, Mr. Suman Kumar Divakar, Mr. Pushkar Anand, Ms. Chhaya Kumari, Mr. Rajnish Bhaskar, Mr. Ajay Kumar Singh, Mr. Abhishek Gupta, Mr. Satyendra K.Srivastav, Mr. Ramesh Kr.Tiwari, Mr. Vinay Kumar, Mr. Manoj Dwedi, Mr. Manjit Pathak, Mr. Keshav Ranjan, Mr. Lav Kumar Aggarwal, Mr. Krishna Kumar Singh, Mr. Rakesh Kumar Singh, Mr. Ashok Anand, Mr. Bipin Bihari Singh, Mr. Somanatha Padhan, Mr. S. K. Verma, Mr. Rahul Kumar, Mr. Sukesh Kr.Mishra, Mr. Pankaj Kumar Mishra, Mr. Ranjit Kumar Sharma, Mr. Satyajeet Kumar, Mr. Anand Nandan, Mr. Rameshwar Prasad Goyal, Mr. Akshat Srivastava, Mr. Rohit Rajershi, Mr. Dhirendra Kumar Mishra, Mr. Rameshwar Prasad Goyal, Mr. R.K.Singh, Ms. Neeraj Singh, Ms. Ritu Reniwal, Mr. Amrendra Kumar Singh, Ms. P.Dayal, Mr. Rameshwar Prasad Goyal, Mr. Md.Izhar Alam, Mr. M.P.Singh, Mr. Rameshwar Prasad Goyal, Mr. Kumar Gaurav, Mr. Robin Khokhar, Mr. B.N.Dubey, Mr. Ravi Chandra Prakash, Mr. Sushil Kumar, Mr. Ashok Kumar Upadhya, Mrs. Swarupama Chaturvedi, Mr. Rajnish Kumar Jha, Mr. Mahendra Kumar, Ms. Neha Jain, Mr. Anil Kumar Jha, Mr. Atul Jha, Mr. Santosh Kumar Pandey, Mr. Dinesh Kr.Tiwary, Ms. Shama Sharma, Mr. U.S.Aggarwal, Mr. Raghwendra Tiwari, Mr. Santosh Kumar Tripathi, Mr. Dinesh Kr.Tiwary, Mr. Ramesh Thakur, Mr. Pramod Kr.Singh, Mr. Santosh Kumar Tripathi, Mr. Dinesh Kr.Tiwary, Mr. Chandan Kr., Ms. Jaya Kumari, Ms. Rajmala Dohare, Mr. Santosh Kumar Tripathi, Mr. Saurabh Mishra, , Advocates

IMPORTANT POINTS
Even though nature of duties and responsibilities of Niyojit teachers and Government teachers same or similar but the method of recruitment being different the State government may maintain different identities of these two cadres as there could be inter se distinctions between them.
Evolution of pay structure depends upon - (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer’s capacity to pay, etc.
There has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them.
At initial stage Niyojit teachers ought not be given pay scales lesser than peons ans clerks in the same school.
Add regards right to equality guaranteed by Article 14, Constitution of India, law remains the same but the conditions of the times change. An accommodation between conflicting claims has to be arrived by judicial process.
Later decisions of smaller Benches have to be read in the light of the law laid down by the larger Bench.

Headnote:
Per Uday Umesh Lalit, J.
       (a) Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006 - Rule 12 r/w Rule 8, Bihar Municipal Body Secondary and Higher Secondary Teachers (Employment and Service Conditions) Rules 2006 and Rule 8 Bihar District Board Secondary and Higher Secondary Teachers (Employment and Service Conditions) Rules, 2006 - Equal pay for equal work - Emoluments payable to teachers appointed under Rules 2006 were lower than the emoluments paid to the teachers appointed before said Rules of 2006, that is, Government teachers - Appointment of Government teachers discontinued after Rules, 2006 - However 34,540 primary school teachers appointed as one time appointment - By a Resolution passed by State Government on 11.08.2015 pay-scale instead of fixed salary contemplated under 2006 Rules, were granted to Niyojit Teachers - Sarva Shiksha Abhiyhan (SSA) and Rastriya Madhyamik Shiksha Abhiyan (RMSA) operational from financial years 2000-2001 and 2009-2010 respectively - ‘Samagra Shiksha’ by merging SSA, RMSA and CSTE coming into the effect from 1st April, 2018 - At present about 66,000 government teachers as against nearly 4 lakh Niyojit Teachers in the State - All actions by State parts of an integrated policy - No error. (Para 18, 21, 28, 77)
       (2014) 11 SCC 405 - Relied upon
       AIR 1988 SC 1504 - Referred
       (b) Constitution of India - Article 21A and RTE Act - State appointing teachers at different points of time as Shiksha Mitra and Niyojit teachers to achieve spread of education as mandated by Article 21A and the Act - Cadre of Government teachers a dying or vanishing cadre - No appointments post 2006 with one exception - Pay scales of Niyojit teachers lower than Government teachers - Direction for parity in pay scales of both cadres could create tremendous imbalance and cause great strain on budgetary resources. (Para 55, 58, 77)
       (2008) 6 SCC 1 - Relied upon
       (1989) 1 SCC 182; (1989) 3 SCC 191; (1990) 2 SCC 396; (1998) 1 SCC 422; (2002) 6 SCC 72 - Referred
       (c) Service law - Doctrine of equal pay for equal work - Niyojit teachers seeking pay parity with Government teachers, a dying or vanishing cadre - The doctrine not an abstract doctrine - has no mechanical application - Equation of posts and salary should be left to an expert body - Factors like the source and mode of recruitment/appointment should be considered before entertaining and accepting claim of equal pay for equal work - Instantly nature of duties and responsibilities of Niyojit teachers and Government teachers same or similar but method of recruitment different - Even then State government may maintain different identities of these two cadres as there could be inter se distinctions between them. (Para 59, 68, 74)
       (1982) 1 SCC 618; (2007) 8 SCC 279; (2008) 10 SCC 1; (2009) 9 SCC 514; (2011) 11 SCC 122; 1963 Suppl. 2 SCR 169; (1972) 2 SCC 275; (1982) 1 SCC 618; Charanjit Singh - Relied upon
       AIR 1962 SC 1139; (2017) 1 SCC 148; (2014) 13 SCC 792; 1995 Supp (1) SCC 279; 1956 SCR 267; (1974) 4 SCC 656; (1975) 4 SCC 754; (1979) 4 SCC 642; Col. A.S. Iyer v. V. Balasubramanyam; (1998) 2 SCC 1; 1980 Supp SCC 155; (2003) 9 SCC 731; (2008) 9 SCC 552; (2017) 7 SCC 729; (1996) 11 SCC 77; (2003) 5 SCC 188; (2004) 1 SCC 347; (2007) 1 SCC 408; (1986) 1 SCC 637; (1987) 4 SCC 634; (2012) 6 SCC 1; (1992) 2 SCC 29; 1995 Supp (4) SCC 111; (2018) 13 SCC 560; (1993) 1 SCC 645; (1996) 6 SCC 756; (2006) 4 SCC 1; (1983) 2 SCC 33; (2001) 4 SCC 78; (2017) 9 SCC 1; (1974) 4 SCC 3; (1980) 1 SCC 98; (1981) 1 SCC 627; (2012) 6 SCC 502; (2013) 4 SCC 152 (2012) 13 SCC 33; (2018) 12 SCC 595; (1980) 4 SCC 162; (2017) 4 SCC 449; (1992) 3 SCC 666; (1995) 4 SCC 507; (1992) 1 SCC 290; (2000) 2 SCC 42; (1978) 1 SCC 248; (2003) 6 SCC 123; (1962) 3 SCR 269 : AIR 1962 SC 171; (2018) 10 SCC 1; (1975) 1 SCC 11; (2015) 3 SCC 1; (2016) 7 SCC 221 - Referred
       (d) Service law - Pay structure - Evolution of - Factors to be considered - (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer’s capacity to pay, etc. (Para 75)
       1993 Supp (1) SCC 153 - Relied upon
       (e) Interpretation of statute - RTE Act - Budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen - That interpretation of the act should be accepted which would make the Right available under Article 21A, Constitution of India a reality which is child-centric - Free and Compulsory Education ought to be quality education - However, to realize all these it is not necessary to pay the same emoluments as State teachers to Niyojit teachers - These matters are for the Executive to consider - Held, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. (Para 78, 79)
       (f) Service law - Pay - Niyojit teachers, at initial stage, getting less salary than peons and clerks in the same school - Teachers must be entitled to decent emoluments - State suggested to consider the issue. (Para 80)
       Per Abhay Manohar Sapre, J.
       (g) Service law - Equal pay for equal work - Right to equality guaranteed by Article 14, Constitution of India - Law remains the same but the conditions of the times change - An accommodation between conflicting claims has to be arrived by judicial process. (Para 4, 5)
       AIR 1956 SC 479 - Relied upon
       (h) Administration of justice - Judicial propriety - Prevalence of decision of a larger Bench - Later decisions of smaller Benches have to be read in the light of the law laid down by the larger Bench. (Para 8, 9)
       AIR 1989 SC 2027; AIR 1964 SC 334 - Relied upon
       (i) Service law - Parity of pay between Niyojit teachers and Government teachers - Matter needs to decided in light of judgment of larger Benches in Joginder Singh and Zabar Singh. (Para 6, 7, 10)
       1963 Suppl(2) SCR 169; (1972 ) 2 SCC 275 - Relied upon
       Facts of the case:
       In 1981, all non-Government Secondary Schools were nationalized and the management was taken over by State of Bihar. Consequently, all teaching and non-teaching staff were given salaries and emoluments at the Government scales. With the schemes like Sarva Shiksha Abhiyan, introduction of Article 21A in the Constitution and coming into force of the Right of Children to Free and Compulsion Education Act, 2009 (‘RTE Act’, for short), the State was required to induct large number of teachers in order to meet the required obligations. These teachers employed at Panchayat, Nagar Panchayat and Municipal levels were not given same salaries and emoluments like the teachers who were paid at the Government scales. The petitions seeking same salaries and emoluments on the principle of “equal pay for equal work” filed by the latter category of teachers, were allowed by the High Court.
       Finding of the Court:
       Niyojit teachers cannot be granted parity of pay with the dying and vanishing cadre of Government teachers.
       Result: Appeals allowed, Writ petitions dismissed.

JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.

2. These appeals are directed against common judgment and order dated 31.10.2017 passed by the High Court of Judicature at Patna in Civil Writ Jurisdiction Case No.21199 of 2013 and all connected matters.

3. In 1981, all non-Government Secondary Schools were nationalized and the management was taken over by State of Bihar. Consequently, all teaching and non-teaching staff were given salaries and emoluments at the Government scales. With the schemes like Sarva Shiksha Abhiyan, introduction of Article 21A in the Constitution and coming into force of the Right of Children to Free and Compulsion Education Act, 2009 (‘RTE Act’, for short), the State was required to induct large number of teachers in order to meet the required obligations. These teachers employed at Panchayat, Nagar Panchayat and Municipal levels were not given same salaries and emoluments like the teachers who were paid at the Government scales. The petitions seeking same salaries and emoluments on the principle of “equal pay for equal work” filed by the latter category of teachers, were allowed by the High Court. The view taken by the High Court is presently under challenge at the instance of the State.

4. By the Bihar non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 (‘1981 Act’, for short), management and control of non-Government Secondary Schools were taken over by the State. In terms of Section 3, all non-Government Secondary Schools other than Minority Secondary Schools based on religion or language and Centrally sponsored, autonomous and proprietary schools were taken over by the State Government w.e.f. 02.10.1980. Consequently, every Head Master, Teacher and other employees of such school became employees of the State Government, with Management and Control of all the nationalized schools vesting in the Director of Education of State Government (In charge of Secondary education). Section 10 dealt with establishment of School Service Board which was entrusted with the power of appointment of Teachers, Head Masters in nationalized schools and the Board would make recommendations for appointment of teachers and for appointment or promotion of Head Masters of nationalized secondary schools. The District Secondary Education Fund was constituted under Section 11 and the application of the fund under Section 12 would inter alia be for payment of salaries and allowances of the Head Master, Teachers and other staff of the secondary schools.

5. Bihar Nationalized Secondary Schools (Service Conditions) Rules, 1983 were framed by the State Government in exercise of powers conferred under Sections 9 & 15 of the 1981 Act. Under these Rules the service conditions were prescribed for Head Master, Teachers of superior category, teachers of inferior category and teachers of junior category as well as in respect of non-teaching employees such as clerks, peons etc. These Rules prescribed minimum qualifications for each of those categories. The Rules also dealt with subjects such as procedure for appointment, permission, and disciplinary action. Rule 6 dealt with cadre of teachers and was to the following effect:

“6. Cadre of teachers:-
1. There shall be Dist. Cadre of junior category teachers, of whose controlling officer shall be Dist. Education Officer.
2. There shall be Commissionaire Cadre of the teachers of inferior and superior category of whose controlling officer shall be Regional Director.
3. There shall be State Cadre of Headmaster whose controlling officer shall be Director.”

6. By the Constitution (73rd amendment) Act, 1992 Part IX (containing Articles 243, 243A to 243-O) was inserted in the Constitution.

Article 243B mandates that in every State there shall be constituted Panchayats at the village, intermediate and district levels in accordance with Part IX of the Constitution Art

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2019 Supreme(SC) 571

Cases Referred (59)