Supreme Court of India
BIHAR STATE GOVERNMENT SECONDARY SCHOOL TEACHERS ASSOCIATIONversusBIHAR EDUCATION SERVICE ASSOCIATION & ORS.
- Citation
- 2012 INSC 539
- Decided
- 23 November 2012
- Disposal
- Disposed off
- Bench
- S S NIJJAR
Holding
The 7 July 2006 resolution merging the subordinate teachers into Bihar Education Service Class‑II is a valid, non‑arbitrary policy decision and must be upheld, and the High Court cannot reopen the matter in violation of res‑judicata.
Summary
The case concerned the merger of Bihar's Subordinate Education Service teachers into the Bihar Education Service (Class‑II) following a 1977 notification and a 2006 state resolution. After multiple rounds of litigation, the Supreme Court held that the 7 July 2006 resolution was a lawful policy decision, not violative of Article 14, and that the earlier Supreme Court order of 19 April 2006 required the state to implement the merger. The Court emphasized the doctrine of res‑judicata, stating that the High Court could not reopen the controversy and must accept the Supreme Court’s interpretation. Consequently, the judgments of the Patna High Court that had set aside the resolution were quashed, the 19 November 2007 notification cancelling the resolution was also set aside, and the 7 July 2006 resolution was upheld. The appeals were allowed, and the pending contempt proceedings were dismissed.
Issues considered
- The legality of the 7 July 2006 resolution merging subordinate teachers into Bihar Education Service Class‑II.
- Whether the resolution violates Article 14 of the Constitution.
- Whether the High Court could reopen the controversy despite the Supreme Court’s earlier order (res‑judicata).
- The applicability of Article 141 regarding binding precedent of Supreme Court judgments.
Legislation cited
- Constitution of Indias. Art.14, s. Art.141
Subjects
cadre mergerpolicy decisionres judicataArticle 14Article 141administrative lawpromotionBihar Education Servicesecondary school teachers
Judgment
[2012) 11 S.C.R 50
A BIHAR STATE GOVERNMENT SECONDARY SCHOOL
TEACHERS ASSOCIATION
v.
BIHAR EDUCATION SERVICE ASSOCIATION & ORS.
(Civil Appeal Nos. 8226-8227 of 2012)
B NOVEMBER 23, 2012
[SURINDER SINGH NIJJAR AND H.L. GOKHALE, JJ.]
SeNice Law:
c
Secondary School Teachers of Bihar Subordinate
Education Service - Upgradation and merger of in Bihar
Education SeNice - Notification dated 11.4.1977 and State
Government Resolution dated 7. 7.2006 - Held: The decision
D to merge the cadres is a matter of policy - It is for the State
to decide as to which cadres should be merged so long as
the decision is not arbitrary or unreasonable - Resolution
dated 7. 7.2006 is well reasoned and justified and is upheld -
It cannot be called arbitrary or unreasonable to be hit by Art.
14 of the Constitution - Judgment of Single Judge in CWJC
E No. 867912002 and impugned judgment of Division Bench of
High Court are set aside - Consequently, the notification
dated 19. 11. 2007 issued pursuant to the decision of Single
Judge will also stand quashed - Constitution of India, 1950
- Art.14 - Administrative Jaw - Policy decision.
F
Constitution of India, 1950:
Art. 141 - Law declared by Supreme Court to be binding
on all courts - Held: High Courts cannot ignore Art. 141 -
G When the judgment of a court is confirmed by the higher court,
the judicial discipline requires that court to accept the said
judgment, and it should not in collateral proceedings write a
judgment contrary to the confirmed judgment - The manner
in which the Single Judge proceeded with Writ Petition
H 50
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 51
BIHAR EDU. SER. ASSN.
No.1009112006 to reopen the entire controversy, and also the A
Division Bench in the LPA in approving that approach is far
from satisfactory - If the orders passed by Supreme Court
were not clear to the State Government or any party, it could
have approached the Court for clarification - But it could not
have set up a contrary plea in a collateral proceeding - Such B
an approach was not expected from State Government as also
from High Court - Judicial discipline - Res Judicata.
Education:
Secondary School Teaches - Upgradation of - Not C
implemented - Held: Teachers have to be treated honourably
and given appropriate pay and chances of promotion - It is
certainly not e~pected of State Government to drag them to
court ,in litigation for years together - The Court records its
strong displeasure for the manner in which State Government D
kept on changing its stand from time to time.
In order to remove stagnation and open promotional
avenues for Secondary School Teachers and other
categories of employees, the State Government of Bihar, E
accepting the recommendation of Saran Singh
Committee report, issued Notification dated 11.4.1977 to
the effect that posts of teachers and Stadium Managers
would be included in the Bihar Education Service Cadre.
However, non-implementation of the said Notification
gave rise to litigation and, ultimately, the Supreme Court F
by its order dated 19.04.2006, while dismissing the
appeal filed by the State Government, directed it to
implement the Notification dated 11.4.1977.
Consequently, the State Government by its decision
dated 3. 7 .2006 proposed to upgrade the posts of G
Subordinate Education Service with Bihar Education
Service Class-II w.e.f. 1.7.1977. Accordingly, the Order of
Governor of Bihar was issued on 7.7.2006 stating that
teachers of Subordinate Service (Teaching Branch) were
merged into Bihar Education Service Class-II w.e.f. H
52 SUPREME COURT REPORTS [2012) 11 S.C.R.
A 1.7.1977 in accordance with the Finance Department
Notification dated 11.4.1977. Subsequently, Notification
dated 9.10.2006 was issued giving effect to the Resolution
dated 7.7.2006 with respect to three teachers. Thereupon
Bihar Education Service Employees filed Writ Petition No.
B 10091/2006. The Single Judge, referring to the
observations made by Supreme Court in its order dated
19.04.2006 that it was for the High Court to decide
whether the notification of the State Government was
implemented in the manner required, held that the
C Government decision accepting the recqmmendation of
the Committee was with regard to miscellaneous cadre
only and while doing that there was no occasion for the
State Government to take a decision to merge the
teaching branch of Bihar Subordinate Education Service
with Bihar Education Service. The writ petition was
0
allowed and the resolution dated 7.7.2006 was quashed.
Accordingly, the State Government issued Notification
dated 19.11.2007 quashing the resolution dated 7.7.2006.
The LP.As. filed by the Secondary School Teachers
Association and the individual teachers were dismissed
E by the Division Bench of the High Court.
In the instant appeals, it was principally contended
on behalf of the Secondary School Teachers Association
that after the judgment dated 19.4.2006 passed by the
F Supreme Court, it was not permissible for the Single
Judge of the High Court to re-open the entire
controversy.
Disposing of the appeals, the Court
G HELD: 1.1. It is significant to note that at the end of
the first round of litigation, the petition filed by the
appellant had been allowed by Single Judge, and that
order had been left undisturbed in the appeals therefrom
by the Division Bench of the High Court as well as by this
H
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 53
BIHAR EDU. SER. ASSN.
Court. In spite of the orders, the State Government did not A
take steps to implement the notification dated 11.4.1977,
in the manner accepted as valid in the first round of
litigation. This inaction led to filing of one more Writ
Petition No.8679 of 2002 for the implementation of
notification dated 11.4.1977, and the merger of B
subordinate teachers into the Bihar Education Service
Class-II. Notings on the files of the Government clearly
showed that the Education Department had understood
that for the implementation of the notification, the merger
of the two cadres was necessary, and had for that c
purpose prepared a draft resolution for the approval of.
the Finance Department. In view of this factual scenario,
and also in view of the previous orders, the single Judge
allowed the Writ Petition No.8679/2002, and directed
steps to be taken for merger of the subordinate teachers D
into the Bihar Education Service. The appeal of State of
Bihar was -also dismissed by the Division Bench of the
High Court by observing that the controversy had already
attained finality with the orders of the Supreme Court. The
order dated 19.4.2006 passed by this Court has to be
read on this background. In the said order this Court has E
recorded that the non-implementation of the notification
passed in 1977 for such a long time had shocked its
conscience. The Court specifically recorded that the writ
petitions filed in the High Court were allowed in favour
of the teachers holding that such merger is contemplated F
in the Government notification concerned. All that
remained to be looked into was whether the
implementation has been done in the manner required by
the notification. It is also relevant that before dismissing
the civil appeal filed by the State Government, the Court G
recorded that the Government was also thinking of
implementing the notification in the manner suggested by
the appellants. Therefore, ultimately, the Court directed
that the High Court will examine the matter and if satisfied
that the notification has not been implemented, deal with H
54 SUPREME COURT REPORTS [2012) 11 S.C.R.
A the contemnors in accordance with law. Therefore, the
Court vacated the stay on the contempt proceedings
forthwith. [Para 33-35] [79-D-H; 80-A-D-F-H; 81-A]
1.2. Thus, all that remained to be done was to decide
B the pending contempt petition in Writ Petition No.8679 of
2002. The state of Bihar understood the decisions so far
correctly, and, therefore, passed the resolution dated
7.7.2006 accepting the view point, which had found
favour with the High Court as well as this Court,
recommending the merger of the two cadres and
C upgradation of the teachers. The resolution also recorded
that the merger would not have any serious financial
implications nor would it affect seniority of many
employees since most of the employees, to be merged,
had either retired or were on the verge of retirement. [Para
D 36] [81-8-C]
1.3. In this background when the Bihar Education
Service employees filed Writ Petition No. 10091 of 2006,
the State Government rightly defended its resolution
E dated 7.7.2006. However, the Single Judge failed to
understand the import of the decision of this Court, and
thought that he had the liberty to reopen the controversy
despite the decisions rendered in the first two rounds.
He, therefore, passed the order allowing that writ petition.
F The State Government once again changed its stand, and
issued a Notification canceling the Resolution dated
7.7.2006. This was not expected from the State
Government. Unfortunately, the Division Bench of the
High Court '!lso approved this re-opening of the
G controversy once again. [Para 37] [81-D-F]
1.4. The hierarchy of the courts requires the High
Courts also to accept the decision of this Court, and its
interpretation of the orders issued by the executive. Any
departure therefrom will lead only to indiscipline and
H anarchy. The High Courts cannot ignore Art. 141 of the
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 55
BIHAR EDU. SER. ASSN.
Constitution which clearly states, that the law declared A
by this Court is binding on all courts within the territory
of India. When the judgment of a court is confirmed by
the higher court, the judicial discipline requires that court
to accept that judgment, and it should not in collateral
proceedings write a judgment contrary to the confirmed B
judgment. [Para 39) [82-E-F; 83-A-B]
State of West Bengal and others Vs. Shivananda Pathak
and others 1998 (5) SCC 513; Fuzlunbi Vs. K. Khader Vali
=
and another 1980 (3 ) SCR 1127 19~0 (4) sec 125 - C
relied on
1.5. As regards the notification dated 11.4.1977, the
order dated 19.4.2006 passed by this Court at the end of
the second round of the proceedings left no ambiguity
whatsoever, and the State Government was expected to D
follow and honour the same. The Government resolution
dated 7.7.2006 is well reasoned and justifiably issued to
reduce the rigor of stagnation. Whether the resolution of
the problem nas seen as based on the notification of
11.4.1977 or independently under the resolution dated E
7.7.2006, there was no reason to interfere therein. [Para
38) [82-B-D]
1.6. Even otherwise, although the rules do provide for
a channel of promotion to the subordinate teachers,
actually the chances of promotion for them are very less. F
There is a serious stagnation as far as the subordinate
teachers are concerned. The Saran Singh Committee was
essentially constituted to go into this very issue. The
notification issued by the State Govt. on 11.4.1977
approved the recommendation of the Committee, but the G
wording used while approving the recommendation is bit
different. It cannot be disputed that it was for the State
Government to take appropriate decision on the
recommendation. The recommendations made by the
Committee will of course have to be seen as the material H
56 SUPREME COURT REPORTS [2012] 11 S.C.R.
A placed before the Government. However, ultimately, it is
the decision of the Government which is relevant and,
therefore, one has to look at the wording in the
notification of the State Government. The approved
recommendation in the wording used by the State
B Government is, "Various Posts such as Teacher and the posts
of Stadium managers etc should be included in the Bihar
Education SeNice cadre and the Officers of the cadre should
be appointed on these posts." This notification was clearly
understood by the Education Department. The State
c Government had also rightly passed the resolution
7.7.2006 (in concurrence with the Finance Department)
after the decision of this Court at the end of the second
round of litigation. [Para 40-41] [83-D-E-G-H; 84-A-E]
1.7. The decision to merge the cadre is a matter of
D policy. It is for the state to decide as to which cadres
should be merged so long as the decision is not arbitrary
or unreasonable. The resolution dated 7.7.2006 is well
reasoned and justified, and cannot be called arbitrary or
unreasonable to be hit by Art. 14 of the Constitution. It
E deserved to be upheld. It is possible that the merger may
affect the prospects of some employees but this cannot
be a reason to set-aside the merger. Once the State
Government has taken the necessary decision to merge
the two cadres in a given case, the State Govt. is
F expected to follow it by framing the necessary rules. All
the posts in subordinate service other than those
classified as Class-I and Class-II State Services are
mentioned at Item 119 in Appendix-16 of the Bihar
Service Code, 1952. Therefore, it cannot be said that the
G subordinate teachers did not belong to the State Service.
[Para 42-43] [84-F-H; 85-A-B-C]
S.P. Shivprasad Pipal Vs. Union of India and others 1998
(4) sec 598 - relied on.
H 1.8. The Single Judge who heard the petition CWJC
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 57 /'
BIHAR EDU. SER. ASSN.
No.10091/2006, which began the third round of litigation A
filed on behalf of the Bihar Education Service Association,
should not have re-opened the entire controversy, even
otherwise. The State Govt. had already passed a
resolution dated 7.7.2006 after the order of this Court
dated 19.4.2006. While examining the legality of that B
resolution (which was defended by the State Govt. at this
stage before the Single Judge) the entire controversy was
once again gone into. The law of finality of decisions
which is enshrined in the principle of res-judicata or
principles analogous thereto, does not permit any such c
re-examination, and the Judge clearly failed to recognize
the same. The judgment dated 21.5.2010 passed by the
Division Bench of the High Court in LPA No. 418 of 2009
and that of the Single Judge dated 31.10.2007 in CWJC
No.10091/2006 are set-aside and the said writ petition is 0
dismissed. Consequently, the notification dated
19.11.2007 issued pursuant to the decision of the Single
Judge will also stand quashed and set-aside. The State
Government Resolution dated 7.7.2006 is upheld. The
state shall proceed to act accordingly. [Para 44-4!\] [85- E
D-H; 86-A-B]
2. The attitude of the State Government in this matter
has caused unnecessary anxiety to a large number of
-
teachers. The State Government must realise that in a
country where there is so much illiteracy and where there F
are a large number of first generation students, the role
of the primary and secondary teachers is very important.
They have to be treated honourably and given
appropriate pay and chances of promotion. It is certainly
not expected of the State Government to drag them to the G
court in litigation for years together. This Court records
its strong displeasure for the manner in which the State
of Bihar kept on changing its stand from time to time. This
is not expected from the State Government. The manner
H
58 SUPREME COURT REPORTS [2012) 11 S.C.R.
A in which the Single Judge proceeded with Writ Petition
No.10091/2006 to reopen the entire controversy, and also
the Division Bench of the High Court in LPA No.418/2009
in approving that approach is also far from satisfactory.
If the orders passed by this Court were not clear to the
B State Government or any party, it could have certainly
approached this Court for the clarification thereof. But it
could not have setup a contrary plea in a collateral
proceeding. Such an approach was not expected from
the State Government and least from the High Court.
c [Para 46 and 47] [85-C-H]
Case Law Reference
1998 (5) sec 513 relied on Para 39
1980 (3) SCR 1127 relied on Para 39
D
1998 (4) sec 598 relied on Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
8226-8227 of 2012.
E From the Judgment & Order dated 21.5.2010 of the High
Court of Patna in CWJC No. 8679 of 2002 & LPA No. 418 of
2009.
WITH
F Conmt. Pet. (C) No. 386-387 of 2011 in SLP (C) No. 26675-
26676 of 2010.
P.S. Patwalia, Debal K. Banerjee, Nagendra Rai, Amit
Pawan, Rajiv Kumar Sinha, Kumar Prashant, Samir Ali Khan,
G Manish Kumar, Gopal Singh, Akhilesh Kumar Pandey, Shalini
Chandra, Sudhanshu Saran, Swati Chandra, Arun Kumar, B.K.
Chaudhary, Ramestfwar Prasad Goyal, Tapesh K. Singh for the
appearing parties.
The Judgment of the Court was delivered by
H
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 59
BIHAR EDU. SER. ASSN.
H.L. GOKHALE J. 1. Leave granted. A
2. These two Civil Appeals by Special Leave raise the
question with respect to the approach the High Courts and the
State Governments are expected to adopt towards the orders
passed, and the interpretations of Govt. resolutions rendered B
by this Court. The question arises in the context of litigation
concerning the promotional avenues for the teachers in Bihar
Government Service.
The relevant facts:-
c
3. The facts leading to the two Civil Appeals herein are
as follows:-
The State of Bihar, which is respondent No.66 in these two
appeals, set up a three member committee, in March 1976, D
with Shri Saran Singh, Member Board of Revenue, and
Administrative Reforms Commissioner, as its Chairman. The
terms of reference of this Committee were as follows:-
"To hasten the avenues for promotion in the E
Bihar Civil Services, the government has approved
junior selection grade 20%, senior selection grade
12.50% and posts of senior Deputy Collector 2.5%. The
same percentage has been applied for junior selection
grade and senior selection grade in the Bihar F
Engineering Service. On this basis, requests have been
coming from various state services associations that due
to lack of opportunity for promotion in their cadres, there
is stagnation, which must be removed.
1.2. Hence, keeping in view the strength and G
present promotional avenues in various State service
cadres, to analyse the problem of stagnation and to
recommend means to tackle this problem and
promotional opportunities, a committee of the following
officers is constituted:- H
60 SUPREME COURT REPORTS (2012] 11 S.C.R.
A (1) Member, Board of Revenue-Chairman
(2) Chairman, Public Grievances Bureau- Member
(3) Finance Commissioner- Member"
B 4. The committee drew its conclusions on the basis of the
facts and figures furnished by various departments. As stated
in the report, the approach of the committee was to find out:-
(a) what relatively, is the extent of stagnation in different
C services, and the present prospects of promotion, and
(b) how the stagnation can be removed and promotional
opportunities enlarged.
D 5. The committee noted that all the service associations
staked claims for the same percentage of the promotional
posts as allowed to Bihar Civil Service and Bihar Engineering
Service. Two of the reasons for stagnation noted by the
committee were: (i) relatively heavy recruitment of officers of
E the same age group in certain years, (ii) and lack of adequate
number of promotional posts at different levels of the
organizational hierarchy. The recommendations of the
committee with respect to various services are in part 111 of its
report. As far as Bihar Education Service is concerned, it has
been discussed in para (9), thereof. To begin with, the
F committee dealt with the promotional chances of Class-II
officers into Class-I. Then in sub-para B it has dealt with the
posts in specialized institutes like those teaching Sanskrit,
Prakrit and Persian. Thereafter in sub-para C it has dealt with
the Miscellaneous Cadre. The analysis in this part and the
G recommendations read as follows:-
"C. Miscellaneous cadre
11.10. This service consists of 59 posts of different
H
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 61
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.)
categories like teachers, engineers, Doctors, Stadium A
Manager, etc. and excepting the teachers of Netarhat
School who have adequate prospects of promotion within
the cadre, most of the members of the cadre hold isolated
posts with no definite prospect of promotion. No
promotional posts can be provided for because of the B
isolated nature of their job.
In order, however, to minimize the hardships in their
case, the committee would like to make the following
suggestion for consideration of the Education Department:- C
(1) Education department may get the posts of
engineers included in the cadre of the Public Works
Department and obtain their services on deputation
basis.
D
(2) The two posts of the ooctors may also be got
included in the Health service and service of doctors
obtained on deputation basis.
(3) The remaining posts should be included in the E
General cadre and manned by officers of the Bihar
Educational Service as far as practicable."
The committee suggested that the proposals should come
into effect from 1st January, 1977.
F
6. The recommendations of the committee were accepted
by the State Government, and the State Government (Finance
Department) issued a notification dated 11.4.1977, which was
subsequently published in the Gazette Extra-Ordinary on
27.4.1977. The decision with respect to the recommendations G
was contained in Scheduie-1 of the notification. As far as the
education department and the miscellaneous cadre are
concerned, the decision notified reads as follows:-
H
62 SUPREME COURT REPORTS (2012] 11 S.C.R.
A Schedule-1
Sr. Para No. Page Department Name Recommendation the Govt.
No. of com- No. of Committee Decision
mittee service
report
1 2 3 4 5 6 7
B
7 1.10 25 Education Misc. 1) kindly merge the 11,pproved
Department Cadre post of the Engine-
ers of the Education
Department into
c Bihar engineering
Services Cadre and
take the Services
of the Engineers by
means of Deputation
D 2) The posts of doc- Approved
tors should be incl-
uded in the Bihar
Health Services
cadre and as
per the requirement
their service should
E
also be taken on
deputation
3) Various Posts Approved
such as Teacher
(except the teachers
F of Netarhat) and the
posts of Stadium
managers etc
should be included
in the Bihar
Education Service
G cadre and the
Officers of the
cadre should be
appointed on these
posls
H (emphasis supplied)
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. 63
v. BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.]
First round of litigation A
7. It is the case of the petitioner Secondary School
Teachers Association that, though this notification was issued
by the State Government on 11.4.1977, the State Government
took no steps to implement the same. They represented for its
8
implementation from time to time, but that was without any
effect. They learnt that one provisional gradation list was
prepared in the year 1986, but it was never circulated or made
known to the Petitioner association. Another gradation list was
prepared in 1995, and they found that the same had left out the
members of the Petitioner association. Two repri:isentations C
were once again made, including one on 25.5.1998, but that
was also without any effect. Therefore, they were constrained
to file the Writ Petition, bearing No.12122 of 1998, against
the State of Bihar and the concerned officers. In this petition
they specifically claimed (a) that the aforesaid notification of D
11.4.1977 contemplated a merger of their cadre into Bihar
Education Service which consists of class-II employees, and (b)
that any appointment and further promotions are to be made
from the combined cadre. The petition therefore prayed:-
E
(1) for a direction to implement the decision contained in
the notification dated 11.4.1977.
(2) for a direction to prepare a combined gradation list of
the Bihar Education Service Class II after placing the members
of the Petitioner association in their appropriate places along F
with other constituents.
(3) to restrain. the respondents from acting upon the
defective gradation list of 1995
(4) for the consequential reliefs, which meant increase in G
salary and allowances pursuant to the recommendations of the
Pay Revision Committees appointed from time to time.
8. It is relevant to note that in this petition they specifically
pleaded in para 5 that they were also selected through Public. H
64 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Service Commission/ Central Selection Board, and that they
also had qualifications of being graduates with necessary
training, and further that from 1965 onwards they also had to
have a Master's degree. In para 6 of the petition they submitted
that the Saran Singh committee had recommended the merger,
B despite which the defective gradation lists were prepared, first
on 19.7.1986 and thereafter on 13.11.1995, contrary to the
notification of 11.4.1977.
9. Another Writ Petition bearing CWJC No.814711999
was filed by some teachers viz. Smt. Ratan Prabha and Ors.
C This petition drew attention to the issue of pay anomaly. They
also relied upon the notification of 11.4.1977, and prayed for
preparation of a common seniority list for Bihar Education
Service. Both the Writ Petitions were heard together. The State
Government did not file any counter in spite of adequate time
D having been granted. The learned Single Judge of Patna High
Court, observed in his order that it appears that the orders of
merger had not been issued, and the matter was pending with
the State Government, though in the meantime separate
gradation list had been published for one or the other teaching
E cadre. The learned single judge therefore, passed the following
order dated 2.2.2000:-
"In the circumstances, I direct the commissioner
cum Secretary, Secondary, Primary and Mass
F Education, government of Bihar to act upon the
government decision contained in Resolution dated
11.4.1977 so far it relates to the Education Service of the
Education Department.·
10. The State of Bihar felt aggrieved by this common order
G passed in the two Writ Petitions, and therefore filed two Letters
Patent Appeals No.980 and 998 of 2000. The State
Government contended that there was no proposal to merge
the sub-ordinate teachers into the Bihar Education Service
Class-II. It was further pointed out that 50% posts of Bihar
H Education Service Class-II were filled by the promotion of the
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 65
BIHAR EDU. SER. ASSN. tH.L. GOKHALE, J.J
'
subordinate teachers. This was however, denied bt.the A
appellants herein by pointing out that factually however, hardly
any such promotions had taken place. They also pointed out
that the notification dated 11.4.1977 had been implemented in
other services in the manner in which they were canvassing.
The Division Bench dismissed these lwo appeals by order B
dated 27.11.2000, wherein it observed:-
'
"In our view, since this court by order dated 2.2.2000.
has specifically directed the Government to take a
decision in terms of the res-Olution dated 11.4.1977, there C
appears no reason for the State to be aggrieved by such
order.•
11. The State Government carried the matter further to this
Court in SLP Nos.4937-4938/2001, and this Court dismissed ·
the two SLP's by its order dated 16.4.2001 which reads as D
follows:-
"CORAM:
Hon'ble Mr. Justice B.N Kripal
E
' Ruma Pal
Hon'bte. Mrs Justice
"Upon hearing the counsel the court made the following
. ORDER
F
lt is clear that the final direction which has been given
to the Petitioner to implement the resolution dated 27th
April, 1977 in the manner ii is meant to be implemented.
The petitions are disposed of."
G
Second round of litigatlon
12. It is, however, seen that inspite of the orders passed
as above, State of Bihar did not issue the necessary orders
for merger of the subordinate cadre of teachers into the Bihar
Education Service, and consequential rise in pay. This led a H
66 SUPREME COURT REPORTS - [2012) 11 $.C.R.
A subordinate-service teacher, one Shri Janardan Rai, to file a
fresh Writ Petition, being CWJC No.8679 of 2002. He
referred to the orders passed above, and prayed for
consequential benefits along with fixation of pay in terms of the
State GO\lemment Notification dated 11.4.1977, and in terms
B of the order dated 2.2.2000 passed in above referred CWJC
No.12122 of 1998. which had been upheld by the Supreme
Court, ·
13. This petition was opposed by the Additional Finance
Commissioner of the state of Bihar, by filing an affidavit. In para
C 13, he specifically stated that the decision contained in the
aforesaid notification is not al all related to the non-gazetted
cadre of teachers of Government High Schools, and therefore,
implementation of the order of the Hon'ble Court does not
require merger of the Subordinate Education Service with the
D Bihar Education Service. In para 25, he contended that the
word 'teachers' mentioned in Item No.7 of Schedule-1 of the
notification of 1977 referred to those isolated posts of teachers
who had been part of the umbrella service, namely, Bihar
Education Service, but who did not have any proper cadre, and
E therefore had no opportunities of promotion available to them.
In para 26 he contended that the Saran Singh Committee report
had made clear that the report was exclusively about the cadres
within the Gazetted State Services.
F 14. The Director (Administration) cum Deputy Secretary,
the Department of Secondary, Primary and Mass Education of
Government of Bihar, filed two affidavits. In the first affidavit, he
staled in para 4(c) that in the notification there is no mention
of 59 posts, and hence the confusion arose. He further stated
G that the Government had, therefore, decided to locate those 59
posts by an advertisement and call for information. ln para 6/A
of the second affidavit, however, he stated that there was no
mention of any merger in the notification.
15. The learned Single Judge who heard the petition
H referred 'lo the earlier on:iera up to the Supreme Court, and then
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 67
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.]
observed that, in view thereof, the matter should have attained A
finality. He further observed that it was really unfortunate that
the state had again started giving its own different meaning to
interpret the aforesaid orders, rather going to the extent of even
stating that some shadow-boxing had been done in the High
Court and the Supreme Court, to obtain certain orders. He B
stated that.it appeared from the notings on the files of the State
Government that the Education Department had, in fact, taken
a decision to implement the aforesaid notification, and
prepared a draft notification for the approval of the Finance
Department, so that the orders of the High Court, for c
implementing the notification of 11.4.1977, are complied with.
He also recorded that the said draft notification speaks of about
2465 sanctioned/ created posts. He stated-
" ... The said draft clearly goes to show that the
Education Department has found that the petitioner and D
other similarly situated persons were also required to be
merged in the Bihar Education SeNice, in view of the
aforesaid resolution. However, final approval of the
Finance Department was sought for, before final direction
was issued in this regard. The said resolution speaks E
about 2465 sanctioned/created posts. As such it appears
that the only obstacle which remains in non-
implementation of the resolution is concerned is the
functionaries of the Finance Department, who are giving
a different meaning to the said resolution." F
16. The Learned Judge, therefore, heard the arguments
of the counsel for the Finance Department exhaustively, and
observed that if the meaning, which is tried to be given to the
notification dated 11.4.1977, is to be accepted, the whole
notification relating to the Bihar Education Service would G
become redundant. That apart, he observed "today it does not
lie in the mouth of authorities to give it any other interpretation
rather they are sitting over the orders of the High Court, as well
as the Supreme Court." He, therefore, directed them to
implement the notification of 1977 in its totality, within a period H
68 SUPREME COURT REPORTS [2012) 11 S.C.R.
A of six weeks, failing which, they would be liable to be proceeded
for violation of the said order and the order dated 2.2.2000, as
well as the orders of the LPA Bench and the Supreme Court
of India. He granted liberty to the petitioner to bring a petition
before the Court in that very writ application itself, so that, if
B necessary erring respondents can be proceeded against in
accordance with law.
17. This order was again challenged by the State
Government in LPA No.6512003. Additional grounds were
C raised in the LPA. One of them was that if the interpretation of
the term 'teachers' accepted by the learned single judge was
approved, it will lead to the teachers other than those in
Government service claiming the benefits of Bihar Education
Service Class-II. Secondly, it was contended that the
subordinate education service was not a state service. The
D Division Bench of the High Court however, dismissed the LPA
by its order dated 10.3.2003, observing that the controversy had
already attained finality with the order of the Supreme Court and
nothing more was required to be recorded before passing this
orqer. However, in the meanwhile Division Bench had also
E passed an order dated 27.1.2003 directing the Chief Secretary,
Government of Bihar and Director Administration of Bihar to
remain present in the appeal to explain the non-implementation.
18. These two orders led the State Government to file Civil
F Appeal No.446612003, wherein the earlier grounds were
reiterated. A counter was filed on behalf of Janardhan Rai &
Ors. by the Gen. Secy. Of the Bihar State Government
Secondary School Teachers Association which had been
impleaded as a respondent by an order passed by this Court.
G Therein it was specifically stated in paragraph 13 as follows:-
•...... Thus, since the members of the Respondent
Association belonged to a clearly identifiable cadre
known as "B.S.E.S Cadre" and were not part of any
isolated post and also since their posts were not declared
H "Gazetted"-then, they clearly fell within the purview of
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 69
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.]
those State services covered by the Saran Singh A
Committee. It is also relevant to mention here that the
term "State Service" used by the Petitioners has not been
defined anywhere. This is evident from the Fitment
Committee report, Government of Bihar published in
1998. Thus in the absence of any special definition, the B
words "State Service" would mean Government Service
of the State regulated by State Service Code."
The Civil Appeal was dismissed by this Court by its order
dated 19.4.2006 which we quote in the entirety:-
c
"IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL N0.4466 OF 2003
STATE OF BIHAR & ORS. ... APPELLANTS
D
VERSUS
JANARDAN RAI & ANR ... RESPONDENTS
ORDER
E
Heard learned counsel on both sides.
That a Government Resolution passed in 1977 has
not yet been implemented and continues to be the
subject matter of a spate of litigation, despite 14 orders
of different Courts, is something that shocks the F
conscience of this Court.
The Order of the High Court in Letters Patent
Appeal, which has resulted in the present Appeal is a
short (one paragraph) order, but the background appears G
to be voluminous. Learned counsel on both sides have
taken us through the various documents on record. After
patiently plodding through the record and the various
orders, the only point that needs to be considered is,
whether the Resolution No 3521 F2 dated 11th April,
H
70 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 1977 of the State Government has been implemented in
respect of the Members of the Bihar Subordinate
Education Service comprising Male and Female
teachers. According to the Respondents, its
implementation would mean merger of the cadre of
B teachers belonging to the Bihar Subordinate Education
Service with the Bihar Education Service Class 2; the
stand of the State Government is that this Resolution,
which accepts and implements the report of the Saran
Singh Committee (Paragaph 11.10), has nothing to do
c with the Members of the Bihar Subordinate Education
Service Cadre.
Writ Petitions were filed before the High Court
of Patna and they were allowed in favour of the
teachers holding that such merger is contemplated in
o the concerned Government Resolution. A contempt
petition was also taken out alleging non-implementation
of the High Court's order, which had directed the State
specifically to implement the concerned Resolution
dated 11th April, 1977.
E The contempt petition is still pending before the
High Court and has been stayed in the present appeal.\
'
At the end of the day, we are satisfied that whether
the implementation has been done in the manner
required by the Resolution or not is for the High Court to
F decide since the High Court is in seisin of the contempt
petition. Hence, we feel that it is not necessary for us to
interfere in the matter, particularly since our attention has
been drawn to the statements made on the floor of the
legislative assembly that the Government itself is
G thinking of implementing the Resolution in the manner
that is being suggested by the Respondents. In any
event, since the contempt petition is pending, the High
Court will examine the matter and, if satisfied that the
Resolution has not been implemented, deal with the
H contemnors according to law. In this view of the matter,
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. 71
v. BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.)
we do not think that it is necessary for us to interfere at A
all.
Civil Appeal is dismissed. No order as to costs.
Stay of the contempt proceedings is vacated forthwith .
.......................... J.
(B.N. Srikrishna) B
.................................. J.
(Lokeshwar Singh Panta)
New Delhi April 19, 2006"
19. It appears that in view of this "judgment of this Court in C
the second round of litigation, the State Government ultimately
moved to take the decision as canvassed by the subordinate
teachers. The Cabinet took the necessary decision on
3.7.2006. The memorandum prepared by the administration for
the consideration of the Council of Ministers referred to the 0
earlier developments in the first 10 paragraphs. Paragraphs 11
to 18 of this memorandum which was approved by the Cabinet
read as follows:-
" 11. The department prepared an estimate of E
financial burden involved. According to a provisional
estimate the estimated amount difference is near about
Rs. 64 crore. But because almost all the beneficiaries
have got the benefit of first ACP therefore on this count
after deducting a moderate amount it comes to near
about Rs. 48 crores 62 lakhs. In' additional to this, so F
many of the beneficiaries are entitled to get the benefit
of 2nd ACP. If they are granted, the 2nd ACP then the
estimates amount will further come down.
12. In the year 1977 the No. of total created/ G
sanctioned post of the· male and female teachers were
2465 against which total working strength was 1336, which
decreased to 880 by the years 2006, out of this if 301
units belonging to Jharkhand is deducted it comes to 579
only. H
72 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 13. It is to be noted that in view of the provisions
contained in resolution No. 3521 dated 11. 04. 1977
several departments have merged the lower scales with
the higher ones. But the incumbents of this cadre of the
Education Deptt. have been denied their promotions after
B 1977 which was otherwise due. Whereas the incumbents
of Inspecting Branch of this cadre are reported to have
been promoted upto 2001.
14. The officers of the Bihar Education Service in
their representation against this merger are apprehending
c that this merger wilf'harm their interest. But the Deptt. has
no such knowledge about them to be an intervener or a
party in CWJC, LPA and SLP filed in this regard. Most
of the beneficiaries of this merger are on the verge
of retirement therefore there is no possibility of a
D major harm to be caused to the officers of the Bihar
Education Service.
15. Therefore consequent upon-complying the
orders of the Hon'ble Courts it is proposed to upgrade
E 2465 created/sanctioned posts of teachers of
subordinate education service male and female cadre
with Bihar Education Service Class-2 w.e.f 01.07.77.
16. The concurrence of Finance Deptt. has been
obtained.
F
17. The approval of the Departmental Minister has been
obtained in the proposal.
18. The approval of the council of ministers in the
proposal contained in para 15 of the memorandum is
G
solicited.·
(emphasis supplied)
20. Accordingly, necessary resolution was issued under the
H order of the Governor of Bihar on 7.7.2006, stating that the
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 73
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.]
teachers of the Subordinate Education Service (Teaching A
Branch) male and female cadre, are merged into Bihar
Education Service Class II w.e.f. 1.1.1977, in accordance with
the Finance Department Notification dated 11.4.1977, and that
appropriate orders will follow after evaluating personal benefits
arising out of the order. A notification was also subsequently B
issued on 9.10.2006 giving effect to the above resolution with
respect to three teachers mentioned specifically in that
notification.
Third round of litigation
c
21. Now, it was the turn of the Bihar Education Service to
file their Writ Petition bearing CWJC No.10091/2006,
wherein, they challenged the Government resolution dated
7.7.2006 providing for the merger of the Bihar Subordinate
Education Service into the Bihar Education Service Class-II. It D
was contended that the Bihar Subordinate Education Service,
to which the secondary teachers belonged was quite different
from the Bihar Education Service Class-II. This was on the
footing that their modes of recruitment and minimum
qualifications were different. It was submitted that the merger E
will affect their seniority and therefore the decision is arbitrary
and violative of Article 14 of the Constitution. The State
Government opposed this petition by filing an affidavit. It was
pointed out by the State Government that the Govt. resolution
dated 7.7.2006 had been issued in view of the judgments of F
the High Court as approved by the Hon'ble Supreme Court. The
opinion of the Advocate General was also tendered that the
Govt. had no option ·but to implement the notification of
11.4.1977 as regards the merger of the two services. The
intervener Bihar Education Service Association also opposed G
this petition and pointed out that the earlier Writ Petitions were
allowed by the High Court in favour of the teachers holding that
the merger was contemplated in the Govt. notification and the
SLP therefrom had been dismissed.
22. The learned Single Judge, however, referred to the H
74 SUPREME COURT REPORTS [2012] 11 S.C.R.
A observation of this Court in its order dated 19.4.2006, that it
was for the High Court to decide whether the notification of the
State Govt. has been implemented in the manner required by
the notification, and therefore examined the legality of the
resolution dated 7.7.2006 by re-examining the earlier
B notification dated 11.4.1977. He took the view that the Govt.
decision accepting the recommendation of the committee as
recorded at Serial No.7 of Schedule 1 was concerning the
miscellaneous cadre only, and while doing that there was no
occasion for State to take a decision about Bihar Education
c Service and to merge the teaching branch, male and female,
of the Bihar Subordinate Education Service with the Bihar
Education Service. He therefore allowed CWJC No.10091 /
2006 by his judgment and order dated 31.10.2007 and
quashed the resolution dated 7.7.2006.
D 23. Along with the above writ petition, the learned Single
Judge heard another Writ Petition bearing CWJC No.14678/
2006 which was filed by 51 subordinate teachers who on the
other hand claimed the benefit of the very Govt. resolution dated
7.7.2006. The learned Judge disposed of that petition with
E same common order, but directed the Govt. to consider their
cases if they are in any way situated similar to the
miscellaneous cadre.
24. It is relevant to note that after this judgment and order
F of learned Single Judge dated 31.10.2007, the Govt. of Bihar
came out with a consequential notification dated 19.11.2007
quashing the above Resolution No.1209 dated 7.7.2006 (which
had merged the teachers of subordinate services into Bihar
Education Service Class-II), and withdrawing the financial
G benefits flowing therefrom.
25. Some of the individual teachers who felt aggrieved by
this judgment and order dated 31.10.2007, filed LPAs Nos.941/
2007, 946/2007, 94712007 and 97412007. As far as the
Secondary School Teachers Association is concerned it directly
H filed an SLP to this Court against the order dated 31.10.2007,
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. 75
v. BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.)
bearing SLP No.8031/2008, but this Court vide its order dated A
16.3.2009 noted that those individual LPAs were pending
before the High Court, and therefore granted liberty to the
association to approach the High Court by way of LPA.
Accordingly, the petitioner association filed LPA No.418/2009.
All those LPAs were heard together. B
26. The appellant association as well as the Bihar
Education Service Association reiterated their positions before
the Division Bench. The appellant association principally
contented that after the decision of the Supreme Court dated
19.4.2006, it was not permissible for the learned Single Judge C
to re-open the entire controversy, otherwise there would never
be any finality. The decision of the learned Single Judge was
however defended by the Bihar Education Service Association
by contending that no definite decision had been arrived at in
the earlier proceedings. As noted earlier the State of Bihar had D
defended, before the learned Single Judge, the Resolution
dated 7.7.2006 approving the merger. However, the State
changed its stand before the Division Bench. As can be seen
from para 38 of the judgment of the Division Bench, it was
contended on behalf of the State Govt. that neither in the E
notification of the Finance Department dated 11.4.1977 nor in
any order of this Court except in CWJC No.8679 of 2002 (the
contempt petition wherein was being heard with these appeals)
it had even remotely been decided as regards the merger of
the teachers of SES in BES. Thereafter, the para records the F
stand of the State Govt. as follows:-
•As with regard to the order passed by the learned
Single Judge in CWJC No. 8679 of 2002, it was sought
to be explained by the learned Advocate General that G
since that case itself was being heard along with these
appeals as per the order of the Apex Court dated
19.4.2006, the same could not be treated as a binding
precedenr.
27. The Division Bench took the view that the State Govt. H
76 SUPREME COURT REPORTS [2012] 11 S.C.R.
A had issued the resolution 7.7.2006 under the threat of contempt,
though the judgment does not record any such submission on
behalf of the State Govt. The judgment indicates that in the
opinion of the Division Bench the order of this Court dated
19.4.2006 did not prohibit the learned Single Judge from going
B into the entire controversy. The Division Bench accepted that
unless rules were framed, there could not be any merger since
there was no parity in the pay of the subordinate teachers and
the Bihar Education Service Class-II employees. After referring
to the report of the Saran Singh Committee, the Division Bench
c formed the opinion that the notification of the State Govt. dated
11.4.1977 will have to be confined only to 59 posts in the
miscellaneous cadre.
28. The LPAs were therefore dismissed by the Division
Bench by the impugned judgment and order dated 21.5.2010.
D The Division Bench by the same order also dropped the
contempt matter then pending in CWJC No.8679/2002. The
orders passed by the learned Single Judge as well as by the
Division Bench have led to the present two Civil Appeals
(arising out of SLP (C) Nos.26675-76 of 2010), which is the
E third occasion when this controversy is coming up to this Court.
29. When the Special Leave Petitions leading to these
appeals came up for consideration, initially a notice was issued
on 7 .3.2011, and lateron after hearing the counsel for
respondents, the operation of the judgment and orders passed
F by the learned Single Judge as well as by the Division Bench
came to be stayed by an order passed on 4.7.2011. The State
of Bihar has now moved IA Nos. 19-20 of 2011 to vacate the
order of stay. The appellants on the other hand have contended
that in view of the stay granted by this Court, the State of Bihar
G and its officers are expected to take steps to implement the
Resolution dated 7.7.2006, and since that was not being done
they have filed the Contempt Petition (Civil} No.386-387 of
2011 against the Chief Secretary of the Govt. of Bihar and its
other officers. The Civil Appeals, the I.A for vacating the stay
H order and the Contempt Petitions have been heard. and are
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 77
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.]
being decided together. Shri Patwalia, learned Senior Counsel A
has appeared for the appellants, Shri Nagendra Rai, learned
Senior Counsel has appeared for the State of Bihar and its
officers, and learned counsel Shri Akhilesh Kumar Pandey has
appeared for the Bihar Education Service Association and its
members. B
Submission of the rival parties
30. It was submitted on behalf of the appellants that the
learned Single Judge and the Judges of the Division Bench
who have passed the impugned order have failed to grasp the c
true import of the order passed by this Court on 19.4.2006. All
that remained to be done thereafter was to monitor the
contempt proceedings in Writ Petition No.8679/2002. This
limited scope was exceeded by them to re-open the entire
controversy. If this is approved, there would never be any end 0
to the litigation. It was submitted by Mr. Patwalia, learned senior
counsel for the appellants, that the fact of stagnation in the
services of the subordinate teachers was not being disputed.
What was being contended was that the recommendation of
Saran Singh Committee was concerning only 59 miscellaneous E
posts and that was approved by the State Govt. in the
notification of 11.4.1977. In his submission, this reading of the
recommendation was not correct. In any case, the notification
of 11.4.1977 has to be read on its own. Besides, in the present
matter the Court is concerned with the challenge to the Govt.
Resolution dated 7.7.2006. The implementation of this F
notification was not going to cause any serious financial burden
on the State Govt. The State Govt. was to upgrade the posts,
and thus the subordinate teachers were to carry their own posts
in the Bihar Education Service Class-II, though not many of
those teachers were going to benefit since most of the G
beneficiaries have already retired or are on the verge of
retirement as stated in the resolution. As far as seniority is
concerned, he submitted that the subordinate employees who
remain in service will get seniority from 1977, and naturally
those who joined the service subsequently will be placed H
78 SUPREME COURT REPORTS [2012] 11 S.C.R.
A thereafter. Mr. Patwalia therefore submitted that these appeals
should be allowed, and the challenge to the resolution dated
7.7.2006 be repelled. He, however, fairly stated that he was not
pressing for the action in contempt.
31. As against this, it was submitted on behalf of the
8
employees of the Bihar Education Service that the Subordinate
Education Service is a feeder cadre for promotion to the Bihar
Education Service. Their pay is different, and the merger, as
proposed in the resolution dated 7. 7.2006, will affect their
seniority retrospectively. In their submission, the State Govt.
C notification of 11.4.1977 has basically to be read in the light of
the Saran Singh Committee report, which according to them
did not extend the recommendations to the cadre of the
subordinate teachers. Mr. Akhilesh Kumar Pandey learned
counsel, appearing for them, therefore submitted that the SLPs
D should be dismissed.
32. On behalf of the State of Bihar submissions were
advanced by Mr. Nagendra Rai, learned senior counsel. He
submitted that the notification passed by the State Govt. on
E 11.4.1977 ought to be read as confined to the Saran Singh
Committee report only. There was no merger contemplated in
the Govt. notification, and the order of this Court dated
19.4.2006 should not be read as confined only to the hearing
of the Contempt Petition by the High Court. He submitted that
F the subordinate service employees have otherwise also
prospects of promotions under their service rules. The Saran
Singh Committee Report was only for the employees of the
State Service and the subordinate service did not form part of
the State Service. The report was meant for only those who did
G not have scope for promotion in the State Service, and therefore
the SLPs be dismissed.
Consideration of the rival submissions
33. We have considered the submissions by the counsel
H for the rival parties. The above narration of the facts and legal
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 79
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.]
submissions shows that when the first Writ Petition No.12122 A
of 1998 was filed by the appellant, the State Government did
not even care to file a counter. The learned Single Judge went
through the material on record and noted that the order for
merger had yet not been passed, and the matter was pending
before the Govt. The learned Judge, therefore, passed the order B
'directing the Secretary, Education Department to act on the
Govt. resolution dated 11.4.1977. The State of Bihar chose to
file an appeal before the Division Bench where for the first time
it stated that there was no proposal for merger. The Division
Bench which heard tne appeal noted that the direction of the c
Single Judge was to act in terms of the Govt. resolution and
therefore there was no reason for the State to feel aggrieved.
When the State Govt. filed the SLP, this Court observed that
the final direction given to the State was to implement the
resolution in the manner it was meant to be implemented, and D ·
disposed of the SLP. Thus, it was clear at the end of the first
round of litigation that the petition filed by the appellant had been
allowed by learned Single Judge, and that order had been left
undisturbed in the appeals therefrom by the Division Bench as
well as by this Court.
E
34. As is seen from the further events that in spite of these
orders the State Government did not take the steps to
implement the notification dated 11.4.1977, in the manner
accepted as valid in the first round of litigation. This inaction
led Shri Janardhan Rai and some other teachers to file one F
more Writ Petition being CWJC No.8679 of 2002 for the
implementation thereof, and the merger of subordinate teachers
into the Bihar Education Service Class-II. It is however seen
that, at this stage there was a difference of opinion between
the Finance Department and the Education Department of the G
State Govt. The Finance Department continued to maintain that
the subordinate Education Service could not be merged into
the Bihar Education Service Class-I I. The Education
Department however in its first affidavit, in this Writ Petition,
recorded that the notification of 11.4.1977 did not state that it H
80 SUPREME COURT REPORTS (2012] 11 S.C.R.
A is concerning only 59 posts. Notings on the files of the Govt.
clearly showed that the Education Department had understood
that for the implementation of the notification, the merger of the
two cadres was necessary, and had for that purpose prepared
a draft resolution for the approval of the Finance Department.
B In view of this factual scenario, and also in view of the previous.
orders, the learned single judge allowed the CWJC No.8679/
2002, and passed the order directing the steps for merger of
the subordinate teachers into the Bihar Education Service. The
appeal of State of Bihar was also dismissed by the Division
c Bench by observing that the controversy had already attained
finality with the orders of the Supreme Court.
35. The order passed by this Court, thereafter, in the Civil
Appeal filed by the State Govt. bearing No.4466 of 2003 dated
19.4.2006 has to be read on this background. In the very first
D para this Court has recorded that the non-implementation of the
notification passed in 1977 for such a long time had shocked
its conscience. In the second paragraph, the Court has
recorded the submissions of the rival parties. In the third para,
the Court specifically recorded that the writ petitions filed in the
E High Court were allowed in favour of the teachers holding that
such merger is contemplated in the concerned Government
notification. All that is recorded thereafter is concerning the
Contempt Petition, which was pending in the High Court, and
which was concerning the non-implementation of High Court's
F order, which had directed the implementation of the Govt.
notification dated 11.4.1977. As the further paragraphs of this
order record, all that remained to be looked into was whether
the implementation has been done in the manner required by
the notification. It is also relevant that before dismissing the Civil
G Appeal filed by the State Govt., the Court recorded that the
Govt. was also thinking of implementing the notification in the
manner suggested by the respondents before the Court (that
is the appellants herein). Therefore, ultimately the Court
directed that High Court will examine the matter and if satisfied
H that the notification has not been implemented, deal with the
BIHAR STATE GOVT SEC. SCHOOL TECH. ASSN. v. 81
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.]
contemnors in accordance with law. Therefore, the Court A
vacated the stay on the contempt proceedings forthwith.
36. Thus, all that remained thereafter to be done was to
decide the pending Contempt Petition in--Writ Petition CWJC
No.8679 of 2002. The state of Bihar undeJ~lood the decisions B
so far correctly, and therefore passed the resolution dated
7.7.2006 accepting the view point, which had found favour with
the High Court as well as this Court, recommending the merger
of the two cadres and upgradation of the teachers. The
resolution also recorded that the merger would not have any C
serious financial implications nor would it affect seniority of
many employees since most of the employees, to be merged,
had either retired or were on the verge of their retirement.
37. In this background when the Bihar Education Service
employees filed their Writ Petition being No.CWJC 10091 of D
2006, the State Government rightly defended its resolution
dated 7.7.2006. However, the learned Single Judge failed to
understand the import of the decision of this Court, and thought
that he had the liberty to reopen the controversy despite the
decisions rendered in the first two rounds. He, therefore, passed E
the order allowing that Writ Petition. Now what we find is that
the State Government once again changed its stand, and
issued a Notification canceling the Resolution dated 7.7.2006.
And when the appellants preferred their LPA, the State
Government continued to maintain its changed position. To say F
the least this was not expected from the State Government.
Unfortunately enough, the Division Bench also approved this re-
opening of the controversy once again.
38. In the present appeals we are concerned with the
legality of the Govt. Resolution dated 7.7.2006 which the State G
Govt. defended before the single judge but gave up the defence
in the appeal before the Division Bench. The State Govt. went
to the extent of contending that the decision in CWJC No.8679/
2002 could not be treated as binding, although it had been
confirmed by Division Bench and by this Court. Unfortunately H
82 SUPREME COURT REPORTS [2012] 11 S.C.R
A enough we must record that the Division Bench also failed to
interfere with this digression on the part of the State Govt. and
the learned Single Judge. The Division Bench ignored that,
assuming that perhaps two views could be canvassed earlier
while interpreting the notification dated 11.4.1977, the order
B dated 19.4.2006 passed by this Court at the end of the second
round of these proceedings left no ambiguity whatsoever, and
the State Govt. was expected to follow and honour the same.
The State Govt. did act accordingly, and issued the Govt.
resolution dated 7. 7 .2006 to honour the judgments. But
c immediately after the decision of the single judge in CWJC
10091 of 2006, went to the other extreme to rescind the same,
and not to defend it in appeal. We have noted the contents of
the Govt. resolution dated 7.7.2006. In our view it is well
reasoned and justifiably issued to reduce the rigour of
D stagnation. Whether the resolution of the problem was seen as
based on the notification of 11.4.1977 or independently under
the resolution dated 7. 7.2006, there was no reason to interfere
therein.
39. The hierarchy of the Courts requires the High Courts
E also to accept the decision of this Court, and its interpretation
of the orders issued by the executive. Any departure therefrom
will lead only to indiscipline and anarchy. The High Courts
cannot ignore Article 141 of the Constitution which clearly
states, that the law declared by this Court is binding on all
F Courts within the territory of India. As observed by this Court in
para 28 of the State of West Bengal and others Vs.
Shivananda Pathak and others reported in 1998 (5) SCC
513:-
"If a judgment is overruled by the higher court, the
G
judicial discipline requires that the judge whose judgment
is overruled must submit to that judgment. He cannot, in
the same proce(ldings or in collateral proceedings
between the same parties, rewrite the overruled
. dgmen t.......... "
JU
H
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 83
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.)
In the same vein we may state that when the judgment of A
a Court is confirmed by the higher court, the judicial discipline
requires that Court to accept that judgment, and it should not
in collateral proceedings write a judgment contrary to the
confirmed judgment. We may as well note the observations of
Krishna Iyer, J. in Fuzlunbi Vs. K. Khader Vali and another B
reported in 1980 (4) sec 125:-
"..... .. No judge in India, except a larger Bench of
the Supreme court, without a departure from judicial
discipline can whittle down, wish away or be unbound by C
the ratio of the judgment of the Supreme Court."
40. That apart, even if one looks to the merits of the rival
contentions, there is no dispute that although the rules do
provide for a channel of promotion to the subordinate teachers,
actually the chances of promotion for them are very less. There D
is a serious stagnation as far as the subordinate teachers are
concerned. The Saran Singh Committee was essentially
constituted to go into this very issue. As can be seen from the
report of the committee, the various service associations in the
State were clamouring for appropriate provision for_promotion E
on par with the Bihar Engineering Service. It is true that the
report of the committee does refer to the 59 posts in the
miscellaneous cadre while examining the problem. However,
after directing the shifting of the engineers in the Education
Department to the Public Works Departrrient, and the doctors F
to the Health Services in sub-clause (1) and (2) of para 11.10,
the committee recommended in sub-clause (3) that "the
remaining posts should be included in the general cadre and
manned by officers of Bihar Education Service as far as
possible". The notification issued by the State Govt. on G
11.4.1977 approved the recommendation of the committee, but
the wording used while approving the recommendation is bit
different.
41. It cannot be disputed that it was for the State Govt. to
take appropriate decision on the recommendation. The H
84 SUPREME COURT REPORTS [2012] 11 S.C.R.
A recommendations made by the committee will of course have
to be seen as the material placed before the Govt. However,
ultimately, it is the decision of the Govt. which is relevant and
therefore one has to look at the wording in the notification of
the State Govt. Here the approved recommendation in the
B wording used by the State Govt. is as follows:-
"Various Posts such as Teacher (except the teachers
of Netarhat) and the posts of Stadium managers etc
should be included in the Bihar Education Service
cadre and the Officers of the cadre should be
c appointed on these posts."
(emphasis supplied)
This notification was clearly understood by the Education
D Department. Earlier it had prepared the d;aft resolution for the
approval of the Finance Department recommending the merger
of the two cadres. And later the State Govt. had also rightly
passed the resolution 7.7.2006 (in concurrence with the
Finance Department) after the decision of this Court at the end
E of the second round of litigation.
42. Much emphasis was laid by the Bihar Education
Service Association on the absence of common service rules,
to oppose the merger of the subordinate service employees
into the State Service Class-II. In this context we must note that
F the decision to merge the cadre is a matter of policy as held
by this Court in S.P. Shivprasad Pipal Vs. Union of India and
others reported in 1998 (4) SCC 598. It is for the state to
decide as to which cadres should be merged so long as the
decision is not arbitrary or unreasonable. As stated earlier, the
G resolution dated 7.7.2006 is well reasoned and justified, and
cannot be called arbitrary or unreasonable to be hit by Article
14. It deserved to be upheld. It is possible that the merger may
affect the prospects of some employees but this cannot be a
reason to set-aside the merger. Once the State Govt. has taken
H the necessary decision to merge the two cadres in a given
BIHAR STATE GOVT. SEC. SCHOOL TECH. ASSN. v. 85
BIHAR EDU. SER. ASSN. [H.L. GOKHALE, J.]
case, the State Govt. is expected to follow it by framing the A
necessary rules.
43. One of the pleas raised by the employees of the Bihar
Education Service was that the subordinate teachers did not
belong to the State Service. We may note at this stage that in
their list of dates and events of the Civil Appeals, the appellants B
have specifically referred to the fact that these subordinate
services are included in Appendix-16 of the Bihar Service
Code, and therefore, it is contended that it will be incorrect to
state that the subordinate•service is not a part of the State
Service. If we refer to the code we find that all the posts in C
subordinate service other than those classified as Class-I and
Class-II State Sel"Vices are mentioned at Item 119 in Appendix-
16 of the Bihar Service Code, 1952. Thus, there is no merit in
this objection as well.
44. This entire discussion leads us to only one conclusion D
that the learned Single Judge who heard the petition CWJC
No.10091/2006, which began the third round of litigation filed
on behalf of the Bihar Education Service Association, had no
business to re-open the entire controversy, even otherwise. The
State Govt. had already passed a resolution dated 7.7.2006 E
after the order of this Court dated 19.4.2006. While examining
the legality of that resolution (which was defended by the State
Govt. at this stage before the learned Single Judge) the entire
controversy was once again gone into. The law of finality of
decisions which is enshrined in the principle of res-judicata or F
principles analogous thereto, does not permit any such re-
examination, and the learned Judge clearly failed to recognize
the same.
45. For the reasons stated above, these appeals (arising
out of SLP Nos.26675-76 of 2010) are allowed. The judgment G
and order passed by the Division Bench of Patna High Court
in LPA No.418/2009 and other LPAs dated 21.5.2010, and that
of the learned Single Judge dated 31.10.2007 in CWJC
No.1009112006 are set-aside and the said Writ Petition is
hereby dismissed. Consequently the notification dated H
86 SUPREME COURT REPORTS (2012) 11 S.C.R.
A 19.11.2007 issued pursuant to the decision of the Single Judge
will also stand quashed and set-aside. The State Govt.
Resolution dated 7.7.2006 is upheld. The state shall proceed
to act accordingly. I.A. Nos.19-20/2011 are dismissed. As
stated by Mr. Patwalia, learned senior counsel for the
B appellants, the appellants no longer press for the action for
contempt arising out of CWJC No.8679/2002. Contempt
Petition Nos. 386-387/2011, will also accordingly stand
disposed of, as not pressed.
46. The attitude of the State Govt. in this matter has caused
c unnecessary anxiety to a large number of teachers. The Slate
Govt. must realise that in a country where there is so much
illiteracy and where there are a large number of first generation
students, the role of the primary and secondary teachers is very
important. They have to be treated honourably and given
0 appropriate pay and chances of promotion. It is certainly not
expected of the State Govt. to drag them to the Court in litigation
for years together.
47. Though the appeals stand disposed of as above, we
do record our strong displeasure for the manner in which the
E State of Bihar kept on changing its stand from time to time. This
is not expected from the State Govt. The manner in which the
learned Single Judge proceeded with the Writ Petition
No.1009/2006 to reopen the entire controversy, and also the
Division Bench in LPA No.418/2006 in approving that approach
F is also far from satisfactory. If the orders passed by this Court
were not clear to the State Govt. or any party, it could have
certainly approached this Court for the clarification thereof. But
it could not have setup a contrary plea in a collateral
proceeding. We do not expect such an approach from the State
G Govt. and least from the High Court. Having stated this, although
we have expressed out displeasure about the approach of the
State Government, we refrain from passing any order as to
costs.
R.P. Appeals disposed of.
H
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