Supreme Court of India
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN.versusASHOK KUMAR SINHA & ORS.
- Citation
- 2014 INSC 372
- Decided
- 7 May 2014
- Disposal
- Disposed off
- Bench
- S S NIJJAR
Holding
The Bihar Education Rules, 2014, which effectively undid the Supreme Court‑ordered merger, amount to contempt of court, and the combined 2007 gradation list must be revived or Rule 27 amended to grant teachers equal rights, with implementation within three months.
Summary
The Bihar State Government Sec. SCL. Teachers Association, representing BSES teachers, sought enforcement of a Supreme Court‑mandated merger of the Bihar Subordinate Education Service (BSES) with the Bihar Education Service (BES). Although the Court had restored the 2006 merger resolution and quashed a 2007 notification withdrawing it, the State framed the Bihar Education Rules, 2014, creating separate sub‑cadres and seniority lists that effectively nullified the merger benefits. The Court held that these rules were deliberately designed to frustrate the judgment and amounted to contempt. It ordered the revival of the combined 2007 gradation list or, alternatively, amendment of Rule 27 to give teachers the same options as other cadres, and directed implementation within three months. The contempt petitions were disposed of with costs.
Issues considered
- Whether the Bihar Education Rules, 2014, which segregate teachers into a 'dying' sub‑cadre and create separate seniority lists, constitute willful contempt of the Supreme Court's merger judgment.
- Whether the State's actions amount to wilful and contumacious disobedience of the Court's directions under Section 2(b) of the Contempt of Courts Act, 1971.
- Whether the Court may intervene in the framing of service rules in contempt proceedings.
- What specific directions are necessary to give effect to the merger and the combined seniority list.
- Standard of proof required in civil contempt proceedings.
Legislation cited
- Constitution of Indias. Article 142
- Contempt of Courts Act, 1971s. 12, s. 18, s. 2(b)
Subjects
Contempt of CourtService LawCadre MergerBihar Education ServiceSeniority ListArticle 142Willful DisobedienceJudicial ReviewPublic Service Rules
Judgment
[2014] 7 S.C.R. 371
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. A
v.
ASHOK KUMAR SINHA & ORS.
(Contempt Petition (Civil) NO. 88-89 of 2013 )
IN
(Civil Appeal No. 8226-8227 of 2012) B
MAY 07, 2014
[SURINDER SINGH NIJJAR AND A.K. SIKRI, JJ.]
Contempt of Court - Service Law matter - Merger of C
cadres - Petitioner-Association representing teachers of the
Bihar Subordinate Education Service (BSES), claimed
merger of their cadre with the Bihar Education Service (BES)
- Merger sanctioned by the Supreme Court - In compliance
thereof, Resolution merging the cadre of BSES with BES D
issued on 07.07.2006-At this stage, writ petition filed by BES
Association (BESA) challenging _the merger, was allowed by
High Court - Immediately thereafter, the State Government
withdrew Resolution dated 07.07.2006 by notification dated
19.11.2007 - However, eventually, said judgment of the High E
Court set ~side by the Supreme Court which also quashed
notification dated 19. 11. 2007 - State Government's
Resolution dated 07.07.2006 was thus restored a.nd the State
Government was directed to act accordingly - However, plea
raised by the Petitioner in the instant Contempt Petition that F
directions cont-ained in the said Supreme Court judgment
were deliberately and contumaciously flouted by the State
Government and thus the benefits of merger were denied -
Held: lnspite of succeeding in three rounds of litigation, the
petitioners were not only treated as a distinct and separate
G .
class, but the benefit which could accrue to them in a
combined seniority list, as a result of merger, was snatched
away from them - By a well crafted technique, almost the
same result, which was the position before the merger, was
371 H
372 SUPREME COURT REPORTS [2014) 7 S.C.R.
A achieved - Provisions in the 2014 Rules were made with the
sole intention to frustrate the effect of the judgment - This
amounted to contempt of the Court - Bihar Education Rules,
2014.
B Disposing of the Contempt Petition with appropriate
directions, the Court
HELD:1. By placing the erstwhile BSES teachers in
teaching sub cadre, they were allowed to go upto the
position of Principal which was the highest promotional
C post in their sub cadre. On the other hand BES Officers
were put in administrative sub cadre to continue to
control the schools. Moreover, each sub cadre was to
have its separate seniority list, thereby, the combined
gradation list was given a go bye and even by. bringing
D BSES in BES, segregation between the two cadres was
achieved. In spite of succeeding in three rounds of
litigation, the petitioners were not only treated as a
distinct and separate class with the creation of the
aforesaid sub cadre, the benefit which could accrue to
E them in a combined seniority list, as a result of merger,
was snatched away from them. [Para 32] [402-C-F]
2. If an exercise is undertaken on the premise that itJ
is done to comply with the directions contained in the
judgment and the Court finds that, ex facie, it is not so
F and on the contrary offends the directions in the
judgment, such a move cannot be countenanced. In the
case at hand, it is crystal clear and borne from the record
that the whole exercise was done to go out of way to help
BES Officer~. However, by well crafted technique of
G creating sub cadres and treating teaching category as
dying sub cadre, almost the same result, which was the
position before the merger, was achieved. The provisions
in the Bi_har Education Rules, 2014 were made with the
sole intention to frustrate the effect of the judgment. This
H
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 373
v. ASHOK KUMAR SINHA
amounted to contempt of the Court. [Paras 33, 34] [402- A
H; 403-A-B, F-G]
J. S. Parihar v. Ganpat Duggar and others, [1996 (6) SCC
291]; Indian Airports Employees' Union v. Ranjan Chatterjee
and Another, [(1999) 2 SCC 537]; All India Anna Dravida B
Munnetra Kazhagam v. L.K. Tripathi and others, [(2009) 5
SCC 417]; Delhi Development Authority v. Skipper
Construction Co. (P) Ltd. and Another (1996) 4 SCC 622:
1996 (2) Suppl. SCR 295 and Ashish Ranjan v. Anupma
Tandon and another(2010) 14 SCC 274: 2010 (14) SCR 961 C
- referred to.
Case Law Reference :
1996 (6) sec 291 referred to Para 15
(1999) 2 sec 537 referred to Para 15 D
(2009) 5 sec 417] referred to Para 15
1996 (2) Suppl. SCR 295 referred to Para 16
2010 (14) SCR 961 referred to Para 17 E
CIVIL APPELLATE JURISDICTION : Contempt Petition
Nos. 88-89 of 2013 in Civil Appeal No. 8226-8227 of 2012.
P. S. PatWalia, Amit Pawan , Suryoday~ Prakash Tiwari
for the Petitioner. F
L. Nageshwar Rao, ASG, Ajit Sinha, Gopal Singh, Manish
Kumar, Chandan Kumar, Akhilesh Kumar Pandey, Sudhanshu
Saran, Arun Kumar, Rameshwar Prasad for the Respondents.
The Judgment of the Court was delivered by G
A.K. SIKRI, J. 1. These contempt proceedings arise out
of the judgment and order dated 23.11.2012 passed by this
Court in CA Nos. 8226-8227 of 2012. Before we take note of
H
374 SUPREME COURT REPORTS [2014] 7 S.C.R.
A the exact nature of directions given in that judgment which
according to the petitioners have been flouted contumaciously
and deliberately, we would like to take note of the history of
litigation culminating in passing of the said judgment. ·
B 2. The petitioner is an Association representing the
teachers of the Bihar Subordinate Education Service
(hereinafter referred to as BSES for brevity). They had filed a
writ petition in the Patna High Court claiming merger of their
cadre with the Bihar Education Service (hereinafter referred to
C BES for brevity). The writ petition was allowed and the LPA and
the SLP filed against the same were dismissed. Since the
benefits of merger of cadre were still not being granted, another
writ petition was filed, which too was allowed and affirmed in
LPA. Although leave was granted in the SLP filed by the. ~tate
of Bihar, ultimately the Civil Appeal was dismissed by the
D judgment dated 19.04.2006 resulting in the outcome in favour
of the petitioner.
3. In compliance of the said judgment of this Court, a
Resolution merging the cadre of BSES with BES was issued
E on 07.07.2006 and the BSES teachers were granted benefits
of the merger, like enhancement of payscale, promotion etc.
At this stage, a writ petition was filed by BES Association
(BESA) challenging the merger. A single judge of the High
Court allowed it vide judgment dated 31.10.2007, which was
F .affirmed by a Division Bench on 21.05.2010. This judgment was
challenged before this Court by filing SLP.
4. Immediately after the judgment of the learned single I
judge, the State Government withdrew the Resolution of merger
dated 07.07.2006 by a notification dated 19.11.2007 expressly
G mentioning therein that the same was being issued in light of
the High court judgment dated 31.10.2007 and thereby all
benefits of merger of cadre were withdrawn. Several
consequential benefits had been granted to the teachers
pursuant to the merger by issuing various Resolutions. These
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 375
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
benefits were also withdrawn and in fact a Resolution was A
passed by the state government on 17 .01.2008 directing that
the teachers woufd get pay and other benefits, as they were
getting prior to the merger, thereby nullifying the effect of earlier
Resolution of merger dated 7.7.2006.
B
5. The Special Leave Petition was granted and appeal
was ultimately heard finally. Eventually this appeal was allowed
by a detailed judgment dated 23.11.2012, thereby setting aside
. the judgment of the High Court. This Court also quashed the
notification of the State Government dated 19.11.2007, by C
which the benefits of merger granted to the teachers had been
withdrawn. As a corollary State Government's Resolution dated
07.07.2006 was upheld and restored by which the cadre of the
BSES teachers, Teaching Branch had been merged with that
of BES and the State Government was directed to act
accordingly. D
6. The conclusive portion of the detailed judgment dated
23.11.2012 reflects raison d'etre for arriving at such a
conclusion and the precise nature thereof. We, therefore,
reproduce the same hereunder for the sake of further E
discussion:
"44. This entire discussion leads us to only one conclusion
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, F
had no business to re-open the entire controversy, even
otherwise. The State Govt. had already passed a
resolution dated 07.07.2006 after the order of this Court
dated 19.04.2006. While examining the legality of that
resolution (which was defended by the State Govt. at this G
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 principles analogous thereto, does not permit
H
376 SUPREME COURT REPORTS [2014] 7 S.C.R.
A 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 and order passed by the Division Bench of Patna
B High Court in LPA No.4182009 and other LPAs dated
21.05.2010, and that of the learned Single Judge dated
31.10.2007 in CWJC'No.100912006 are set-aside and the
said Writ Petition is hereby dismissed. Consequently the
notification dated 19.11.2007 issued pursuant to the
C decision of the Single Judge will also stand quashed and
set-aside. The State Govt. Resolution dated 07.07.2006
is upheld. The state shall proceed to act accordingly. I.A.
Nos.19-202011 are dismissed. As stated by Mr. Patwalia,
learned senior counsel for the appellants, the appellants
D no longer press for the action for contempt arising out of
CWJC No.86792002. Contempt Petiton Nos. 386-387/
2011, will also accordingly stand disposed of, as not
pressed.
46. The attitude of the State Govt. in the matter has caused
E unnecessary anxiety to a large number of teachers. The
State Govt. must realize that in a country where there is
no 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
F treated honourably and given appropriate pay and chances
of promotion. It is certaif.llY not expected of the State Govt.
to drag them to the Co!¥l 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
G the 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.418/2003 in
H approving that approach is also far from satisfactory. If the
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 377
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
orders passed by this Court were not clear to the State A
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 Govt. and least from the
High Court. Having stated this, although we have expressed 8
out displeasure about the approach of the State
Government, we refrain from passing any order as to
costs."
7. It is clear from the above that the Court took the view
that once decision of merger was not only upheld by this Court C
in its earlier judgment dated 19.04.2006, but thereafter it was
even acted upon by the State Government by passing
Resolution dated 07.07.2006, there was no reason for the High
Court to reopen the matter in a Writ Petition at the instance of
BES Association. The Court, therefore, in categorical terms D
upheld the Resolution dated 07.07.2006 effecting the merger
of two services namely BSES and BES. Since this merger was
undone by the State Government by passing another Resolution
dated 19.11.2007, this latter Resolution was quashed. The
effect of these directions was to restore status quo ante by E
reinforcing the position with the issuance of Resolution merging
the two cadres on 07.07.2006 and conferring all benefits of
merger on to the members of the petitioner's Association, viz.
teachers belonging to erstwhile BSES.
8. According to the Petitioner, after the aforesaid judgment F
was given, several representations were made to the State
Government, on a virtually daily basis, to restore the earlier
position consequent upon the merger of the two cadres but it
was of no avail. In these representations, the Petitioners also
called upon the State Government to give the consequential G
benefits granted pursuant to merger notification by restoring the
same and stated that these benefits would include upgradation
of posts, fixation of higher pay, payment of arrears, promotions
etc. However, instead of implementing the directions contained
H
378 SUPREME COURT REPORTS [2014] 7 S.C.R.
A in the judgment, the Petitioner received letter dated 24.01.2013
from Respondent No.4, namely, the Director (Admn.)-cum-
Additional Secretary, Department of Education, Government of
Bihar) stating therein that the proposal was sent for the approval
of merger and the Petitioner were asked to provide details of
8 pay scales etc. of the BSES teacher to expedite the matter.
According to the Petitioner referring the matter to the Cabinet
to approve the merger itself was a contemptuous act inasmuch
as. there was no question of fresh approval from the Cabinet
regarding merger. According to the Petitioner with the
C upholding of the Resolution dated 7.07.2006, which was a
Resolution of merger, that Resolution stood revived and
restore~ by the Court itself and the Government was only
required to grant the consequential benefits to the BSES
teachers· by passing formal orders in this behalf.
Notwithstanding the same, in compliance with the request letter
D dated 24.01.2013, the Petitioner submitted the required details
vide communication dated 28.01.2003. However, even
thereafter nothing happened even when the matter was
persued repeatedly and almost on daily basis with the
Government. It is at that stage that present contempt petition
E was filed on 23.01.2013 alleging that the Respondents herein
had deliberately, willfully and intentionally failed to comply with
. the directions contained in the judgment dated 23.11.2012 by
refusing to grant all admissible benefits of mergers to the
Petitioners. ·
F
9. Notice in this contempt petition was issued. Thereafter
various orders were passed from time to time taking note of
the developments happening at the government's end which
included approval for merger and grant of certain benefits by
G the State Cabinet. It would be apt to take note of steps taken
by the State Government, in brief, hereunder:
(a) On 01.03.2013, the State Cabinet approved the
proposal for merger. This proposal which was approved/
was of the following nature:
H
B!HAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 379
.
v. ASHOK KUMAR SINHA [A.K. .SIKRI, J.]
"6. At the time of issuance of Resolution No.1209 dated A
07.07.2006 the estimated amount of expenditure w9s 64
Crore. Presently this amount is Rs.104 crores.
7. (i) In compliance of the order of the Hon'ble Supreme
Court dated 23.11.. 2012, it is proposed that the Resolution 8
~o.1209 dated 07.07.2006 be r~vived and Notification
no.1855 dated 19.11.2007 be annulled.
(ii) Consequential Benefits are proposed to be given to the
cadre of teachers of Bihar Subordinate Education Service
(Teaching Brarich) Male and Fema~e after merger. C
8. Approval of Finance Departments has been obtained."
(b) After the approval of merger by the State Government,
Resolution dated 17.04.2013 was passed by the D
Education Department, Government of Bihar. Though as
per para 6, earlier Notification dated 19.11.2007 was
withdrawn and Resolution dated 07.07.2006 was revived,
in para 7 while giving consequential benefits it was
mentioned that for the purpose of granting these benefits E
upto date list from the Director, Secondary Education was
to be obtained and Bihar Education Service Department
of Examination Rules, 1973 and order of status quo given
by the Supreme Court on 04.07.2011 are to be scrutinized.
It was mentioned that separate orders would be issued
only thereafter in this regards. F
As per the Petitioner, introduction of these conditions for
grant of consequential benefits was not only contrary to the
judgment of the Court but even contrary t9 the Cabinet
approval as no such conditions were prescribed in the G
approval granted by the State Cabinet.
(c) Thereafter orders dated 24.04.2013 were passed
reviving ACP benefits which were earlier granted.
As ,per the Petitioner even while doing so, in Para 5 of the H
380 SUPREME COURT REPORTS (2014] 7 S.C.R.
A said order it was mischievously mentioned that after the
matter for grant of consequential benefits w.e.f. 01.01.1997
was examined, in course of such examination it has been
found that before issuing Resolution No.1209 dated
07.07.2006 all points were not fully considered.
B
(d) On 20.07.2013 press release was issued by the.
Government calling upon all the teachers of erstwhile BSES
including heirs of deceased teachers/retired teachers to
submit service books, appointment/promotion orders,
testimonials of educational qualifications within three days
c for the purpose of granting them the benefits.
In the mean time BSES Association filed I.A. in disposed
of C.A. No. 8228-8229 of 2012 seeking modification of
the said judgment for direction of their seniority this I.A. was
D dismissed on 13.08.2013 and while doing so the Court
observed that implementation of orders dated 23.11.2012
was deliberately obstructed by BSES Officers.
(e) On 13.08.2013 a Government Committee, in which
BSES Officer was special invitee·, prepared draft Rules.
E
(f) On 26.07.2013 Government Order was passed creating
promotional post in the merged cadre w.e.f. 01.01.1977
to 31.12.1995 and as a result thereof 877 promotional
posts were created in merged BES.
F
On the same day, compliance was filed by the State in this
Court wherein it had been stated as to how the court
orders were complied with. It was followed by another
compliance report dated 26.08.2013 in the present
G contempt petitions.
(g) When these contempt petitions came up on 12.12.2013,
the Ld. ASG appearing for the State Government stated
that seniority list on 17.08.2007 shall be given effect to.
This is a very crucial. statement. On this statement,
H direction was issued by the Court to grant consequential
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 381
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
benefits of merger within ~ight weeks. Another specific A
direction was given t.o restore the position consequent to
orders dated 28.06.2007 posting BSES teachers as
Principals.
It resulted in partial obedience in the form of orders dated
8
08.01.2014 by which 100 BSES teachers were posted as
Principals.
(h) On 26.01.2014, Resolution was passed creating posts
of Senior Professors, Senior Lecturers' and Vice-
Principals in the Government schools and upgrading the C
post of Principal to the highest level. Reas(;>n for this given
in the Resolution is that it became necessary as no new
post for BSES teachers· were available after mereger.
(i) On 10.02.2014 orders were passed posting about 257 o
teachers. With this all serving BSES teachers were given
postings.
·U) By a different order of. the same date time bound
promotion was granted to erstwhile BSES teachers.
D
(k) While all this was happening, on 12.02.2014, the State
Government promulgated Bihar Education Rules, 2014.
This act, according to the Petitioner shows inveterate
behaviour of the respondents who have attempted undo
the real effect of merger. These Rules create three sub E
cadres within BES. Under these Rules BSES teachers are
put in teaching sub cadre, where Principal would be
highest promotional post. In contrast BES Officers are put
in administration sub cadre, who would continue to be
controlling the schools. The~e Rules also provide that each F
sub-cadre will have its own separate seniority list. Further,
teaching cadre of BSES is treated as "dying cadre".
10. A glimpse of the aforesaid steps taken after the filing
of the CCP shows that some efforts are being made to comply
G
. .
382 SUPREME COURT REPORTS [2014] 7 S.C.R
I
A with the directions of this Court that too after the filing of this
CCP. However, the grievance of the Petitioner is that even when
the orders of creation and upgradation of post etc. are issued
there are so many discrepancies therein which would manifest
lack of bona fides on the part of the administration to comply
B with the directions in letter and spirit. On the contrary in spite
of merger, erstwhile BSES teachers are given step motherly
treatment on the one hand, and on the other hand BES
employees are still treated as the favourites of the authorities,
with the result the discrimination between the two continues,
C even when with the merger of two cadres, they stood
amalgamated into one and there was no reason to identify
them as BSES and BES any longer. It is further argued that
the provisions of Bihar Education Rules, 2014 (the Rules, 2014)
are deliberately made with the aforesaid ragnant motive in mind
and made in violation of directions in the judgment of this Court.
0
Various discrepancies in the orders issued by the Govemment
from time to time, as well as in the Rules, 2014 are pointed
out in the manner as below:
Discrepancies in the orders of posting
E
1. Posting orders have been issued with complete non
application of mind as even dead and retired teachers
have been posted.
2. Seniority has been given a complete go by while issuing
F these orders. Juniors have been posted as Principals and
seniors posted as Vice-Principals, Sr. Professor & Sr.
Lecturers.
3. Posting the erstwhile BSES teachers in Training
G Colleges is impermissible under 1973 Rules as well as the .
new 2014 Rules.
4. These notifications have been issued on 10.02.2013
posting erstwhile BSES teachers as Vice-Principals, Sr.
Professors, Sr. Lecturers. However, the new Rules were
H
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 383
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
notified on 12.02.2014 and therefore on the day these A
postings were made, the posts were non existent.
Discrepancies in the creation & upgradation of posts
1. Posts of Sr. Professors & Sr. Lecturers are unheard of
in schools. Such posts have never existed in any school, B
let alone govt. school and exist only in colleges.
2. Creation of these posts show malicious intent as it is
an attempt to prE~vent erstwhile BSES teachers from
occupying higher promotional posts in BES. C
3. Para 7 of the Resolution dated 29.01.2014 says that
these posts would get finished once the incumbents
retired. Tile intention is therefore clear that these posts are
. not required and are being used to only 'park' the erstwhile
teachers till they retire. · 0
4. The BES officers had pleaded· in IA 25-26 that their
seniority would be affected and they would lose .the higher
posts. This IA was dismissed, despite that the
respondents have devised this creation of posts to protect E
the BES officers.
5. The purported reasonfng behind creating these posts
is that adequate promotional posts were created for the
period 01.01.1977 to 31.12.1995 in the merged BES F
cadre vide notification dated 26.07.2013. Even-the
exercise qua post 01.01.1996 period has been completed
vide notifications dated 10.11.2001, 10.12.2002 and
29.06.2004 initially and then vide Resolution dated
15.06.2011 as need based posts promotional posts, which G
are not to be created but merely identified, have been
identified for the BES.
6. Other posts/categories of posts were merged in the
BES in the past but this exercise of creating posts was
neve·r undertaken. ThiS! is nothing but an attempt to H
384 SUPREME COURT REPORTS [2014] 7 S.C.R.
A overreach the orders of this Court to protect the BES
officers at any cost.
Discrepancies in the Bihar Education Rules 2014 and the
Cabinet Memo Approving New Rules.
B 1. This is the most brazen attempt to deny the petitioner
the fruits of its success in three rounds of litigation upto
this Hon'ble Court. AS a result of merger, the erstwhile
BSES teachers would have been entitled to the highest
posts in BES, a fact admitted specifically by the BES
c officers themselves. As a result of these new Rules, they
cannot go beyond the post of Principal, which was the
basic grade/entry level post of BES till now.
2. Even though the BES officers rank much junior to them,
D these BES officers would continue to be the Controlling
Officers of the schools in which the BSES teachers would
be posted by virtue of the nature of their posts.
3. Merely giving financial benefits to the erstwhile BSES
teachers is not enough and they could not be denied the
E higher posts within BES.
4. The real intention to somehow protect the BES officers -
is revealed from para 2 of cabinet memo dated
13.01.2014 which speaks of "clearing the way for
F unobstructed promotion of BES officers"
5. A similar attempt to bifurcate cadres after the order of
merger in 2006 was shot down by the then Minister saying ·
doing so would amount to breaching court orders and
against organizational interest.
G
6. There is no direction by this Hon'ble Court to frame new
Rules and the respondents are completely misreading·
para 42 of the judgment dated 23.11.2012. This Hon'ble
Court had merely considered and rejected the submission
H
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 385
-V. ASHOK KUMAR SINHA [A.K. SIKRI, J.] .
of BES officers opposing merger" on the ground of lack of . A
· new Rules.
7. Since 1973 Rules already exist, there is no occasion
nor need for new Rules.
8. These Rules take away the actual benefit of merger. The B
very basis of the merger was to provide adequate
promotional avenues to the teachers but these Rules take
that away.
9. The Ld. ASG appearing for the respondents had stated c
before this Court on 12.12.2013 that the seniority list dated
17.08.2007 would be given effect to. These Rules
completely annul that seniority list as each sub cadre would
have a separate seniority list.
· 11. Mr. Patwalia, learned Senior Advocate who made D
:letailed submissions on the aforesaid aspects rapped up his
arguments by pointing out that Respondents continue to defy
the orders of this Court which would be clear from the following:
1. The erstwhile BSES teachers even now are getting far E
lower salaries than what the BES officers, who rank much
jimior to them in the combined gradation list, are being
paid. Similar is the case with regard to pension of retired
BSES teachers. This is hostile discrimination and blatant
contempt. F
2. Rather than getting increased, the pension of those
BSES teachers, who retired prior to 09.08.1999, would
actually decrease, a fact admitted by the Accountant
general. This can certainly not be a cons~quence of G
merger.
3. Despite the reprimand and caution in para 46 & 47 of
the judgment dated 23.11.2012, the state continues to defy
the orders of this Court.
r.'
386 SUPREME COURT REPORTS [2014] 7 S.C.R.
A 4. The petitioner are being denied the benefits despite
orders of this Court because of malafides on the part of
the (i) present HRD Minister, who had defended the BES
as Advocate General before the High Court, (ii) one
Rameshwar Singh, who was proceeded for contempt by
B the High Court in this very matter but is now the Finance
Secretary, (iii) one Anjani Kumar Singh, against whom
· contempt petition was filed for defying the interim orders
of this Hon'ble Court in this case but is now the Principal
Secretary to the Chief Minister. These three are acting at
c the behest of the BES officers, who are hell bent to not get
the orders of this Hon'ble Court implemented.
5. The officers bearers of the petitioner Association are
being targeted. The General Secretary of the petitioner
has not been paid his GPF dues even though he retired
D six years ago.
6. As a result the erstwhile BSES teachers have not got
either the financial or promotional benefits of merger."
E 12. Mr. L. Nageshwar Rao, learned ASG appeared on
behalf of Respondents. He countered the submissions of Mr.
Patwalia by arguing that there was substantial compliance of
the directions contained in the judgment dated 23.11.2012, and
no case for proceedings against the respondents for contempt
was made out. He drew our attention to the following steps
F Y!hich were taken by the State Government, which according
to him, amounted to due compliance:
(i) The direction of this Court was to restore the Notification
No. 994 dated 28.6.2007 within 4 weeks. Orders of
G po~tings were issued as pe"r the said notification/list. Upon
scrutiny some inadvertent mistakes were found, which have
been rectified vide office notification dated 10.02.2014.
(ii) The postings are as Principal of Schools and Lecturers
of Training Colleges which are the promotional posts. As
H
BIHAR STATE ,GOVT. SEC. SCL. TEACHERS ASSN. 387
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
regards other allegation relating to their supervision/control, A
the department vide notification No.436 dated 10.02.2014
has in clear terms stated in paragraph no.4 of the·
notification that the matter related to promotion/charge/
transfer-posting/retiremental benefit/service confirmation of
merged officer of Bihar education service Grade-II (merged B
officer of subordinate education service teaching branch)
shall be dealt with under the directorate of administration
of education department.
(iii) The petitioners have been posted on promotional post C
and previous consequential orders have been restored.
(iv) The petitioners have admitted that all the financial
benefits of merger have been granted and paid.
(v) Mr. Rao further pointed out that admittedly merger of 0
the Cadre has taken place. Moreover this merger is w.e.f.
1977 and all the benefits of merger including the time ::
,bound promotions or the ACP have been granted
accordingly. All the merged employees who are in service
have been granted posting on higher post and pay-scale. E
(vi) He also submitted that the allegation regarding
reduction in pension or regarding ACP is only an
apprehension. A categorical statement was made at the
Bar that there shall not be any reductions in pensions and
as per finance department decisions the person retiring F
after 09.08.1990 shall also be granted 3rd ACP.
13. According to Mr. Rao, the aforesaid steps taken by the
administration were sufficient to demonstrate that the judgment
of this Court was complied with. He submitted that under the G
garb of the present Contempt Petitions, the Petitioners were
now challenging the rules framed in the year 2014 which was
not permissible as validity of the rules could not be gone into
in contempt proceedings. Mr. Rao justified the fra!l'ling of these
rules on the ground that it had become necessa~ b~capse of H
\
388 SUPREME COURT REPORTS (2014] 7 S.C.R.
A the merger of the two cadres and in fact 2014 Rules amounted
to giving effect to merger that had been effected. If the
Petitioners had any grievance against any of the provisions of
2014 Rules, the remedy for the Petitioners was to file separate
proceedings. It was further submitted that the members of the
B Petitioner Association belonged to Teaching Cadre and had
worked only as teachers throughout their service with no
administrative experience. Therefore, they could not take any
posting on administrative side because of lack of such an
experience,. Keeping in mind this position, 2014 Rules were
c framed and postings had been given as per those rules. It was
also submitted that the members of the Petitioner Association
were due to retire in one or two years and at the fag end of
their career they could not be given administrative
assignments. Moreover, the rank and pay scale is same and
therefore the Petitioners are not affected adversely in any
0
manner.
14. Mr. Rao also attempted to justify the provisions made
in the 2014 Rules, which he submitted, was the prerogative of
the employer. His argument was that direction of this Court was
E only to merge the cadre. However, what further benefits are to
be given and the entitlement of the officers in the mergeq cadre
could not be gone into in the Contempt Petitions. Moreover, it
was for the Government to decide as to what provisions are to
be made for the career progressions of the merged employees
F from two cadres. For that, Government had complete freedom.
To achieve this, 2014 Rules had been framed. He thus, argued
that there was no willful disobedience.
15. Mr. Rao referred to the following judgments:
G J.S. Pariharv. Ganpat Duggar and others, [1996 (6) SCC
291]
"6. The question then is whether the Division Bench was
right in setting aside the direction issued by the learned
H Single Judge to redraw the seniority list. It is contended
..
\
BIHAR STATE GOVT. SEC. SCL TEACHERS ASSN. 389
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.)
by Mr S.K. Jain, the learned counsel appearing for the Ai
appellant, that unless the learned Judge goes into the
correctness of the decision taken by the Government in
preparation of the seniority list in the light of the law laid
down by three Benches, the learned Judge cannot come
to a conclusion whether or not the respondent had wilfully B
or deliberately disobeyed the orders of the Court as
defined under Section 2(b) of the Act. Therefore, the
learned Single Judge of the High Court necessarily has to
go into the merits of that question. We do not find that the
contention is well founded. It is seen that, admittedly, the c
respondents had prepared· the seniority list on 2-7~ 1991.
Subsequently promotions came to be made. The question
is whether seniority list is open to review in the contempt
proceedings to find out whether it is in conformity with the
directions issued by the earlier Benches. It is seen that . D
once there is an order passed by the Government on th~
basis of the directions issued by the court, there arises a
fresh cause of action to seek redressal in an appropriate
forum. The preparation of the seniority list may be wrong
or may be right or may or may not be in conformity with
E
the directions. But that would be a fresh cause of action
for the aggrieved party to avail of the opportunity of judicial
review .. But that cannot be considered to be the wilful
violation of the order. After re-exercising the judicial review
.. in contempt proceedings, a fresh direction by the learned
Single Judge cannot be given to redraw the seniority list. F
In other words, the learned Judge was exercising the
jurisdiction to consider the matter on merits in the contempt
proceedings. It would not be permissible under Section 12
of the Act. Therefore, the Division Bench has exercised the
power under Section 18 of the Rajasthan High Court G
Ordinance being a judgment or order of the Single Judge;
the Division Bench corrected the mistake committed by the
learned Single Judge. Therefore, it may not be necessary
for the State to file an appeal in this Court against the
H
390 SUPREME COURT REPORTS [2014] 7 $.C.R.
A judgment of the learned Single Judge when the matter was
already seized of the Division Bench."
Indian Airports Employees' Union v. Ranjan Chatterjee
and Another, [(1999) 2 SCC 537]
B "7. It is well settled that disobedience of orders of the court,
in order to amount to "civil contempt" under Section 2(b)
of the Contempt of Courts Act, 1971 must be "wilful" and
proof of mere disobedience is not sufficient (S.S. Roy v.
State of Orissa). Where there is no deliberate flouting of
c the orders of the court but a mere misinterpretation of the
executive instructions, it would not be a case of civil
contempt (Ashok Kumar Singh v. State of Bihar).
8. In this contempt case, we do not propose to decide
whether these six sweepers do fall within the scope of the
D notification dated 9-12-1976 or the judgment of this Court
dated 11-4-1997. That is a question to be decided in
appropriate proceedings.
9. It is true that these six sweepers' names are shown in
E the annexure to WP No. 2362 of 1990 in the High Court.
But the question is whether there is wilful disobedience of
the orders of this Court. In the counter~affidavit of the
respondents, it is stated that there is no specific direction
in the judgment of this Court for absorption of these
sweepers, if any, working in the car-park area, and that the
F
directions given in the judgment were in relation to the
sweepers working at the "International Airport, National
Airport Cargo Complex and Import Warehouse". It is
stated that the cleaners employed by the licensee in
charge of maintenance of the car-park area do not, on a
G proper interpretation of the order, come within the sweep
of these directions. It is contended that even assuming that
they were included in the category of sweepers working
at the "International Airport", inasmuch as they were not
employed for the purpose of cleaning, dusting and
H watching the buildings, as mentioned in the notification
BIHAR STATE GOVT. SEC. SCL./TEACHERS ASSN. 391
v. AS!iOK KUMAR SINHA [A.K. SIKRI, JJ
...
abolishing contract labour.. they were not covered by the A
judgment. It is .also contended that the case of such
sweepers at the car-park area y.Jas not even referred to
the Advisory Board under Section,·10 of the Contract
Labour (Regulation and' Abolition) Act, 1970 and it was
. highly
'·.
doubtful. if they were covered. by the notification. s
10. On the other hand, learned $enior Counsel for the
petitioners contended that going by the map of the Airport,
it was clear that these sweepers at the car-park area were
clearly covered by the notification and the judgment. The
fact that the names of these six employees were shown in C
the annexures to the writ petition was proof that they were
.covered by the judgment. The licensee is,in the position
of a c;ontractor.
11. In our view, these rival contentions involve an o
interpretation of the order of this Court, the notification and
other relevant documents. We are not deciding in this
contempt case whether the interpretation put forward by
the respondents or the petitioners is correct. That question
has to be decided in appropriate proceedings. For the E
purpose of this contempt case, it is sufficient to say that
the non-absorption of these six sweepers was bona fide
and was based on an interpretation of the above orders
and the notification etc. and cannot be said to amount to
"wilful disobedience" of the orders of this Court."
F
All India Anna Dravida Munnetra Kazhagam v. L.K.
Tripathi and others, [(2009) 5 SCC 417]
"78. We may now notice some judgments in which the
courts have considered the question relating to burden of G
proof in contempt cases. In Brambleva/e Ltd., Re Lord
Denning observed: (All ER pp. 1063 H-1064 B)
"A contempt of court is an offence of a criminal character.
A man may be sent to prison for it. It must be satisfactorily
392 SUPREME COURT REPORTS [2014] 7 S.C.R.
A proved. To use the time-honoured phrase, it must be
proved beyond reasonable doubt. It is not proved by
showing that, when the man was asked about it, he told
lies. There must be some further evidence to incriminate
him. Once some evidence is given, then his lies can be
B thrown into the scale against him. But there must be some
other evidence ....
... Where there are two equally consistent possibilities
open to the court, it is not right to hold that the offence is
proved beyond reasonable doubt."
c
79. In Mrityunjoy Das v. Sayed Hasibur Rahaman -the
Court referred to a number of judicial precedents including
the observations made by Lord Denning in Bramblevale
Ltd., Re and held: (SCC p. 746, para 14)
D
"14 . ... The common English phrase 'he who asserts must
prove' has its du~ application in the matter of proof of the
allegations said to be constituting the act of contempt. As
regards the 'standard of proof', be it noted that a
proceeding under the extraordinary jurisdiction of the court
E
in terms of the provisions of the Contempt of Courts Act
is quasi-criminal, and as such, the standard of proof
required is that of a criminal proceeding and the breach
shall have to be established beyond reasonable doubt.•
F 80. In Chhotu Ram v. Urvashi Gulati a two-Judge Bench
observed: (SCC p. 532, para 2)
"2. As regards the burden and standard of proof, the
common legal phraseology 'he who asserts must prove'
G has its due application in the matter of proof of the
allegations said to be constituting the act of contempt. As
regards the 'standard of proof', be it noted that a
proceeding under the extraordinary jurisdiction of the court
in terms of the provisions of the Contempt of Courts Act
H
•BIHAR STATE GOVT. SEC. SCL..TEACHERS ASSN. 393
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
is quasi-criminal, and as such, the standard·of proof A
required is that of a criminal proceeding and the breach
shall have to be established beyond all ·reasonable doubt."
81. In Anif Ratan Sarkar v. Hirak Ghosh the Court referred
to Chhotu Ram _v. Urvas.hi Gulati-and observed: (SCC p.
8
29, para 13)
"13. .. . The Contempt of Courts Act, 1971 has been
introduced in the statute book for the purposes of securing
a feeling of confidence of the people in general and for due
and proper administration of justice in· the country - C
undoubtedly a powerful weapon in the hands of the law
courts but that by itself operates as a string of caution and
unless thus otherwise satisfied beyond doubt, it would
neither be fair nor reasonable for the law courts to exercise
jurisdiction under the statute."" D.
16. In rejoinder Mr. Patwalia submitted that even a cursory
glance into the 2014 Rules and the provision made therein
would amply bear out that the whole intention of the Rule makers
was to frustrate the effect of the judgment. According to him that E
, would amount to contempt and from this angle the Court was
"competent to examine the matter even in Contempt Petitions.
He further submitted that the argument raised now were
precisely the grounds on which the Government had opposed
the merger but the Court had rejected those arguments.
Therefore, under the garb of implementation of that judgment, F
same vert grounds could not ~e raised to justify making such
provisions in 2014 Rules. He argued that the Report of the
Committee which was relied upon by the Respondents in fact
rejected the entire issues of merger. He referred to certain
paras from the Report to support his submission. He also made G
the grievance that initially, after the rendering of the judgment
of this Court, the Government had started implementing the
·same and had even passed certain orders creating additional
'.post to give effect1o the judgment. So much so even seniority
H
394 SUPREME COURT REPORTS [2014] 7 S.C.R. ·
A was finalized. However, thereafter the administration turned
hostile and bent backward. Therefore, the entire gamut was
open to judicial review even in the contempt proceedings. He
further submitted that there was ample power with this Court,
particularly under Article 142 of the Constitution, to do complete
B justice in the matter as held in Qelhi Development Authority
v. Skipper Construction Co. (P) Ltd. and Another; (1996) 4
sec 622.
"16. In Vinay Chandra Mishra, this Court dealt with the
scope and width of the power of this Court under Article
c · 142. After referring to the earlier decisions of the Court in
extenso, it is held that:
• ... statutory provisions cannot override the
constitutional provisions and Article 142(1) being a
D constitutional power it cannot be limited or
conditioned by any statutory provision".
It is also held that:
.,
•... the jurisdiction and powers of this Court under
E Article 142 which are supplementary in nature and
are provided to do complete justice in any matter
n
In other words, the power under Article 142 is meant to
F supplement the existing legal framework - to do complete
justice between the parties - and not to supplant it. It is
conceived to meet situations which cannot be effectively
and appropriately tackled by the existing provisions of law.
As a matter of fact, we think it advisable to leave this
power undefined and uncatalogued so that it remains
G,
elastic enough to be moulded to suit the given situation.
The very fact that this power is conferred only upon this
Court, and on no one else, is itself an assurance that it will
be used with due restraint and circumspection, keeping in
H
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 395
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
view the ultimate object of doing complete justice between A
the parties. Now, coming to the facts of the case before
us, the question is not what can be done, but what should
be done? We are of the opinion that even while acting .
under Article 142 of the Constitution of India, we ought not
to reopen the orders and decisions of the courts which B
have become final. We do not think that for doing complete
justice between the parties before us, it is necessary to
resort to this extraordinary step. We are saying this in view
of the contention urged by S/Shri Salve and Dhavan that
since the DDA has taken over not only the plot but also c
the construction raised by Skipper thereon (free from all
encumbrances) in addition to the sum of Rs 15.89 crores
(said to have been paid by Skipper towards the sale ,
consideration of the said plot), the monies required for
paying the persons defrauded should come out qf the kitty
0
of DDA. It must be remembered that the plot, the
construction raised thereon and the monies already paid
towards the sale consideration of the said plot have all
vested absolutely in the DDA free from all encumbrances
under and by virtue of the decision of the Delhi,High Court E
dated 21-12-1990/14-1-1991, which decision has indeed
been affirmed by this Court by dismissing the special leave
petition preferred against it. It may not be open to us to
ignore the said decisions and orders, including the orders .
of this Court, and/ot to go behind those decisions/o~ders
and say that the amount received· by DDA towards sale F
consideration from Skipper or the value of the construction
·raised by Skipper on the said plot should be made
available for paying out the persons defrauded by Skipper.
We must treat those decisions and orders as final and yet
devise ways and means of doing complete justice G
between the parties before us.
The contemner should not be allowed to enjoy or retain
the fruits of his, contempt. •
H
396 SUPREME COURT REPORTS [2014) 7 S.C.R.
A 17. He also referred to the judgment in the case of Ashish,
Ranjan v. Anupma Tandon and another; (2010) 14 SCC 274.:
"20. In addition to the statutory provisions of the Contempt
of Courts Act, 1971 the powers under Articles 129 and 142
of the Constitution are always available to tl)is Court to see
B
that the order or undertaking which is violated by the
contemnor is effectuated and the court has all powers to
enforce the consent order passed by it and also issue
further directions/orders to do complete justice between the
parties. Mutual settlement reached between the. parties
c cannot come in the way of the well-established principles
in respect of the custody of the child and, therefore, a
subsequent application Jor custody of a minor cannot b_e
thrown out at the thresh'old being not maintainable. It is a
recurring cause because the right of visitation given to the
D applicant under the agreement is being consistently and
continuously flouted. Thus, the doctrine of res judicata is
not applicable in matters of child custody."
18. He concluded his submissions by arguing that there
E were three rounds of litigation earlier and the Petitioners were
fighting for justice since 1977 when decision was taken by the
Government to merge the two cadres. By framing 2014 Rules,
the Government negated the·effect of merger thereby leaving
the petitioners in lurch once again and now the plea was taken
F to approach the Court again with fourth round of litigation. He
pointed out that during this period, most of the members of the
· Petitioner Association had retired and very few who were left
were going to retire in near future. The whole intention of the
authorities was to tire out these petitioners and frustrate their
G efforts which should not be countenanced.
19. At the outset, we may observe that we are conscious ,
of the limits within which we can undertake the scrutiny of the
steps taken by the respondents, in these Contempt
proceedings. The Court is supposed to adopt cautionary
H
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 397
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
approach which would mean that if there is a substantial A
compliance of the directions given in the judgment, this Court
is not supposed to go into the nitty gritty of the various measures
taken by the Respondents. It is also correct that only if there is
willful and contumacious disobedience of the orders; that the
Court would take cognizance. Even when .there are two equally B
consistent possibilities open to the Court, case of contempt is
not made out. At the same time, it is permissible for the Court
to examine as to whether the steps taken to purportedly comply
wiJh the directions of the judgment are in furtherance of its
compliance or they tend to defeat the very purpose for which c
the directions were issued. We can certainly go into the issue
as to whether the Government took certain steps in order to
implement the directions of this Court and thereafter withdrew
those measures and whether it amounts to non-implementation.
Limited inquiry from the aforesaid perspective, into the
0
provisions of 2014 Rules can also· be undertaken to find out
as to whether those provisions amount to nullifying the effect
of the very merger of BSES with BES. As all these aspects
have a direct co-relation with the issue as to whether the
directions are implemented or not. We are, thus,' of the opinion
that this Court can indulge in this limited scrutiny as to whether · E
provisions made in 2014 Rules frustrate the effect of the
judgment and attempt is to achieve those results which were
the arguments raised by the respondents at the time of hearing
of C.A. No. 8226-8227 of 2012 but rejected by this Court. To
put it otherwise, we can certainly examine as to whether 2014 F
Rules are made to implement the judgment or these Rules in
effect nullify the result of merger of the two cadr~s.
20. As noted above, the resolution of merger earlier was
passed on 7.7.2006 after rendition of the judgmemt dated G
19.4.2006 by this Court in the second round of litigation. This
was preceded by a Note for the Cabinet regarding merger. A
perusal of this Cabinet Note shows that the total history about
the various proceedings culminating into judgment dated
19.4.2006 is given. We have to keep in mind that original H
398 SUPREME COURT REPORTS [2014) 7 S.C.R.
A Resolution for merger is Resolution No. 3512 dated 11.4.1977
which is directed to be implemented. In the Cabinet Note dated
3.7.2006 it is noted as under:-
"In the year 1977, the number of total created/ sanctioned
post of the male and female teachers was 2465, against
B
which total working strength were 1336, which decreased
to 880 by the year 2006. Out of this if 301 units belonging
to Jharkhand is deducted, it comes to 579 only.
14. It is to be noted that in view of the provisions contained
c in resolution No. 3521 dated 11.4.1977 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 1977 which
was otherwise due. Where as the incumbents of Inspecting
D Branch of this cadre are reported to have been promoted
upto 2001."
21. Thereafter, the proposal for creation of more posts is
contained in Para 15 which reads as under:
E "15. Therefore, consequent upon complying the orders of
the Hon'ble Courts it is proposed to upgrade 2465 created/
sanctioned posts of teachers of subordinate education
service male and female cadre to Bihar Education Service
Class-2 w.e.f. 1.1.1977."
F
22. Resolution to this effect was passed on 7.7.2006.
Thereafter, combined gradation list of the merged cadre of BES
dated 17.8.2007 was issued. In this consolidated seniority list
of officers of combined BES Service, the employees of both
G the merged cadre is shown as per their seniority. This was the
precise manner in which the authorities had understood the
scheme of merger and acted earlier pursuant to the judgment
dated 19.4.2006. Directions contained in the judgment dated
23.11.2012 in C.A. Nos. 8226-8227 of 2012 are reiteration of
H earlier judgment dated 19.4.2006. In fact, it is specifically held
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 399
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
that Resolution dated 7. 7.200.6 is valid and, 1.ater Resolution A
dated 17.1.2008,annulling the earlier Resolution dated 7.7.2006
has been quashed. It thus becomes obvious that the
respondents were to re.vive the earlier order/ Resolution of
merger as well as combined gradation list issued earlier. These
remedial steps were necessitated to carry out the direction of B
the judgment. Let us see wh~ther such steps are taken now or
2014 Rules are in the teeth of the aforesaid directions.
23. We find that Cabinet proposal dated 1.3.2013
regarding merger was prepared on 1.3.2013 which referred to
· the earlier Resolution No. 1209 dated 7.7.2006, in the following C
manner:
"At the time of issuance of Resolution No. 1209 dated
7.7.2006 the estimated amount of expenditure was 64
crore. Presently this amount is Rs. 104 crores. D
(I) In compliance of the order of the Supreme Court dated
23.11.2012, it is proposed that the Resolution No. 1209
dated 7. 7.2006 be revived and Notification No. 1855
dated 19.11.2007 be annulled.
E
(ii) Consequential benefits are proposed to be given to the
cadre of teachers of Bihar Subordinate Education Service
(Teaching Branch) Male and Female after merger.
Approval of Finance Departments has been obtained." F
24. Significantly, Resolution dated 2.4.2013 passed by the
Government revived earlier Resolution No. 1209 dated
7. 7 .2006 ·and withdraws Notification No. 1855 dated
18.1 f.2007. So far so good. The only thing that remained was
to revive the combined seniority/ gradation list also which was G
issued on 17.8.2007 and give further benefits ofpromotion,
postings, ACP etc. based thereupon.
, 25. We find that first order dated 24.4.2013 was issued
i for grant of ACP. While giving this benefit, seed of mischief is H
'
400 SUPREME COURT REPORTS [2014) 7 S.C.R. .
A sown as is clear from the following portion therein:
"For implementation of the order of the Supreme Court
dated 23.11.2012, the grant of consequential benefits with
effect from 1.1.1977 to the merged officers is being
examined. In the course of such examination, it has been
B found prima facie that before issuing Resolution No. 1209
dated 7.7.2006. all points were not fully considered."
26. It is a matter of record that Resolution No. 1209/2006
was passed by the Cabinet which means that it was the
C decision at the highest level. It was not open to some officer
sitting in the Education Department to make such comments
by exhibiting his superior knowledge about the purported
issued, that too in an order granting ACP to the merged
teachers as a consequence of merger. This was the starting
o point to reopen the settled issue of merger of two cadres.
27. We would like to point out here that officers of erstwhile
BES i.e. BES Association had filed I.A. 25-26 of 2013 in this
very decided appeal i.e. C.A. No. 8226-8227 of 2012 seeking
to rake up the same issue about the gradation list. This was
E specifically contended that merger takes effect from the date
when posts are created. Apprehension was expressed that
affect the vested right of seniority of the members of BES
Association (BESA) who are already in the cadre, particularly
Respondent Nos. 2, 3 and 51 and some other members of
F BESA. It was mentioned that some of the officers were holding
the post of sub-Director or RODE who were appointed in
December, 1983 and ·~hey may have to face reversion.
However, this I.A. was dismissed by the Court.
G 28. Notwithstanding the aforesaid, we find that 2014 Rules
seek to achieve the same result which was neither the intent
of merger nor was permitted by this Court at the instance of
BESA in their application. On the contrary, as noted below, by
an ingenious method, effect of merger is undone thereby.
H
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 401
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
29. These 2014 Rules created four sub-cadres within BES A
which are as under:
"3. Constitution of service: The Bihar Education Service
shall be a state service. There shall be following four sub
cadres in this service:- B
(a) Bihar Education Service (Administration sub cadre)
(b) Bihar Education Service (Teaching sub cadre), (Dying
Cadre)
(c) Bihar Education Service (Research & Training sub
c .
cadre) and
(d) Bihar Education Service (Isolated sub cadre)."
Rule 4 states that none of the officers of one sub-cadre D
will be transferred and posted in another sub cadre.
30. It follows from tl)e above that the teaching sub cadre,
to which category members of the petitioner association belong
to, is not only isolated again but even treated as "dying cadre". E
In order to ensure that members of BESA continue to enjoy their
promotions which were given earlier and those are not
disturbed, it is further prov!ded that persons belonging to
teaching cadre namely the petitioners would not be transferred
and posted in administrative sub cadre. What BESA attempted
to achieve by means of C.A. Nos. 25-26/2013 and was F
declined by this Court, is now accomplished with this
methodology.
31. To add insult to the injury caused to the petitioner, Rule
27 of the Rules gives option to the members of other sub cadre G
for inclusion in a different cadre fulfilling the prescribed
qualifications, but no such option is given to the teaching cadre.
This Rule 27 reads as under:
"27. The officers appointed/ promoted and working on the H
402 SUPREME COURT REPORTS [2014] 7 S.C.R
A above posts of this sub cadre and having the prescribed
qualification of these posts shall give the option for
inclusion in this sub cadre. In case of having no
qualification or not giving option for inclusion in this sub
cadre or in case of working on deputation basis, they shall
B be reverted back to their own cadre, if they are appointed
on these posts, they shall remain on their posts but they
shall not get the benefit of regular promotion in this sub
cadre."
32. By placing the erstwhile BSES teachers in teaching
C sub cadre, are allowed to go upto the position of Principal which
is the highest promotional post in their sub cadre. On the other
hand BES Officers who are put in administrative sub cadre
would continue to control the schools. Moreover, each sub cadre
is to have its separate seniority list. It means the combined
D gradation list is given a go bye and even by bringing BSES in
BES, segregation between the two cadres is achieved with
these provisions. To our mind the aforesaid provisions of 2014
Rules negate the very effect of merger which was envisaged
way back in the year 1977. In spite of succeeding in three
E rounds of litigation, the petitioners are not only treated as a
distinct and separate class with the creation of the aforesaid
sub cadre, the benefit which could accrue to them in a
combined seniority list, as a result of merger, have been
snatched away from them. What was given to these petitioners
F by the respondents in compliance of the judgment earlier, has
now been taken away with the promulgation of 2014 Rules.
33. Lest we may be misunderstood, we make it clear that
it is the prerogative of the Government to frame service rules
in one or the other manner. In case provisions contained in
G
those Rules offend the rights of any of the employees, they have
an independent right to challenge the same which can be
judicially scrutinized by the Courts, applying the settled
principles of judicial review. However, if such an exercise is
undertaken on the premise that it is done to comply with the
H
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 403
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.] .
directions contained in the judgment and the Court. finds that, A
ex facie, it is not so and on the contrary offends the directions
in the judgment, such a move cannot be countenanced.
34. It is also crystal clear and borne from the record that
the whole exercise was done to go ~ut of way to help BES B
Officers. In fact, Mr. Rao even argued on these lines by pointing
out that the promotions in BES cadres were made in two
stages i.e. upto 31.12.1995 in one stage and from 1.1.1996
till now in the second stage. From 1.1.1996 no promotion was
given to BES because it was need based and since the posts
were to be identified, only the additional charge was given to C
them. What is lost sight of, in this entire arguments, is that, the
merger is to take effect from 1977 and even Resolution to that
effect is passed by the Cabinet. Further once that is done and
the combined gradation list issued in the year 2007 was to be
necessarily revived, further steps were to be taken from that D
stage. This Court is not suggesting that those of the petitioners
who become senior to their counterparts in BES, should be
given automatic promotion to second or third stages which was
the apprehension expressed. These officers, as a result of
merger and combined gradation list, would take their rightful E
place and thereafter their career progression would be
permissible as per the Rules. For this purpose it was open to
the Government to frame the Rules and make provisions laying
down eligibility conditions. However, by well crafted technique
of creating sub cadres and treating teaching category as dying F
sub cadre, almost the same result, which was the position
before the merger, is achieved. It is obvious that such
provisions in 2014 Rules are made with the sole intention to
frustrate the effect of the judgment. We have no hesitation to
say that this would amount to contempt of the Court. G
35. Having held so, let us consider as to what steps are
required for proper implementation of the judgment. Since the
statement is made by Mr. Rao, which is contained in
Government written response as well, that the petitioner would H
404 SUPREME COURT REPORTS (2014] 7 S.C.R.
A be given all due benefits of ACP and their pension will also be
not reduced, we take to that statement on record. What remains
is the restoration of combined gradation list and posting of the
officers of the petitioner's association and their promotions on
that basis. Having regard to the concession made by Mr.
B Patwalia in the form of solution suggested by him, it is not
necessary for us to give directions to the administration to make
all consequential amendments in the 2014 Rules. Mr. Patwalia,
submitted that if Rule 27 is amended to give option to the
teachers as well, the petitioners would be satisfied with the
c same. We are of the opinion that it is a very fair suggestion to
solve the problem.
36. We thus, dispose of these Contempt Petitions with the
following directions:
D (i) The combined gradation list issued on 17.8.2007 is
· revived and is to be acted upon and implemented by the
Respondents/ Authorities, or
Suitable amendment in the alternative be made in Rule 27
of 2014 Rules giving option to the teachers also, as
E
permitted to other sub cadres.
(ii) It would be open to the respondents not to demote
those BES Officers who are holding administrative
assignment on the higher posts. However, that would not
F be at the cost of those petitioners belonging to teaching
sub cadre who, as a result of combined seniority list, have
become senior to BES Officers. We leave it to the
Government to find whatever solution they have to deal with
this issue.
G
(iii) Consequential benefits which may accrue to the
petitioners shall be accorded to them.
(iv) The entire exercise be done and accomplished within
a period of 3 months.
H
BIHAR STATE GOVT. SEC. SCL. TEACHERS ASSN. 405
v. ASHOK KUMAR SINHA [A.K. SIKRI, J.]
(v) On failure on the part of the respondents/ administration A
to take the aforesaid steps, it would be open to the
petitioners to move an I.A. in these very Contempt
Petitions seeking its revival with prayer to proceed further
against the respondents in accordance with law.
B
(vi) The petitioner shall also be entitled to the costs of these
proceedings, which we fix at Rs. 50,000/-.
Bibhuti Bhushan Bose Contempt Petition disposed of
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