Holding

The bifurcation scheme is ultra vires Articles 14 and 16(1) of the Constitution and the High Court's decision quashing the notification stands.

Summary

The Bihar State Government issued a notification on 18 November 1986 bifurcating the single Secondary Education Service cadre into separate cadres, allegedly to provide quicker promotional avenues for lower‑ranked teachers. The notification was challenged before the Patna High Court, which held that the bifurcation violated Articles 14 and 16(1) of the Constitution because it disrupted the established seniority order and gave unequal promotion opportunities. The State appealed to the Supreme Court by Special Leave Petition. The Supreme Court examined whether the State could validly frame such rules under the proviso to Article 309 and whether the scheme infringed the constitutional guarantees of equality. Relying on earlier judgments, the Court affirmed that the High Court was correct and that the bifurcation was ultra vires Articles 14 and 16(1). Consequently, the appeal was dismissed and the notification remained quashed.

Issues considered

Whether the bifurcation of the Secondary Education Service cadre by the State Government under the proviso to Article 309 is constitutionally valid.
Whether the bifurcation violates Article 14 (equality before law) and Article 16(1) (equality of opportunity in public employment) of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 16(1), s. Article 309

Subjects

Service lawCadre bifurcationEqualityPromotionArticle 14Article 16Public employmentSeniorityBiharSubordinate Education Service

Judgment

A JAGDISH PARSAD SINHA & ORS.
v.
BHAGWAT PRASAD & ORS.

AUGUST 1, 1989

B [RANGANATH MISRA AND KULDIP SINGH, JJ.]

Constitution of India 1950: Articles 14 and 16-Service cadre--
Bifurcation of-To provide quick promotional avenues to those lower
down in the joint cadre action held ultra vires.

Civil Services: Bihar Subordinate Education Service (Teaching
C Branch) Determination of Seniority Rules: Secondary Education
Service-Cadre Bifurcation of for providing quick promotional
avenues to those beyond the eligible zone-Action-Held illegal and
ultra vires.

D On 20th February, 1975, the State Government published a joint
seniority list of teachers of subordinate Education Service belonging to
the Boys branch, and the Higher Secondary Teachers of the Sub·
ordinate Educational Service. This joint vadation list was challenged
before the High Court, but the writ petition was dismi""td as also an
application for review of the dismissal. The Special Leave Petition
E against the aforesaid decision was dismissed by this Court on 30th
March, 1981.

F
The aforesaid single cadre known as Secondary Education Service
was difurcated by the State Government by its Notification dated 8th
November 1986 under which the Subordinate Education Service
(Teaching Branch) Determination of Seniority Rules, were framed
-
under the proviso to Article 309 orthe Constitution.

This bifurcation scheme was cballenged in the High Court. The
stand of the Government was that the demand for such bifurcation
was taken up in the legisblture iuld in terms of the decision or the
G Implementation Committee or the BBiar Lqislative COUllCil, the new
scheme for bifurcation bad to be implemented. The Hilb Court by its
decision dated 27th November, 1987 qnashed the Notification dated
18th November, 1986 under which the bifnrcation was done. .-

The High Court was of the view that though the authority of the
H
state to frame rules in terms or the provioo to Article 309 was unques-
tionable, yet notice bad to be lllUa of the fld that dime who steod
658
J.P. SINHA "· BHAGWAT PRASAD [MISRA. J.[ 659

together and fell in line to proceed further in the seniority list have to he A
provided all opportunities in respect of their avenues of promotion alike
without breaking that order, so that one who ranks higher in the grade
may not go down in due course of service, and held that the rules in the
Notification dated 18th November, 1986 were ultra vires Articles 16(1)
and 14 of the Constitution.
B
Dismissing the Special Leave Petition to this Court,

. HELD: The High Court, rightly found fault with the State Gov-
\.v.ernment action, and holding that the rules in the Notification dated 18th
November, 1986 are ultra vires Articles 16(1) and 14 of the Constitu-
tion. [660F] c
Counsel for the State was not able to dislodge tbe conclusion that
bifurcation was the outcome of an attempt to provide quick promo-
tional avenues to those who were lower down in the joint cadre and
would not have come within the range of consideration for promotional
benefits but by bifurcation became entitled to such benefits. [661C] D

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 656
of 1989.

From the Judgment and Order dated 27.11.1987 of the Patna
High Court in C.W.J.C. No. 1254of 1987. E

- Tapas Ray and D.P. Mukharjee for the Appellants.

M.K. Ramamurthi, P.P. Singh, A.N. Trehan and Promod
Swarup for the Respondents.
F
The Judgment of the Court was delivered by

RANGANATH MISRA, J. This appeal by special leave is direc-
ted against the decision of the Patna High Court dated 27. 11. 1987
quashing the notification dated 18.11.1986 under which in terms of the
Subordinate Education Service (Teaching Branch) Determination of G
--;. Seniority Rules framed under the proviso to Article 309 of the Con-
stitution, the hitherto single cadre known as Secondary Education
Service was bifurcated.

On 20th of February, 1975, the State Government published a
joint seniority list of teachers of Subordinate Education Service be- H
longing to the Boys S<:hool branch and the Higher Secondary Teachers
660 SUPREME COURT REPORTS [1989] 3 S.C.R.

A of the Subordinate Education Service. The joint gradation list was
challenged before the High Court in Writ Petition No. 2956 of 1975.
The High Court dismissed the writ petition as also an application for
review of such dismissal. On 30th March, 1981, this Court dismissed
the special leave petition carried against the decision of the High
Court. When with the dismissal of the special leave petition the posi-
B tion was getting settled, the State Minister of Education came forward
with a proposal that the cadre should be separated and the Higher
Secondary teachers and Secondary teachers of the Upper Division of
the Subordinate Education Service should have a separate gradation
list. Ultimately by the impugned notification the bifurcation was done., J,
The Government took the stand that the demand to bifurcate was I
c taken up in the Legislature and in terms of the decision taken by the
Implementation Committee of the Bihar Legislative Council, the new 4-
scheme of bifurcate came to be done.

The High Court considered the matter at great length and with
care. The legal position as settled by several decisions of this Court
D was noticed. Towards the end of the judgment the High Court has said:

"We have referred to the judgment of the Supreme
Court in K.S. Vora & Ors. v. State of Gujarat & Ors., only
to illustrate that the courts have at no time ignored the ~
interest of the employees and questioned the authority of
E the State to frame rules in terms of the proviso to Article
309 of the Constitution of India, but the courts have always
taken notice of the fact that those who stood together and -
fell in line to proceed further have to be provided all
opportunities in respect of their avenues o,f promotion alike
without breaking that order; so that one who ranks higher --i.'
F in the grade may not go down in due course of service. It is
in this context that we have no hesitation in holding that
rules in the notification dated 18.11.1986 are ultra vires
Articles 16( 1) and 14 of the Constitution.

We do not propose to predicate into what is alleged
G to be the ma/a fide of the respondent.State inasmuch as
after the judgment of this Court in C:W.J.C. No. 2956 of )-·
1975, the Minister of State decided to find means to disinte-
grate the already integrated cadre or the Chairman of the
Legislative Council, having no apparent role in the process
of making rules in terms of proviso to Article 309 of the
Constitution appeared and influenced the process. We
;;;;.
;;.

J.P. SINHA v. BHAGWAT PRASAD [MISRA, J.J 661

""°'·· refrain from going into. this aspect, for we think, with our A
.., conclusion as above, the upper division of the Subordinate
""': Education Service shall continue to have the same respect
as it got from the judgment of this Court in C.W.J.C. No.
2956 of 1975 and no one in the Government shall in future
again attempt to deny to the members of the said service
their due rights for promotion to the selection grade and B
other higher posts."

. In course of hearing of the matter, counsel for the State was not
~able to dislodge the conclusion that bifurcation was the outcome of an
· attempt to provide quick promotional avenues .to those who were
lower down in the joint cadre and would not. have come within the c
range of consideration for promotional benefits but by bifurcation
became entitled to such benefits. The High Court, in our opinion,
rightly found fault with such action.

We have considered the matter fro~ different angles keeping the
relevant aspects in view but have not been able to satisfy ourselves that D
the judgment of the High Court suffers from any infirmity to justify its
vacation. · ·

X The appeal is accordingly dismissed but parties are left to bear
their respective costs.
E

- N.V.K. Appeal dismissed.

I