State of Bihar & Ors. v. Shyama Nandan Mishra
HRISHIKESH ROY, J.
1. Heard Mr. P.S. Patwalia, learned Senior Counsel appearing for
the appellants. Also, heard Mr. Vinay Navareand Mr. V.N. Sinha, learned
Senior Counsels appearing for the contesting respondents. The Intervener
is represented by Mr. Vijay Hansaria, learned Senior Counsel.
2. The challenge here is to the judgment and order dated 30.4.2013
in CWJC Case No. 18793 of 2008 and analogous cases whereby the
Division Bench of the High Court at Patna, granted relief to t he writ
petitioners and declared that the +2 lecturers, both in the Gov ernment
and the nationalized (taken over) secondary schools, appointed pursuant
to Advertisement No.1/87, have always been part of the Bihar
Subordinate Education Service (for short “BSES”)and thereby, they
are entitled to be merged with the Bihar Education Service Class II
(for short “BES”), pursuant to the Government decision dated 07.07.2006.
The Court also interfered with the impugned notification dated 23.6.2009,
which provided for the encadrement of the +2 lecturers with the teachers
in the nationalized secondary schools, which was fo und to be in
contravention of Article 790 of the Bihar Education Code and also contrary
to the Government’s decision dated 07.07.2006 and the Advertisement
No. 1/87. Thus, the impugned order dated 6.10.2006 and the notification
dated 23.6.2009 were quashed and set aside.
3. At the outset, it is imperative to take note of th e relevant
background and the previous litigation rounds which led to the present
proceedings.
BACKGROUND
4. The Government of Bihar constituted a committee headed by
Shri Saran Singh in 1976, to address the problem of stagnat ion etc. in
Bihar Civil Service and to consider opportunities for promotion. The
committee’s recommendations with respect to the Bih ar Education
Department included the integration of 59 posts in the miscell aneous
cadre (comprising of teachers, professors,etc, who held isola ted posts
with no definite prospects of promotion), into the Bihar Education
Service Cadre. In line with these recommendations, the Government
issued Regulation dated 11.04.1977, upgrading 2465 sanctioned posts of
1145
teachers of subordinate education service male and female c adre, into
Bihar Education Service Class II w.e.f01.01.1977.
5. The Association representing the teachers of the BSES filed a
writ petition in the Patna High Court claiming merger of their cadre with
the BES, pursuant to the resolution dated 11.04.1977. The writ petition
was allowed on 02.02.2000 and the subsequent LPA and SLP were
dismissed. Since the consequential benefits of the merger were still not
forthcoming, another writ petition was filed, which too was allowed and
affirmed in the LPA. The civil appeal before this court was dismissed on
19.04.20061, deciding the outcome in favor of the writ petitioners, i.e.,
the members of the BSES.
6. In compliance of the aforesaid judgment of this Court, a
Resolution dated 07.07.2006 was issued, whereby the cadre of BSES
(Teaching Branch) (Male and Female Teachers) was merged wit h the
BES, Class–II w.e.f. 01.01.1977. At this stage, members of the BES
Association, apprehending adverse impact on their inter-se seniority, filed
a writ petition, challenging the merger. A Single Judge of the High Court
allowed the WP on 31.10.2007 2. Immediately after this judgment, the
State Government (without waiting for the outcome of the LPA),in
compliance of the Single Judge judgment, quashed the merger resolution
vide notification dated 19.11.2007, thereby withdrawing the fin ancial
benefits flowing therefrom.
7. The decision of the Single Judge was affirmedby the Division
Bench. The resultant SLP and the appeal therefrom was ultimately
allowed by this Court ina detailed judgment dated 2 3.11.2012 3.
Consequently, the initial government decision (07.07.2006), by which
the cadre of the BSES teachers (teaching branch)was merged with t he
BES, stood restored and the State was directed to act accordingl y. In
arriving at the conclusion, the Supreme Court pertinently observed that
once the merger decision was already upheld by this court in earlier
rounds of litigation and was also acted upon by the State, the High Court
should not have reopened the matter at the instance of the BES
Association. The fluctuating stand and indecisiveness of the government
was also noted with displeasure by the Supreme Court in its judgment.
8. The government, however, was dilly-dallying on the aspect of
restoration of the earlier position, consequent upon the merg er of the
1State of Bihar Vs. Janardan Rai ,(2012) 13 SCC 59
2Bihar Education Service Assn. Vs. State of Bihar , (2008) 1 BLJR 431
3Bihar State Govt. Secondary School Teachers Assn. V s. Bihar Education Service
Assn.,(2012) 13 SCC 33
STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA
[HRISHIKESH ROY , J.]
two cadres. Ultimately, contempt proceedings were initia ted by the
disgruntled members of the BSES in Bihar State Government
Secondary School Teachers Association Vs. Ashok Kum ar Sinha 4,
wherein this court had the occasion to observe that the Bihar Education
Service Rules, 2014 were in the teeth of the judgment rendered on
23.11.20125. This was because the Government had introduced four sub-
cadres in the BES (merged entity) under 2014 Rules , conspicuously
barring transfer from one sub-cadre into another. Those in the BSES
were placed in the teaching sub-cadre, where Principal wo uld be the
highest promotional post whereas those in the BES w ere put in
administrative sub-cadre, who would continue to control the school
administration as before. The teaching sub-cadre was yet again isolated
and also treated as a “dying cadre”. Through this act of the government,
those in the BSES were effectively prevented from being tr ansferred
and posted in the administrative sub-cadre. Glaringly, Rule 27 gave option
to members of the other sub-cadres for inclusion in a different cadre on
fulfillment of prescribed qualifications, but no such option w as made
available to the teaching sub-cadre.
9. Noticing the above attempt to deny equal benefits to the BSES
cadre vis-à-vis the BES cadre, the Supreme Court significantly observed
that the promulgation of the 2014 Rules by the Bihar government,
amounted to circuitous contrivance, to maintain the position which existed
prior to the merger and to unjustly protect the interest of th ose in the
BES. Accordingly, directions were issued to revive the combined gradation
list or in the alternative, to suitably amend Rule 27 to give effect to the
real purpose of the merger.
PRESENT LITIGATION
10. The facts germane to the present appeal are now to be noted.
The Bihar Government in 1979 introducedthe 10+2+3 education pattern
(i.e. 10 years of schooling, 2 years of higher secondary and 3 years of
college graduation). At the relevant time, in the absence of s ufficient
infrastructure, higher secondary education was imparted by colleges.The
posts of +2 lecturers were sought to be created to impart +2 level teaching.
11. Pursuant to the above decision,the BiharGovernme nt on
13.11.1985sanctioned 148 posts of lecturers in Subordinate Service
Selection Grade for government schools and264 posts of lecturers in
nationalized schools, providing common pay scale of Rs. 940-1660 for
4 (2014) 7 SCC 416
5Supra
1147
both categories of lecturers. It may be highlighted that only the posts of
the +2 lecturers in the Government schools were specified to be in the
BSES Selection Grade. Thereafter, the Bihar School Service Board issued
the advertisement No. 1/87, initiating the process of selecti on. The
advertisement, pertinently, reflected the following:-
“Class – I:
Lecturers in the Subordinate Service Grade in the +2 Stream (Inter
level) Government Boys/Girls High Schools.
**** **** ****
Academic Qualification:
For the Cass – I posts: Second class Post Graduation Degree in
the concerned subject from a recognized university.
For the Class -II and III posts of the Subordinate Education Service
(Education Branch) for both male and female categories:
Trained graduate in the concerned Subject.” (SIC)
**** **** ****
The candidates were to apply for posts of lecturer in the
Subordinate service grade and the advertisement pre scribed Post
Graduation in 2nd division, as necessary qualification for the posts.
12. The selected candidates were then issued the appointment
orders, which reflected that the appointments were being made to newly
created ex-cadre posts in +2 schools, on ad-hoc and temporary b asis.
These temporary appointments werecontinued for succeeding academic
years under various government notifications, issued from time to time.
13. The main cause for the present litigation is th at while
implementing the merger decision (07.07.2006), an exception was carved
out by the government on 06.10.2006, whereunder, the benefit of merger
into BES was denied to the +2 lecturers in Government schools. The
ostensible premise for the deviation was that the +2 lecturers were never
treated or recognized as part of the BSES cadre. The +2 lecturersbeing
aggrieved thus, moved the High Court in CWJC 14009/2006 and other
connected writ petitions, contending that their posts were created in the
BSES. This position was also reflected in the advertisement No. 1/87
through whichthey were recruited.In effect, the benefits of the me rger
with the BESwere claimed in these matters.
14. During the pendency of the above Writ Petitions in the High
Court, the State Government on 23.06.2009, in exercise of powers under
Section 9 read with Section 15 of the Bihar Non-Government
STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA
[HRISHIKESH ROY , J.]
Secondary Schools (Taking over of Control and Managem ent) Act,
1981, framed the Bihar Government Higher Secondary Schools
(Service Conditions) (Amendment) Rules, 2009 (for short “2009
Rules”)and notably decided to amend the Bihar Taken- over Secondary
Schools (Service Conditions) Rules, 1983. Through the 2009
amendment, the lecturer was defined to mean the +2 lecture rs who
were appointed pursuant to the Advertisement No. 1/87 and they were
encadred with the nationalized secondary school teachers.
15. As a result of the aboveencadrement with the teachers of the
nationalized school category, further challenge was generated in the High
Court by the +2 lecturers.It was specifically contended t hat the +2
lecturers have always been treated as above the sec ondary school
teachers in nationalized schools and therefore encadrement of the t wo
unequals is unjust.
16. The High Court in the impugned judgment categorically held
that the +2 lecturers who were appointed pursuant to Advertisem ent
No. 1/87, were always a part of the BSES. Concomitantly, the artificial
grouping of +2 lecturers with the teachers of nationalized schools (vide
notification 23.06.2009), was found to be unjustified and interdicted. While
concluding thus, the High Court noted that Advertisement No. 1/87
specifically mentioned Subordinate Education Service.Besides the “plus
two secondary schools”, where the lecturers were imparting education,
were envisaged as part of the BSES as was clearly disce rnable from
Article 790 of the Bihar Education Code. While opining in favour of the
present respondents, the Court relied upon the earl ier judgment
(30.9.1997) of Justice S.J. Mukhopadhaya in CWJC No. 2445/1994 to
say that postings in either the government or nationalized schools at the
relevant time were fortuitous and the rights of +2 lectur ers would not
depend on their chance postings in either of the schools. The Division
Bench also gathered that mere reference to ex-cadre posts in the
appointment letters and lack of decision by government in assimilating
the + 2 lecturers into the cadre of mainstream teacher, will not deprive
them of their legitimate rights. The Court took a dim view of the
indecisiveness and fluctuating stand of the Bihar government which led
to a spate of litigations.Thus, relief was granted to the respondents with
the declaration that the +2 lecturers of both schools, who were appointed
under the Advertisement no. 1/87, have always been part of th e BSES
and consequently of the BES.
17. Challenging the impugned judgment, Mr. P.S. Patwalia, learned
senior counsel in the appeal arising out of the lead SLP, submits for the
1149
State of Bihar that the appointment letters specifically mention that the
+2 Lecturers were appointed in Ex Cadre Posts and the decision wi th
respect to their separate cadre formation was to be taken shortly. Further,
the posts of + 2 lecturers were not in existence in 1977, when the policy
decision to merge BSES with BES was taken. According to Mr. Patwalia,
the encadrement is in conformity with the Bihar Non-Government
Secondary Schools (Taking over of Control and Managem ent) Act,
1981, since the recruitment of the + 2 lecturers was made by the School
Service Board which is a statutory body formed under section 10 of the
Act. Appellant’s nextsubmission is that in previous rounds of litigation,
the respondents sought only pay scale parity with members of the BSES
and as such, the Writ Petition in the High Court in the current roundi s
barred by the principles of constructive res judicata besid es inordinate
delay.The reference to the BSES, Selection Grade in the
Advertisement,according to the State’s counsel,was made only to identify
the grade for the post of lecturers but not for the purpose of their inclusion
into the BSES cadre.
18. On the other hand, Mr. Vinay Navare, learned Senior Counsel
appearing on behalf of the + 2 lecturers (respondents) would argue that
the terms of the policy decision dated 13.11.1985 a s well as the
Advertisement No. 1/87 are unambiguous and it is clearly set ou t that
the posts of + 2 lecturers in Government schools are createdin the Junior
Selection Grade of BSES. According to Mr. Navare, the expression ex-
cadre in the appointment order was incorporated only to allay the anxiety
of the Assistant Teachers in the Government Seconda ry Schools
(members of the BSES), who because of merger, apprehended loss of
their seniority to the +2 lecturers. The 1981 Act controls taking over of
Non-government Secondary Schools and the notification introduced by
the 2009 Rules, framed under the 1981 Act, for encadrement of the +2
lecturers of the Government schools with the nationalized schools, without
the relevant amendments to the 1981 Act, is argued by Mr. Navare to be
neither conclusive nor legally acceptable.
19. In his turn, Mr. Vijay Hansaria, the learned Senior Counsel
representing the interveners i.e. the Bihar Education Service Association
arguesthat the members of the BES Association should not lose out on
seniority, on account of the merger of the contesting respondents into
the BES Cadre, from the initial date of their appointment. This is apart
from pointing to the Bihar Education Service Class-I and Bihar Education
Service Class-II Rules 1973 and submitting that unless due rules are
amended, neither executive action nor court orders can be a wa y out.
STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA
[HRISHIKESH ROY , J.]
He further contended that the matter falls in the realm of state policy.The
aspect of the appointments being ex-cadre is stressed.
DISCUSSIONS AND FINDINGS
20. It is evident from the Notification dated 13.11.1985 that the
posts of + 2 lecturers (in the government schools) were crea ted in the
cadre of BSES, in the pay scale of Rs. 940-1660/-. The cadre for the +2
lecturers posted in the nationalized schools was not specified therein,
though the posts were created in the same pay scale. The s ubsequent
Advertisement No. 1/87 also unequivocally stated that the applications
for +2 Lecturers in Government schools were invited in the BSES Cadre
in the pay scale of Rs. 940- 1660/-. Those selected were then grante d
fortuitous appointment in either the government or the na tionalized
schools.
21. That the posts were constituted in the BSES Cadre is adequately
reinforced in the judgment dated 30.09.1997 in the CWJC No. 2445/
1994 by Justice S.J Mukhopadhaya, through which, the artificial distinction
in both categories of +2 lecturers (posted in either Government or Taken
Over schools) was obliterated. It is a fact thatthe Bihar Pradesh +2
Lecturers’ Association moved Court primarily for redressal of the pay
scale anomaly of the +2 lecturers appointed in the Government and taken
over schools, out of the common advertisement No. 1/87. It was projected
in those proceedings that while accepting the 5 th Pay Revision
Committee’s recommendations, the State Government p rovided for
distinct pay scales to lecturers serving in the Government Se condary
Schools and the Nationalized Secondary Schools. The Court noticed the
discrimination between both sets of lecturers, performing sim ilar duty
with similar nature of job and same qualifications. The +2 lecturers
accordingly were held entitled to same scale of pay, i.e., Rs. 2000-3500/
- as fixed for the members of the Subordinate Education Service (Junior
Selection Grade). This way, not only the pay differencewas eliminated
but more significantly for this case,the lecturers serving in Government/
Nationalized +2 schools were treated as equivalent to members of the
BSES cadre by offering the same pay scale attached to the BSES
members. Subsequently, in compliance of the judgment, the Finance
Department notified the common pay scale of Rs. 2000- 3500/- for the
+2 lecturers in the Taken Over schools vide its Res olution dated
10.06.1999,therebyeffectively treating them to be a t par with the
Subordinate Education Service teachers.
22. The above situation would negate the State’s contention that
the +2 lecturers are outside the BSES cadre, only b ecause the
1151
appointment letters stated that their appointment was agains t ex-cadre
posts on temporary basis. Significantly, the pay scale mentioned in the
appointment order was Rs. 940-1660/-, which matched the pay scale
offered to the lecturers in the Junior Selection Grade of th e BSES (as
reflected in the notification dated 13.11.1985 and the advertisement No.
1/87).
23. Thenoteworthy take awayfrom above is that the appointment
letter is at variance with all other relevant documents , such as the
advertisement; the notification (13.11.1985)creating the posts in BSES;
as well as the Finance Department notifications, offer ing pay scale
equivalent to the members of the BSES. The appointment letters, despite
suggesting the post to be ofex-cadre category, notably offered the same
pay scale attached to Government school lecturers in the BSES Cadre.
The learned counsel for the respondents on this aspectthereforeappears
to be correct in his submission that the reference to ex-ca dre in the
appointment letters was only to allay the anxiety of the Assistant Teachers
in the Government Secondary Schools (members of the BSES), who
apprehended loss of their seniority. In such circumstances, the ex-cadre
reference in the appointment letters must not,in ourview,eclipse all the
other contemporaneous documents, supporting the contentions of the
respondents.
24. It is also argued by the State’s counsel that the
recommendations of the Saran Singh Committee cannot be applied qua
the respondents, since the posts of +2 lecturers were not in existence in
1977 and were created only in 1985. On this, it is seen that the government
is closemouthed and rather vague on the total posts which existe d in
1977; how many posts were created subsequently and the precise number
of posts which existed as on 07.07.2006. Therefore, the State cannot be
allowed to raise such contentions when they have failed to disclose how
many posts existed initially and the stages at which, additi onal posts
were created by the government. Besides, the merger decision
(07.07.2006)pertinently omitted to say that only posts in existe nce in
1977, were intended to be merged.
25. Moreover, the Government decision (06.10.2006), through
which the +2 lecturers were denied the benefit of merger with the BES,
was not founded on the ground that posts of +2 lecturers were not borne
in 1977. The ostensible reason was that the +2 lecturers were ne ver
recognized in the BSES. Such attempt by the government to supplement
reasons,not found in their order,cannot legally be permitted. In situation
of this kind, the ratio in Mohinder Singh Gill Vs. Chief Election
STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA
[HRISHIKESH ROY , J.]
Commissioner, New Delhi 6 is worth remembering where the Courtso
correctlydeclared that validity of an order by a statutory f unctionary
must be judged by the reasons mentioned therein and supplementary
reasons in the shape of affidavits must be excluded.
26. Staying with the same point,we may also remind ourselves of
the telling opinion in Commr. of Police, Bombay Vs. Gordhandas
Bhanji7 where J. Vivian Bose illuminatingly wrote as under:
“Public orders, publicly made, in exercise of a sta tutory
authority cannot be construed in the light of expla nations
subsequently given by the officer making the order of what
he meant, or of what was in his mind, or what he intended to
do. Public orders made by public authorities are me ant to
have public effect and are intended to affect the actin gs and
conduct of those to whom they are addressed and mus t be
construed objectively with reference to the language used in
the order itself.”
Taking a cue from above, it must besaid unequivocallythat the
State must not be allowed to bring in additional explanation to justify
their actions when those are conspicuous by their ab sence, in the
government decision.
27. The appellants’other contention is that the +2 lecturers have
no semblance of similarity with the BSES, to enable assimilation into the
BES. Only for this ostensible reason, the +2 lecturers in nationalized and
Government schools were amalgamated with the teachers of nationalized
schools, vide notification dated 23.06.2009. On this, what is relevant is
that no intelligible differentia could be pointed out by the state’s counsel
to sustain such arbitrary classification between +2 lecturers and the BSES
secondary level teachers,posted in government schools. Therefore, such
contention from the appellants’ side, being devoid of any foundation, is
considered butrejected.
28. Significantly, as per Advertisement 1/87, the lower pay scale
of Rs. 850 – 1360/- was offered to the teachers in the Secondary Schools
in the cadre of BSES as compared tothe pay scale offered to the + 2
lecturers. Furthermore, the academic qualifications specified therein for
+ 2 Lecturers was Post Graduation in 2 nd division, whereas for other
posts, a bare graduate would satisfy the prescribed qualification.As such,
the exclusion of the respondents from the BSES cadre and consequently
6 1978 (1) SCC 405
7 AIR 1952 SC 16
1153
from BES, despite rendering continuous services in the same government
secondary schools as teacher members of the BSES, h as led to a
discriminatory situation, wherein, the BSES teachers who are junior (in
terms of education qualifications and pay scale) to the respondent s in
Government secondary schools, have got the benefit of higher scale of
pay and also avenues of promotion to key controlling positions in the
education department. This would surely infringe the rights of t he +2
lecturers, guaranteed under Article 14 and Article 16(1) of the
Constitution.
29. Instead of rectifying the anomalous situation noticed above,
the Government, in a rather arbitrary fashion and without any application
of mind to the issue, vide notification dated 23.06.2009, surprisi ngly
positioned the +2 lecturers at parwith the teachers of the nat ionalized
secondary schools.The unacceptable justification given for this is that as
a result of the + 2 lecturers’ placement into the cadre o f nationalized
school teachers, the +2 lecturers have been provided the promotion al
avenue to academic postsof Head Master, and higher scale has a lso
been provided for them. However, the +2 lecturers are conspicuous ly
denied the opportunities for promotion to key administrative posts whichis
available to those in the BES Cadre. Such arbitrary a ction of the
government in favoring the BES officers to enable them to exclusively
occupy the key administrative posts, was noticed and was subjected to
court’s caustic comments in the previous rounds of litigation 8. Having
read those and also taking into account the repeated attempt s by the
state to inordinately favour those in the BES cadre, we are constrained
to observe that the state government is not acting bonafide and is persisting
in their iniquitous attempt to deny tothe respondents,what is legitimately
due to them.
30. The following discriminatory action of the State is necessary
to be noticed to indicate their iniquitous conduct. Firstly, the Bihar Non-
Government Secondary Schools (Taken over of Control and
Management) Act, 1981, does not authorize determination of the service
conditions of the +2 lecturers. The 1981 Act was intended to provide for
“taking over” of non-government secondary schools under the state
control, for improvement, better organization and dev elopment of
Secondary Education in the state of Bihar. The +2 le cturers in
government schools cannot be encadred with teachers of ‘Taken Ov er
Schools’ since the definition of ‘Teacher’ in the 1981 Act shows ‘Teacher
in the Taken Over Secondary Schools’. Section 9 enables the State
8 See discussion Supra Note 4
STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA
[HRISHIKESH ROY , J.]
Government to determine the service conditions of the Headmaste r,
Teacher and non-teaching staff of only the Taken Over Secondary Schools
(but not of government schools). Neither section 9 nor Section 15 of the
1981 Act empowers the State Government to amend Rules to expan d
the scope of the Act. As such, the 2009 Rules, introducing the notification
(23.06.2009), purported to be framed under section 9 read with section
15 of the 1981 Act, are found to be at variance with the provisions and
the purpose of the 1981 Act. The Notification (23.06.2009) is well beyond
the ambit of the 1981 Act, and could not therefore have been issued,
without the necessary amendments to the 1981 Act.
31. Next, let us test the impugned action of the Government on
the anvil ofthe Doctrine of Legitimate Expectation.The not ification
(23.06.2009) besidesbeing legally untenable,would a lso deny the
substantive legitimate expectations, the respondents nurtured,as members
of the government schools in the BSES cadre. The denial is particularly
glaring in the absence of promotional avenues for the respondents to the
controlling/supervisory posts in the administrative wing of the education
department. The respondents, in course of their service as +2 Lecturers,
would reasonablyexpect to occupy the higher position in the department,
depending upon their inter-se seniority in the common seniority list, but
the Government action, restricting movement through artifici al sub-
grouping of +2 Lecturers with teachers of nationalized schools,ha ve
unreasonably belied their expectation. This would su ggest that the
respondents were led up the garden path by the appellants.
32. To understand the legal consequences arising therefrom, useful
reference can be made to R. V. Inland Revenue Commissioners, ex
parte M.F.K. Underwriting Agents Ltd. 9 (1989) where Lord Justice
of Appeal, Thomas Bingham, while invoking fairness as a rationale for
protecting legitimate expectations,expressed the following :-
“If a public authority so conducts itself as to create a legitimate
expectation that a certain course will be followed it would
often be unfair if the authority were permitted to follow a
different course to the detriment of one who entert ained the
expectation, particularly if he acted on it. ... The d octrine of
legitimate expectation is rooted in fairness.”
33. Another facet of denial of legitimate expectati ons is
underscored by theCourt of Appeal of England and Walesin the seminal
case of Coughlan10, where the Court preferred to use abuse of power
9 [1990] 1 W.L.R 1545
10 R v. North and East Devon Health Authority Ex p. Cough lan, [2001] QB 213
1155
as one of the criteria for testing whether a public body could resile from
a prima facie legitimate expectation. In the Court’s opinion, if the
government authority induced an expectation which was sub stantive,
the upsetting of that expectation, through departure from the expected
course of action in the absence of compelling public interest, would be
so unfair, that it would amount to abuse of power. In the present case,
the abuse of power is discernible in the State’s disparate decision in
encadring the +2 lecturers with the teachers of nationalized s chools,
notwithstanding the contrary representation through the 1985 notification
which created the +2 lecturer posts and the 1987 advertisement und er
which, the respondents entered service. Such manifest departure from
the projected course smacks of arbitrariness and the government action,
to selectively protect the interest of the BES cadre, does not conform to
rules of justice and fair play.
34. Taking a cue from above, where the substantive legiti mate
expectation is not ultra vires the power of the authority and the court is
in a position to protect it, the State cannot be allowed to change course
and belie the legitimate expectation of the respondents. As is well known,
Regularity, Predictability, Certainty and Fairness are necessary
concomitants of Government’s action and the Bihar government in our
opinion, failed to keep to their commitment by the impugned decision,
which we find was rightly interdicted by the High Court.
35. Next thing to consider is the plea of the BES Association as
the Intervenor in this proceeding and the submissions made on their
behalf by the learned senior counsel Mr. Vijay Hansaria. On thi s, the
first observation to be made is that the rights of an intervener are
circumscribed. The BES could have arrayed themselves in the H igh
Court but decided at their own peril, to keep away. The Writ Petition of
the respondent was pending for about 6 years in the High Court and
those in the BES, who are holding key positions in th e education
department, could not be oblivious of CWJ Case No. 18793 of 2008 and
other connected matters. As such, within the limited scope available to
them, the intervenors,who were sitting on the fence all along , cannot
now be permitted to plead a new case for the first time before this
Court. Moreover, the Counter Affidavit filed by the State before the
High Court,do not persuade us to lean in favour of the members of the
BES Association.
36. In the earlier rounds, this court in Bihar State Govt. Secondary
School Teachers Assn. Vs. Bihar Education Service Assn. 11and also
11Supra
STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA
[HRISHIKESH ROY , J.]
in the Contempt proceedings flowing therefrom in Bihar State Govt.
Secondary School Teachers Assn. Vs. Ashok Kumar Sinha 12 critically
noted the vigorous attempts by the BES Association in obstructing t he
integration of the BSES with the BES and the unfair conduc t of the
Bihar government in safeguarding the interests of those in the B ES
cadre.Those previous challenges to the merger decision were r ejected
by the Court.As such the BES Association,as the party watchin g from
the wings, cannot be permitted to secure now what they failed to achieve
in the previous litigations.In circumstances like this it needs t o be said
that in an adversarial litigation, the fence sitters cannot be placed at par
with the front runners .
37. In consequence of the foregoing discussion, our finding isthat
the +2 lecturers’ posts were created in the BSES Cadr e.This was
represented in the Notification (13.11.1985), and also in the Advertisement
No. 1/87. The conduct of the Government in providing pay scale parity
with the BSES teachers in the secondary schools, rein forces such
conclusion. These relevant and attending circumstances ec lipse the
implication of the ex-cadre reference in the appointment letters.What is
also discernible is that the encadrement through not ification dated
23.06.2009 has frustrated the legitimate expectations of the respondents
and was undertaken with the unfair aim to block the r espondents’
promotion to key positions, particularly in the administrative wing of the
Education department.Such unfairness in State’s act ion cannot be
countenanced by Court.Resultantly we record our approval with the
reasoning and conclusions in the impugned judgment in favour of the +2
lecturers to the effect that they are indeed the members of the Subordinate
Educational Service and the State Government must treat the +2 lecturers
appointed pursuant to the Advertisement No. 1/87 as members of the
Subordinate Educational Service and all service benefits as the members
of the Subordinate Educational Serviceshould therefore be extended to
them.
38. Accordingly, no good reasons are seen to interfere with the
impugned judgment. The appeals stand dismissed without any order on
costs. However, since the time stipulated by the High Court has expired,
the State is granted 6 months’ time to ensure compliance w ith High
Court’s direction in letter and spirit.
Divya Pandey Appeals dismissed.
(Assisted by : Roopanshi Virang, LCRA)
12Supra