TaxTMI 
TaxTMI 
2012 (11) TMI 1080
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....mittee were as follows:- "To hasten the avenues for promotion in the Bihar Civil Services, the government has approved junior selection grade 20%, senior selection grade 12.50% and posts of senior Deputy Collector 2.5%. The same percentage has been applied for junior selection grade and senior selection grade in the Bihar Engineering Service. On this basis, requests have been coming from various state services associations that due to lack of opportunity for promotion in their cadres, there is stagnation, which must be removed. 1.2 Hence, keeping in view the strength and present promotional avenues in various State service cadres, to analyse the problem of stagnation and to recommend means to tackle this problem and promotional opportunities, a committee of the following officers is constituted:- 1) Member, Board of Revenue-Chairman 2) Chairman, Public Grievances Bureau- Member 3) Finance Commissioner- Member" 4. The committee drew its conclusions on the basis of the facts and figures furnished by various departments. As stated in the report, the approach of the committee was to find out:- (a) what relatively, is the extent of stagnation in different services, and the presen....
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....ubsequently published in the Gazette Extra-Ordinary on 27.4.1977. The decision with respect to the recommendations was contained in Schedule-1 of the notification. As far as the education department and the miscellaneous cadre are concerned, the decision notified reads as follows:- Schedule-1 (emphasis supplied) First round of litigation 7. It is the case of the petitioner Secondary School Teachers Association that, though this notification was issued by the State Government on 11.4.1977, the State Government took no steps to implement the same. They represented for its implementation from time to time, but that was without any effect. They learnt that one provisional gradation list was prepared in the year 1986, but it was never circulated or made known to the Petitioner association. Another gradation list was prepared in 1995, and they found that the same had left out the members of the Petitioner association. Two representations were once again made, including one on 25.5.1998, but that was also without any effect. Therefore, they were constrained to file the Writ Petition, bearing No.12122 of 1998, against the State of Bihar and the concerned officers. In this petition they ....
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....vernment decision contained in Resolution dated 11.4.1977 so far it relates to the Education Service of the Education Department." 10. The State of Bihar felt aggrieved by this common order passed in the two Writ Petitions, and therefore filed two Letters Patent Appeals No.980 and 998 of 2000. The State Government contended that there was no proposal to merge the sub-ordinate teachers into the Bihar Education Service Class-II. It was further pointed out that 50% posts of Bihar Education Service Class-II were filled by the promotion of the subordinate teachers. This was however, denied by the appellants herein by pointing out that factually however, hardly any such promotions had taken place. They also pointed out that the notification dated 11.4.1977 had been implemented in other services in the manner in which they were canvassing. The Division Bench dismissed these two appeals by order dated 27.11.2000, wherein it observed:- "In our view, since this court by order dated 2.2.2000 has specifically directed the Government to take a decision in terms of the resolution dated 11.4.1977, there appears no reason for the State to be aggrieved by such order." 11. The State Government ca....
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....s, and hence the confusion arose. He further stated that the Government had, therefore, decided to locate those 59 posts by an advertisement and call for information. In para 6/A of the second affidavit, however, he stated that there was no mention of any merger in the notification. 15. The learned Single Judge who heard the petition referred to the earlier orders up to the Supreme Court, and then observed that, in view thereof, the matter should have attained finality. He further observed that it was really unfortunate that the state had again started giving its own different meaning to interpret the aforesaid orders, rather going to the extent of even stating that some shadow-boxing had been done in the High Court and the Supreme Court, to obtain certain orders. He stated that it appeared from the notings on the files of the State Government that the Education Department had, in fact, taken a decision to implement the aforesaid notification, and prepared a draft notification for the approval of the Finance Department, so that the orders of the High Court, for implementing the notification of 11.4.1977, are complied with. He also recorded that the said draft notification speaks o....
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....efore passing this order. However, in the meanwhile Division Bench had also passed an order dated 27.1.2003 directing the Chief Secretary, Government of Bihar and Director Administration of Bihar to remain present in the appeal to explain the non-implementation. 18. These two orders led the State Government to file Civil Appeal No.4466/2003, wherein the earlier grounds were reiterated. A counter was filed on behalf of Janardhan Rai & Ors. by the Gen. Secy. Of the Bihar State Government Secondary School Teachers Association which had been impleaded as a respondent by an order passed by this Court. Therein it was specifically stated in paragraph 13 as follows:- "...... Thus, since the members of the Respondent Association belonged to a clearly identifiable cadre known as "B.S.E.S Cadre" and were not part of any isolated post and also since their posts were not declared "Gazetted"-then, they clearly fell within the purview of those State services covered by the Saran Singh Committee. It is also relevant to mention here that the term "State Service" used by the Petitioners has not been defined anywhere. This is evident from the Fitment Committee report, Government of Bihar published ....
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.... of the contempt petition. Hence, we feel that it is not necessary for us to interfere in the matter, particularly since our attention has been drawn to the statements made on the floor of the legislative assembly that the Government itself is thinking of implementing the Resolution in the manner that is being suggested by the Respondents. In any event, since the contempt petition is pending, the High Court will examine the matter and, if satisfied that the Resolution has not been implemented, deal with the contemnors according to law. In this view of the matter, we do not think that it is necessary for us to interfere at all. Civil Appeal is dismissed. No order as to costs. Stay of the contempt proceedings is vacated forthwith. ..........................J. (B.N. Srikrishna) ..................................J. (Lokeshwar Singh Panta) New Delhi April 19, 2006" 19. It appears that in view of this judgment of this Court in the second round of litigation, the State Government ultimately moved to take the decision as canvassed by the subordinate teachers. The Cabinet took the necessary decision on 3.7.2006. The memorandum prepared by the administration for the consideration of the....
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....solution was issued under the order of the Governor of Bihar on 7.7.2006, stating that the teachers of the Subordinate Education Service (Teaching Branch) male and female cadre, are merged into Bihar Education Service Class II w.e.f. 1.1.1977, in accordance with the Finance Department Notification dated 11.4.1977, and that appropriate orders will follow after evaluating personal benefits arising out of the order. A notification was also subsequently issued on 9.10.2006 giving effect to the above resolution with respect to three teachers mentioned specifically in that notification. Third round of litigation 21. Now, it was the turn of the Bihar Education Service to file their Writ Petition bearing CWJC No.10091/2006, wherein, they challenged the Government resolution dated 7.7.2006 providing for the merger of the Bihar Subordinate Education Service into the Bihar Education Service Class- II. It was contended that the Bihar Subordinate Education Service, to which the secondary teachers belonged was quite different from the Bihar Education Service Class-II. This was on the footing that their modes of recruitment and minimum qualifications were different. It was submitted that the me....
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....tion No.1209 dated 7.7.2006 (which had merged the teachers of subordinate services into Bihar Education Service Class-II), and withdrawing the financial benefits flowing therefrom. 25. Some of the individual teachers who felt aggrieved by this judgment and order dated 31.10.2007, filed LPAs Nos.941/2007, 946/2007, 947/2007 and 974/2007. As far as the Secondary School Teachers Association is concerned it directly filed an SLP to this Court against the order dated 31.10.2007, bearing SLP No.8031/2008, but this Court vide its order dated 16.3.2009 noted that those individual LPAs were pending before the High Court, and therefore granted liberty to the association to approach the High Court by way of LPA. Accordingly, the petitioner association filed LPA No.418/2009. All those LPAs were heard together. 26. The appellant association as well as the Bihar Education Service Association reiterated their positions before the Division Bench. The appellant association principally contented that after the decision of the Supreme Court dated 19.4.2006, it was not permissible for the learned Single Judge to re-open the entire controversy, otherwise there would never be any finality. The decisio....
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....ch is the third occasion when this controversy is coming up to this Court. 29. When the Special Leave Petitions leading to these appeals came up for consideration, initially a notice was issued on 7.3.2011, and lateron after hearing the counsel for respondents, the operation of the judgment and orders passed by the learned Single Judge as well as by the Division Bench came to be stayed by an order passed on 4.7.2011. The State of Bihar has now moved IA Nos. 19-20 of 2011 to vacate the order of stay. The appellants on the other hand have contended that in view of the stay granted by this Court, the State of Bihar and its officers are expected to take steps to implement the Resolution dated 7.7.2006, and since that was not being done they have filed the Contempt Petition (Civil) No.386-387 of 2011 against the Chief Secretary of the Govt. of Bihar and its other officers. The Civil Appeals, the I.A for vacating the stay order and the Contempt Petitions have been heard, and are being decided together. Shri Patwalia, learned Senior Counsel has appeared for the appellants, Shri Nagendra Rai, learned Senior Counsel has appeared for the State of Bihar and its officers, and learned counsel ....
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....fect their seniority retrospectively. In their submission, the State Govt. notification of 11.4.1977 has basically to be read in the light of the Saran Singh Committee report, which according to them did not extend the recommendations to the cadre of the subordinate teachers. Mr. Akhilesh Kumar Pandey learned counsel, appearing for them, therefore submitted that the SLPs should be dismissed. 32. On behalf of the State of Bihar submissions were advanced by Mr. Nagendra Rai, learned senior counsel. He submitted that the notification passed by the State Govt. on 11.4.1977 ought to be read as confined to the Saran Singh Committee report only. There was no merger contemplated in the Govt. notification, and the order of this Court dated 19.4.2006 should not be read as confined only to the hearing of the Contempt Petition by the High Court. He submitted that the subordinate service employees have otherwise also prospects of promotions under their service rules. The Saran Singh Committee Report was only for the employees of the State Service and the subordinate service did not form part of the State Service. The report was meant for only those who did not have scope for promotion in the S....
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....y 59 posts. Notings on the files of the Govt. clearly showed that the Education Department had understood that for the implementation of the notification, the merger of the two cadres was necessary, and had for that purpose prepared a draft resolution for the approval of the Finance Department. In view of this factual scenario, and also in view of the previous orders, the learned single judge allowed the CWJC No.8679/2002, and passed the order directing the steps for merger of the subordinate teachers into the Bihar Education Service. The appeal of State of Bihar was also dismissed by the Division Bench by observing that the controversy had already attained finality with the orders of the Supreme Court. 35. The order passed by this Court, thereafter, in the Civil Appeal filed by the State Govt. bearing No.4466 of 2003 dated 19.4.2006 has to be read on this background. In the very first para this Court has recorded that the non-implementation of the notification passed in 1977 for such a long time had shocked its conscience. In the second paragraph, the Court has recorded the submissions of the rival parties. In the third para, the Court specifically recorded that the writ petition....
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....ppellants preferred their LPA, the State Government continued to maintain its changed position. To say the least this was not expected from the State Government. Unfortunately enough, the Division Bench also approved this re-opening of the controversy once again. 38. In the present appeals we are concerned with the legality of the Govt. Resolution dated 7.7.2006 which the State Govt. defended before the single judge but gave up the defence in the appeal before the Division Bench. The State Govt. went to the extent of contending that the decision in CWJC No.8679/2002 could not be treated as binding, although it had been confirmed by Division Bench and by this Court. Unfortunately enough we must record that the Division Bench also failed to interfere with this digression on the part of the State Govt. and the learned Single Judge. The Division Bench ignored that, assuming that perhaps two views could be canvassed earlier while interpreting the notification dated 11.4.1977, the order dated 19.4.2006 passed by this Court at the end of the second round of these proceedings left no ambiguity whatsoever, and the State Govt. was expected to follow and honour the same. The State Govt. did ....
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....tituted to go into this very issue. As can be seen from the report of the committee, the various service associations in the State were clamouring for appropriate provision for promotion on par with the Bihar Engineering Service. It is true that the report of the committee does refer to the 59 posts in the miscellaneous cadre while examining the problem. However, after directing the shifting of the engineers in the Education Department to the Public Works Department, and the doctors to the Health Services in sub-clause (1) and (2) of para 11.10, the committee recommended in sub-clause (3) that "the remaining posts should be included in the general cadre and manned by officers of Bihar Education Service as far as possible". The notification issued by the State Govt. on 11.4.1977 approved the recommendation of the committee, but the wording used while approving the recommendation is bit different. 41. It cannot be disputed that it was for the State Govt. to take appropriate decision on the recommendation. The recommendations made by the committee will of course have to be seen as the material placed before the Govt. However, ultimately, it is the decision of the Govt. which is relev....
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....ther than those classified as Class-I and Class-II State Services are mentioned at Item 119 in Appendix-16 of the Bihar Service Code, 1952. Thus, there is no merit in this objection as well. 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, had no business to re-open the entire controversy, even otherwise. The State Govt. had already passed a resolution dated 7.7.2006 after the order of this Court dated 19.4.2006. While examining the legality of that resolution (which was defended by the State Govt. at this stage before the learned Single Judge) the entire controversy was once again gone into. The law of finality of decisions which is enshrined in the principle of res-judicata or principles analogous thereto, does not permit any such re-examination, and the learned Judge clearly failed to recognize the same. 45. For the reasons stated above, these appeals (arising out of SLP Nos.26675-76 of 2010) are allowed. The judgment and order passed by the Division Bench of Patna High Court in LPA No.418/2009 ....