TaxTMI 
TaxTMI 
2022 (5) TMI 1703
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....ment 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 the writ petitioners and declared that the +2 lecturers, both in the Government 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 found 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 the relevant background and the previous litigation rounds which led to the present proceedings. BA....
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....Teachers Assn. Vs. Bihar Education Service Assn.,(2012) 13 SCC 33]. Consequently, the initial government decision (07.07.2006), by which the cadre of the BSES teachers (teaching branch) was merged with the BES, stood restored and the State was directed to act accordingly. 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 merger of the two cadres. Ultimately, contempt proceedings were initiated by the disgruntled members of the BSES in Bihar State Government Secondary School Teachers Association Vs. Ashok Kumar Sinha [(2014) 7 SCC 416], wherein this court had the occasion to observe that the Bihar Education Service Rules, 2014 were in the teeth of the judgment rendered on 23.11.2012 [Supra]. Thi....
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....dvertisement, 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 prescribed 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 basis. These temporary appointments were continued for succeeding academic years under various government notifications, issued from time to time. 13. The main cause for the present litigation is that while implementing the....
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....While opining in favour of the present respondents, the Court relied upon the earlier 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 lecturers 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 the 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 State of Bihar that the appointment letters specifically mention that the +2 Lecturers ....
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....ate 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 way out. 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 created 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 subsequent 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 granted fortuitous appointment in either the government or the nationalized 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 Justi....
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....ing the post to be of ex-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 aspect therefore appears to be correct in his submission that the reference to ex-cadre 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 our view, 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 existed 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 h....
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....y 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 but rejected. 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 to the pay scale offered to the + 2 lecturers. Furthermore, the academic qualifications specified therein for + 2 Lecturers was Post Graduation in 2nd 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 from BES, despite rendering continuous services in the same government secondary schools as teacher members of the BSES, has led to a discriminatory situation, wherein, the BSES teachers who are junior (in terms of education qualifications and pay scale) to the respondents 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....
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....vernment to amend Rules to expand 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 of the Doctrine of Legitimate Expectation. The notification (23.06.2009) besides being legally untenable, would also 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 reasonably expect to occupy the higher position in the department, depending upon their inter-se seniority in the common seniority list, but the Government action, restricting move....
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....he 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 this, the first observation to be made is that the rights of an intervener are circumscribed. The BES could have arrayed themselves in the High 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 the 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....