Patna High Court
Ram Milan Mishra & Ors vs State & Ors on 21 May, 2010
Author: Navin Sinha
Bench: Navin Sinha, Dinesh Kumar Singh
CIVIL WRIT JURISDICTION CASE No. 12861 OF 1993
1. RAM MILAN MISHRA, SON OF LATE RAJDHARI MISHRA, PRONNAT
MADHYA VIDYALAYA, NARKATIAGANJ (HINDI), WEST CHAMPARAN AT
BETTIAH
2. NAGESHWAR TEWARY, SON OF LATE SHRI RAM NARAYAN TEWARY,
NATIONALISED MIDDLE SCHOOL, NAWTAN, WEST CHAMPARAN AT
BETTIAH
3. DULARMAN PRASAD, SON OF SHRI RAGHUNATH PRASAD, MIDDLE
SCHOOL, PURANA, ANCHAL YOGAPATTI, WEST CHAMPARAN AT
BETTIAH
4. GOPALJEE PRASAD, SON OF SHRI KAMAL PRASAD, NATIONALISED
MIDDLE SCHOOL, BASAKHWA (SIKTA), WEST CHAMPARAN AT
BETTIAH
5. RAJEHSWAR PRASAD, SON OF SHRI GARBHU MAHTO, NATIONALISED
MIDDLE SCHOOL, JHUMKA, SIKTA, WEST CHAMPARAN AT BETTIAH
6. BINDESHWARI TEWARY, SON OF LATE RAMESHWAR TEWARY,
NATIONALISED MIDDLE SCHOOL, DHANKUTWA, SIKTA, WEST
CHAMPARAN AT BETTIAH
7. SHRIKANT CHOUBEY, SON OF LATE SHRI YAMUNA CHOUBEY,
NATIONALISED MIDDLE SCHOOL, SARISWA BAZAR, WEST
CHAMPARAN AT BETTIAH
8. RAKESH RANJAN, SON OF SHRI SHANKAR PRASAD SINHA, MIDDLE
SCHOOL, CHHABANI, WEST CHAMPARAN AT BETTIAH
9. MD. SABIR, SON OF MD. QUASIM, MIDDLE SCHOOL, BAGHI, P.O.
BAGHI, VIA RAMNAGAR, WEST CHAMPARAN AT BETTIAH
10. BADRUL HASAN QUAF, SON OF LATE MOINUDDIN, MIDDLE SCHOOL,
SABEYA, VIA RAMNAGAR, WEST CHAMPARAN AT BETTIAH
11. BHAWBHUTI RAI SHARMA, SON OF SHRI RAM BACHAN RAI, MIDDLE
SCHOOL, KUJLAHI, NAWTAN, WEST CHAMPARAN AT BETTIAH
12. YOGENDRA RAI, SON OF LATE SAJAWAL RAM, URDU MADHYA
VIDYALAYA, MANSHA TOLA, WEST CHAMPARAN AT BETTIAH
13. VIDYANAND PANDEY, SON OF SHRI PANDIT RAM LOCHAN PANDEY,
MIDDLE SCHOOL, KATHARI, WEST CHAMPARAN AT BETTIAH
14. GOPAL PRASAD, SON OF SHRI RAGHUNANDAN SAH, MIDDLE SCHOOL,
MATHURA, NARKATIAGANJ, WEST CHAMPARAN AT BETTIAH
15. JALESHWAR MISHRA, SON OF SHRI NAWRATAN MISHRA, MIDDLE
SCHOOL, SUGOULI, NARKATIAGANJ, WEST CHAMPARAN AT BETTIAH
16. RATAN RAO, SON OF SHRI SINGHASAN RAO, MIDDLE SCHOOL,
DIULIYA, NARKATIAGANJ, WEST CHAMPARAN AT BETTIAH
17. SAMIULLAH, SON OF ALI HASAN, MIDDLE SCHOOL, BASTHA,
MAINATARH, WEST CHAMPARAN AT BETTIAH
18. MD. JAHIR, SON OF SHRI JAMIR HASAN, MIDDLE SCHOOL, SONKHAR,
RAMNAGAR, WEST CHAMPARAN AT BETTIAH
19. RAJENDRA PANDEY, SON OF SHRI BACHA PANCEY, MIDDLE SCHOOL,
GOBASERA, LORIYA, WEST CHAMPARAN AT BETTIAH
20. SANCHIT RAI SON OF SHRI RAM REKHA RAI, MIDDLE SCHOOL,
GAHERI, NAWTAN, DISTRICT WEST CHAMPARAN AT BETTIAH
2
21. LALAN TEWARY, SON OF SHRI KISHORE NATH TEWARY, MIDDLE
SCHOOL, BELA, HARINAGAR, RAMNAGAR, WEST CHAMPARAN AT
BETTIAH
22. BRIJESH KUMAR TEWARY, SON OF SHRI BHRIGUNATH TEWARY,
PRABHARI, PARWATI GIRLS MIDDLE SCHOOL, RAMNAGAR, WEST
CHAMPARAN AT BETTIAH
23. PANKAJ KUMAR, SON OF LATE BIBHUDEO PRASAD, MIDDLE SCHOOL,
SATWARIYA, LORIYA-2, WEST CHAMPARAN AT BETTIAH
24. UPENDRA NATH VERMA, SON OF SHRI KASHI NATH PRASAD, MIDDLE
SCHOOL, BIRWA, MAJHOLIYA, WEST CHAMPARAN AT BETTIAH
25. RAMDHARI PRASAD, SON OF LATE INDRAJEET PRASAD,
NATIONALISED MAHABIR MADHYA VIDYALAYA, OJHWALIA, BARIA,
WEST CHAMPARAN AT BETTIAH
26. MADHUSUDAN DWIVEDI, SON OF SHRI UMASHANKAR DWIVEDI,
RESIDENT OF NEPALI TOLA, RAM NAGAR, WEST CHAMPARAN AT
BETTIAH
27. SHESHNATH TEWARY, SON OF SHRI TAPESHWAR TEWARY, GIRLS
MIDDLE SCHOOL, CHANPATIYA, WEST CHAMPARAN
------------- PETITIOENRS
Versus
1. THE STATE OF BIHAR THROUGH THE COMMISSIONER, HUMAN
RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR,
VIKASH BHAWAN, NEW SECRETARIAT, PATNA
2. THE DIRECTOR, PRIMARY EDUCATION, DEPARTMENT OF HUMAN
RESOURCES DEVELOPMENT DEPARTMENT, VIKASH BHAWAN, NEW
SECRETARIAT, PATNA
3. THE DISTRICT ESTABLISHMENT COMMITTEE, WEST CHAMPARAN, AT
BETTIAH, THROUGH ITS CHAIRMAN- THE DISTRICT MAGISTRATE,
BETTIAH
4. THE DISTRICT MAGISTRATE, EAST CHAMPARAN, AT BETTIAH
5. THE DISTRICT SUPERINTENDENT OF EDUCATION, EAST CHAMPARAN,
BETTIAH
---------------RESPONDENTS
with
CWJC No.962 of 1994
1. SRINATH YADAV, SON OF LATE AWADH BIHARI YADAV, AT PRESENT
HEADMASTER, MIDDLE SCHOOL JAGELI, P.S. KRITYANAND NAGAR,
DISTRICT PURNEA
2. SHYAM NANDAN PRASAD, SON OF SRI KULDEEP PRASAD, AT PRESENT,
HEADMASTER, MIDDLE SCHOOL, PLUSBARI, P.S.- BAISA, DISTRICT
PURNEA
3. TEJ NARAIN YADAV, SON OF SHRI BHOLA LAL YADAV, AT PRESENT
HEADMASTER ADARSH MIDDLE SCHOOL, PURNEA CITY, P.S.- PURNEA
CITY, DISTRICT- PURNEA
3
4. SUBESH PRASAD CHAUDHARY, SON OF LATE RAJENDRA CHOUDHARY,
AT PRESENT HEADMASTER, M/S BHUTAHA, P.S. BALSISADAK,
DISTRICT- PURNEA
5. BISHNUDEO DAS, SON OF SRI SHREE KRISHNA DAS, AT PRESENT
HEADMASTER M/S KASBA, P.S.- KASBA, DISTRICT PURNEA
6. ANEETA KUMARI, WIFE OF SRI SITARAM PRASAD, AT PRESENT
HEADMASTER GIRLS MIDDLE SCHOOL, KASBA, P.S.- KASBA, DISTRICT
PURNEA
7. KRISHNANAND SINGH, SON OF LATE GORE LAL SINGH YADAV, AT
PRESENT HEADMASTER, ADARSH MIDDLE SCHOOL, MARANGA, P.S.-
MARANGA, DISTRICT PURNEA
8. DHIRENDRA KUMAR SINGH @ DHIRENDRA PRASAD SINGH, SON OF SRI
GANESH PRASAD SINGH, AT PRESENT HEADMASTER, MIDDLE
SCHOOL, KANHARIA, P.S.- KANHARIA, DISTRICT PURNEA
9. ARUN KUMAR SINGH, SON OF LATE KAMLA SINGH, AT PRESENT
HEADMASTER ADARSH MIDDLE SCHOOL,O PARORA, P.S. PARORA,
DISTRICT PURNEA
-------------------(Appellants))
Versus
1. THE STATE OF BIHAR
2. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HUMAN
RESOURCES DEVELOPMENT, BIHAR, VIKASH BHAWAN, PATNA
3. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, VIKASH BHAWAN,
PATNA
4. THE DISTRICT SUPERINTENDENT OF EDUCATION, PURNEA
-----------------------(Respondents)
-----------
For The Petitioner :- Mr. Dr. S.N. Jha, Sr. Advocate &
Mr. Chakrapani, Advocate
For The Petitioner :- BISHNU KANT DUBEY
For The Respondent :- (SC3)
PRESENT
THE HON'BLE MR. JUSTICE NAVIN SINHA
THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH
Navin Sinha, J.The petitioners in both the writ applications are graduate trained teachers in the discipline of Arts and Science at Elementary Schools, located in the Districts of West Champaran and Purnia respectively. 4 Primary arguments have been made in C.W.J.C. No. 12861 of 1993 and adopted in the latter.
A notification was issued by the State Government on 18.12.1984, by which teachers in Elementary Schools were categorized as Matric trained, Intermediate trained and Graduate trained, on basis of which qualifications their pay scales were fixed. The post of Headmaster in the Elementary Schools was to be filled only by graduate trained teachers. In the year 1986, 1200 posts of Headmaster for Elementary Schools in the State were created. 56 posts of headmaster in the Elementary Schools were available for appointment from amongst graduate trained teachers in the District of West Champaran. While graduate trained Headmaster posts in Elementary Schools sanctioned in other Districts were filled up, those in West Champaran and Purnia remained vacant on account of non-meeting of the establishment committee. In 1988 the seniority list of graduate trained teachers of Elementary Schools in West Champaran was prepared and approved, but no development for appointment of Headmaster took place.
Aggrieved by the seniority list, the Arts teachers association preferred C.W.J.C. No. 5259 of 1987. This writ petition related to the issue of inter se seniority between graduate trained teachers and 5 whether priority was to be given to Arts or Science graduate trained teachers. It had no nexus with the issue of appointment of graduate trained only as headmaster of Elementary School.
On 30.1.1990 the establishment committee in West Champaran took a decision to fill up the post of Headmaster from graduate trained Arts and Science teachers in Elementary School in accordance with the reservation roster. On 14.5.1992 C.W.J.C. No. 5259 of 1987 was dismissed for non-prosecution. On 20.1.1993 C.W.J.C. No. 408 of 1990 preferred by other graduate trained teachers of West Champaran directed to be heard with C.W.J.C. No. 5259 of 1987 was also dismissed. The perceived impediment, if any, for considering the case of graduate trained teachers to the post of Headmaster in Elementary Schools, located in West Champaran stood removed.
Statutory Rules were then framed under the proviso to Article 309 of the Constitution dated 8.7.1993 called the Bihar taken over Elementary School Teachers Promotion Rules, 1993 (hereinafter called the promotion Rules 1993) . It stated that consequent to the implementation of central pay scale with effect from 1.1.1986 it had become necessary to frame Promotion Rules 1993 for promotion of teachers of Elementary 6 Schools taken over by the Government. The Promotion Rules 1993 provided that the post of Headmaster would be filled up only by those having the qualification of post graduate trained in lieu of the earlier graduate trained qualification. The Promotion Rules 1993 were made effective retrospectively from 1.1.1986. This has led to the petitioners challenging the vires of the Rules as it debars them from consideration for promotion to the post of Headmaster in Elementary Schools as they do not possess post graduate qualification.
Learned senior counsel, Dr. Sadanand Jha, appearing for the petitioners in C.W.J.C. No. 12861 of 1993 submitted that the petitioners had a right to be considered for promotion to the post of Headmaster of Elementary Schools in accordance with the Promotion Rules as they existed in 1984, when vacancies were notified in 1986. In fact, such promotions were given in other Districts. Failure of the establishment committee to meet cannot defeat the right of the petitioners to be considered in accordance with the aforesaid Rules. The promotion granted to others under the existing Rules while denying the same consideration to the petitioners offends Article 14 of the Constitution of India. C.W.J.C. No. 5259 of 1987 and C.W.J.C. No. 408 of 1980 did not foreclose consideration for promotion. No justification 7 whatsoever has been put forth by the respondents for not holding establishment committee meeting despite the decision taken on 30.1.1990 to fill up the post of Headmaster in Elementary Schools from graduate trained teachers, according to roster. The arbitrary delay in such consideration permitting promulgation of the Promotion Rules 1993 on 8.7.1993 with retrospective effect from 1.1.1986 is of no avail to the respondents as the case of the petitioners have to be considered in accordance with the Rules as they existed on the date of eligibility for consideration.
That such an accrued right for consideration was a benefit, a vested right which could not be taken away retrospectively to the disadvantage of the petitioners considering that they were public employees. The amendment under Article 309 was brought in lieu of the implementation of central pay scale. Headmasters in either Basic Schools, Elementary Schools or Secondary Schools constituted a class and there could be no discrimination in the qualifications for their appointment. While the qualification for appointment as Headmaster in the Basic Schools and Secondary Schools remained graduate trained, only Elementary Schools were singled out for post graduate trained qualification. As a result, the post of Headmaster in 8 Elementary Schools which carried a lower pay scale of Rs.2000-3500/- required a post-graduate qualification and the post of Headmaster in a Secondary School which carried a higher pay scale of Rs. 3000- 45000/- stipulated a graduate trained qualification.
In any event of the matter, if denial of consideration was on account of pendency of the present writ petition, it is settled law that the act of Court can prejudice none. If the writ petition remained pending before this Court for 17 years, the petitioners cannot be allowed to be prejudiced.
Reliance was placed on A.I.R. 1958 Sc 956 (IN RE THE KERALA EDUCATION BILL, 1957) at paragraph-15 to urge that there had to be reasonable basis for classification between Headmasters of Elementary Schools and Secondary Schools prescribing different qualifications for appointment. Reliance was next placed on A.I.R. 1984 SC 161 (STATE OF GUJRAT AND ANOTHER VERSUS RAMAN LAL KESAV LAL SONI & OTHERS) at paragraphs- 51 and 52 to urge that vested fundamental rights cannot be taken away with retrospective effect. Relying on A.I.R. 1990 SC 405 (P. MAHENDRAN AND OTHERS VERSUS STATE OF KARNATAKA AND OTHERS) at paragraph-5 it was urged that the selection had to be done in accordance 9 with the 1984 Rules. Lastly reliance was placed on A.I.R. 1994 SC 55 (K. NARAYANAN AND OTHERS VERSUS STATE OF KARNATAKA AND OTHERS) at paragraphs- 5, 6 and 7 to urge that the Promotion Rules 1993 were arbitrary, violative of equality clause and the nature of retrospectivity given was grossly unfair and artificial unsustainable in law.
Learned senior counsel Dr. Jha, lastly submitted that had the qualification of post-graduate trained also been made the eligibility criteria for appointment of Headmaster in Secondary School in which event different issues may have arisen for consideration.
No counter affidavit has been filed by the respondents even seventeen years later. Learned senior counsel, Sri Anil Jha, appearing for the State submitted that it was only a vested and accrued right which could be claimed to be protected from retrospectivity. Promotion was not a vested right. An employee had only a right to be considered for promotion. It was next contended that the re-fixation of eligibility for appointment to the post of Headmaster in Elementary Schools was necessitated on account of the grant of central pay scale. The challenge had been laid out by the teachers of two Districts only. In the past 17 years 10 when the writ petitions before the Court remained pending, many appointments on the post of Headmaster may have been made on basis of post graduate qualification and such persons have not been made parties to the writ application. The passage of 17 years was a considerable long period and on grounds of equity this Court should not interfere in the matter. Even if interference were to be made it has to be prospective and no relief can be granted to the petitioners. There were no specific pleadings challenging the vires of the Rules.
The right of the petitioners to be considered for promotion and in that context the challenge to the vires of the Promotion Rules, 1993 is one aspect of the matter. The other is the vires of the Rule itself.
There exists no right to promotion. An employee has only a right to be considered for promotion. Promotion is therefore an inchoate right which may or may not fructify. Such a inchoate right cannot be termed as a vested or accrued right, so as to vitiate the Promotion Rules 1993 simplicitor. If pending consideration or before consideration the Promotion Rules are changed, the employee cannot urge that his vested right to be considered for promotion has been varied to his prejudice and that he has a right to be 11 considered for promotion under the old Rules.
In the case of High Court of Delhi and Another Versus A.K. Mahajan, A.I.R. 2009, SC 2497, the Apex Court was considering a challenge to a retrospective amendment of the Promotion Rules affecting rights of consideration already commenced before amendment. The Court at paragraphs 21 and 23 held as follows:-
"21. Further, if this was the situation found by the High Court that the Rule could not be changed by amendment, the High Court could have and should have found fault with the whole amendment, not only the retrospectivity aspect thereof. But that has not happened. The High Court has not invalidated the amendments, creating three seniority lists for the three categories and introducing the principle of rotational promotion. It has only found fault with the retrospectivity. We have already pointed out that the retrospective effect given to the amendments was after consideration of material statistics. Further, the date fixed was also relevant, as it was immediately after the last promotion was effected. We, therefore, find no fault with the retrospective aspect and in our opinion, the High Court has wrongly found fault with the retrospective aspect on the incorrect logic that the amendments affected any absolute vested or accrued rights of being considered. There is no such absolute accrued or vested right of consideration, which could not be affected by the retrospective amendments. The only condition is that such retrospective amendments should be constitutionally valid.
23. In short, law regarding the retrospectivity or retroactive operation regarding the Rules of selection is that 12 where such amended Rules affect the benefit already given, then alone such Rules would not be permissible to the extent of retrospectivity."
This Court, therefore, finds it difficult to strike down the vires of the Promotion Rules, 1993 on that ground.
Legislation can be class specific.
Discrimination cannot be alleged vis-à-vis those not falling in that class. But there shall have to be rationale for such classification and a nexus between such class legislation and the object to be achieved. If, there is no nexus or rational classification, such class legislation may be hit by Articles 14 and 16 of the Constitution of India, making the class legislation arbitrary.
Had the Promotion Rules, 1993 put at par Headmasters of Basic Schools, Elementary Schools and Secondary Schools with regard to qualifications, matters would have been entirely different. Even, if Basic School teachers, keeping in mind, that they were teaching students of below Class-V, formed a class by themselves had been left out, that would still leave Headmasters of Elementary Schools and Secondary Schools, who taught Class- V to VIII and IX to XII respectively. There could not be higher qualification of Elementary School Headmasters, 13 of post-graduation catering to Class-V to VIII students and a lower graduate trained classification for Headmasters catering to the higher classes of IX to XII in the Secondary School. The latter had a higher pay scale of Rs. 3,000-4500/-, but a lower qualification of graduate trained for appointment. The former had a pay scale of Rs.2,000-3500/- but with a higher post graduation qualifications for appointment as a Headmasters. If grant of central pay scales had been the criteria, surely it gave a higher scale to Secondary School Headmasters also requiring revision of their qualification for appointment. To single out Headmaster of Elementary Schools only for post graduate qualification does not appear to be reasonable having any rationale for classification and nexus with the grant of higher pay scales alone to them.
(IN RE THE KERALA EDUCATION BILL, 1957,relied upon by the petitioners, it has been held at paragraph-15 as follows:-
"15. ................. The true meaning, scope and effect of Article 14 of out constitution have been the subject matter of discussion and decision in a number of cases beginning with the case of Charanjit Lal Versus Union of India 1950 SCR 869 : (AIR 1951 SC 41) .......... The position was once again summarized in the still more recent case of Mohd. Hanif Qureshi Versus State of Bihar (supra) A.I.R. 1958 SC 731.14
The meaning, scope and effect of Art. 14, which is the equal protection clause in our Constitution, has been explained by this Court in a series of decision in cases beginning with Charanjit Lal v. Union of India (I) (supra) and ending with the recent case of Ram Krishna Dalmia v. Justice S. R. Tendolkar (K) (supra). It is now well established that while Art. 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (I) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and
(ii) such differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification, it has been held, may be founded on different bases, namely, geographical, or according to objects or the occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration." The reliance on the case of Raman Lal Keshav Lal Soni (supra) on behalf of the petitioners appears misplaced. It was a case of a vested right acquired as a Government servant until the post was not abolished or service terminated in accordance with law. Retrospective legislation singling them out was held to be violative of the Article 14 of the Constitution of India after they had joined the common stream of service 15 performing the same duties creating an artificial situation by which erstwhile municipal employee never become members of a State service. In that context, it was held "can a law be made to disturb todays accrued constitutional rights by artificial reverting to a situation which existed 17 years ago ? no".
Such is not the case presently. We have already held that promotion is not a vested constitutional right.
The Promotion Rules, 1993 having specifically been made retrospective in its operation and there being only a right to be considered for promotion, the case of (P. MAHENDRAN AND OTHERS VERSUS STATE OF KARNATAKA AND OTHERS) relied upon has no application to the facts of the present case. In any event of the matter the process of consideration had also not commenced in the facts of the present case.
Nothing has been urged before us on behalf of the State for the need to frame such Promotion Rules in 1993 with effect from 1.1.1986. Not a semblance of a contention to justify the rationale for such classification singling out Elementary School teachers only for the higher qualification and the nexus with the object to be achieved has been urged before us. If central pay scale was the justification Elementary School Headmaster 16 could not be singled out arbitrarily for no rhyme or reason. The petitioners have rightly relied upon the case of K. NARAYANAN AND OTHERS VERSUS STATE OF KARNATAKA AND OTHERS (supra) holding at paragraphs 5, 6 and 7 as follows:-
"5. A policy decision taken by the Government is not liable to interference, unless the Court is satisfied that the rule making authority has acted arbitrarily or in violation of the fundamental right guaranteed under Arts. 14 and 16.....The methodology adopted in the rules by transferring such a person and placing him in the category of direct recruits from the date of acquiring the degree the Government in our opinion violated the basic norms of appointment and recruitment to any particular service. The Government may appoint all the Junior Engineers en bloc after framing of the rule and place them below all those who were working as Assistant Engineers on that date but they cannot be so appointed as to get precedence over those who are working from before. It would result in artificially making unequals as equals. Any person entering the service can justly feel secure of equality in continuance, promotion etc. Any executive action violating it cannot upheld. Seniority is an incident of service which cannot be eroded or curtailed by a rule which operates discriminately. The purpose of opening evening classes and permitting diploma holders to study was to improve efficiency in service and provide better service conditions. When rules were framed and provision for appointment by transfer was made both these objectives were achieved. But operation of the rule with retrospective effect has no nexus with either except that it may result in undue benefit to one class of employees over the other.
6. Art. 309 of the Constitution 17 empowers appropriate legislature to frame rules to regulate recruitment to public services and the post. 'Recruitment' according to dictionary means 'enlist'. It is comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well known methods of recruitment. Even appointment by transfer is not unknown. But any rule framed is subject to other provisions of the Constitution. Therefore it has to be tested on rule of equality. Transfer is normally resorted in same cadre. But when it is made in a different and higher cadre it must not be violative of constitutional guarantee and the rule of fairness. Providing for appointment of a diploma holder from the cadre of Junior Engineer to Assistant Engineer from back date without any test or selection on eligibility only does not sound reasonable and fair. Why was it done is apparent from the following notings by the Secretary,
7. Rules operate prospectively. Retrospectivity is exception. Even where the Statutes permits framing of rule with retrospective effect the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. The rule making authority should not be permitted normally to act in the past......The retrospective operation of the impugned rule attempts to disturb a system which has been existing for more than twenty years. And that too without any rationale. Absence of nexus apart no rule can be made retrospectively to operate unjustly and unfairly against other. In our opinion the retrospective operation of the rule with effect from 1st January, 1976 is discriminatory and violative of Arts. 14 and 16"18
After hearing concluded on 17.5.2010 and judgment was reserved learned senior counsel for the State mentioned that he desired to address the Court further. We allowed the prayer. He has cited before us a Full Bench decision of this Court in L.P.A. No. 985 of 1996 and analogous cases disposed on 21.4.2009 to contend that this Court has already upheld the vires of the Promotion Rules 1993. We have gone through the judgment. The issue involved before the Full Bench was whether Science teachers and Arts teacher in Elementary Schools belonged to one cadre and whether a joint gradation list was to be prepared. The vires of the Promotion Rules 1993 was not challenged in any of the writ petitions as noticed in paragraph 7 of the judgment. A stray line that the Promotion Rules 1993 were not unconstitutional is not the ratio of the decision but simply an obiter. A judgment is an authority for what is actually decided therein and not what may be logically deduced by reading lines drawn out of context. The vires of the rule not being under challenge, the reliance by the State counsel is completely out of context and misconceived. The Supreme Court in A.I.R.2007 SC 3180, M/s GIRNAR TRADERS VERSUS STATE OF MAHARASHTRA & OTHERS in the relevant extract of paragraph 27 has observed as follows : 19
"27 .............. Similarly, in Director of Settlements, A.P. and Others v. M.R. Apparao and Another, (2002) 4 SCC 638, a Bench comprising of three Judges, has observed:
"7. ...But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence......... A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision..."
This Court in Shin-Etsu Chemical Co.
Ltd. v. Aksh Optifibre Ltd. and Another, (2005) 7 SCC 234, has observed: 2005 AIR SCW 4384, Para 78 "69. ...if the court thinks that an issue does not arise, then any observation made with regard to such an issue would be purely obiter dictum. It is a well-settled proposition that the ratio decidendi of a case is the principle of law that decided the dispute in the facts of the case and, therefore, a decision cannot be relied upon in support of a proposition that it did not decide. [See also: Mittal Engg. Works (P) Ltd. v. CCE, (1997) 1 SCC 203 at p.
207 (para. 8); Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 at p. 560 (para. 17); Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197 at p. 206 (para. 23).]..."
We, therefore, hold that the Promotion Rules 20 of 1993 are ultra vires Articles 14 and 16 of the Constitution of India on the ground that they suffer from the vice of arbitrariness having no rationale for such classification of Elementary School teachers alone requiring a higher post graduate trained qualification. There also is no nexus with the classification made of a higher post graduate qualification for Elementary Schools Headmaster only. There does not appear to be any rationale justification or nexus in fixing a higher qualification for them with a lower pay scale and a lower qualification with higher pay scale for Secondary School Headmasters to be graduate trained only. We there strike down the Promotion Rules of 1993 as being violative of the Constitution of India.
We are conscious that several persons may have been promoted since 1993 and may have also retired or may be in service. We do not wish to undo or disturb all that may have happened and promotions granted. The petitioners have very fairly conceded that would not like to unsettle those who may have been promoted and may have retired also. Several of the petitioners are also stated to have retired and some of them are in service.
There can be no doubt that the petitioners have been wronged under statute which has now been 21 held to be ultra vires. We, therefore, direct the cases of the present writ petitioners only to be considered for promotion to the post of Headmaster in Elementary Schools under the notification dated 18.12.1984, in pursuance of the vacancies created in the year 1986. We purposefully restrict the operation of this order to those who have been vigilant for the protection of their rights. We do not wish to open a Pandora's box with claims for promotion.
The gradation list of Elementary School Headmasters was already prepared in 1988. The petitioners are required to be considered for promotion notionally. Those who have retired, shall pose no difficulty as they will be only notionally fitted into their seniority position and their pension revised accordingly. We are not inclined to grant them consequential monetary benefits, on the principle of no work no pay and the financial burden that it may impose on the State. Insofar as those who are in service are concerned, the petitioners have very fairly stated that they would be satisfied, if they are promoted notionally and are fixed below the last person promoted under the Promotion Rules of 1993, subject to availability of vacancies. We similarly hold that they shall not be entitled to consequential monetary benefits except notional and in 22 the event they are deprived of their promotions while in service due to lack of vacancy, they shall nonetheless be entitled to revision of their pension accordingly.
The writ petition stands allowed to the extent indicated.
(Navin Sinha, J.) I agree (Dinesh Kumar Singh, J.) (Dinesh Kumar Singh, J.) Patna High Court, Dated 21.05.2010 N.A.F.R. P.K.