Sri Madneshwar Narayan Yadav vs Bihar Education Service Asso.& on 21 May, 2010

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Patna High Court - Orders

Sri Madneshwar Narayan Yadav vs Bihar Education Service Asso.& on 21 May, 2010

12. It has to be kept in mind that before the commencement of the hearing in CWJC No. 8679 of 2002, the State Government in order to satisfy this Court that the resolution of the Finance Department dated 11.4.1977 was not at all meant for the members of SES had produced a notice published in the newspaper on 17.9.2002 that the said resolution so far it related to the Education Department for 59 isolated posts of BES working in the miscellaneous cadre such as teachers, engineers, doctors, stadium manager etc. as they had no fixed line of promotion and they be accordingly absorbed in the general cadre of BES. For the sake of clarity, the said newspaper notice is reproduced hereinbelow:-

^^fcgkj ljdkj ls- izk- ,oa o;Ld f'k{kk foHkkx lafpdk la[;k&2@,e 7&48@99 lwpuk ekuuh; mPp U;k;ky; }kjk lh- MCY;w- ts- lh- la[;k 12122@98 ,oa 8147@99 esa fnukad 2-2-2000 dks ikfjr vkns'k] ,y-ih-,- 980&998@2000 esa fnukad 27-11-2000 dks ikfjr vkns'k ,oa ekuuh; loksZPp U;k;ky; ds ,l-,y-ih- la[;k 4973&4938@2001 esa fnukad 16-4-2001 dks ikfjr vkns'kkuqlkj for foHkkx ds ladYi la[;k 3521] fnukad 11-4-77 dks dk;kZfUor djuk gSA ;g ladYi 'kj.k flag lfefr dh vuq'kalkvksa dks ykxw djus ds fufer fuxZr gqvk gSA 'kj.k flag lfefr us izfrosfnr fd;k Fkk fd fcgkj f'k{kk lsok ds fofo/k laoxZ ds vUrxZr f'k{kdksa ¼usrjgkV 43 fo|ky; NksM+dj½ vfHk;arkvksa] fpfdRldksa rFkk LVsfM;e eSaustj vkfn ds 59 vkblksysVsM (Isolated) inksa ds fy, izksUufr dk fuf'pr volj ugha gSA blfy, bu inksa esa ls f'k{kdksa ds ,dy inksa dks fcgkj f'k{kk lsok ds lkekU; loaxZ esa lfEefyr dj fy;k tk;A bl foKfIr }kjk 'kj.k flag lfefr dh vuq'aklk esa of.kZr fcgkj f'k{kk lsok ds fofo/k laoxZ ds f'k{kdksa ¼usrjgkV fo|ky; NksM+dj½ ds ,dy in/kkjdksa ls nkok] lk{; lfgr vkeaf=r fd;k tkrk gS] ftudk fcgkj f'k{kk lsok ds lkekU; laoxZ esa vkesyu ugha gks ldk gSA bl laca/k esa nkok] lk{; lfgr v/kksgLrk{kjh dks fnukad 10-10-2002 rd fuf'pr :i ls miyC/k djk;k tk;A fu/kkZfjr frfFk ds ckn miyC/k djk;s x;s nkoksa ij dksbZ fopkj ugha fd;k tk;sxkA ¼oS|ukFk izlkn½ funs'kd ¼iz'kklu½ lg&mi&lfpo ls-izk- ,oa O;Ld f'k{kk foHkkx fcgkj] iVuk ih-vkj-2466 ¼f'k{kk&57½ 02&03 fcgkj**

13. It is equally important to notice here that when the aforementioned newspaper notice published on 17.9.2002 in the local daily Hindustan Times was brought before the learned single Judge hearing CWJC No. 8679 of 2002 on 17.9.2002 itself by the intervener Association of S.E.S., the Appellant herein had raised hue and cry and on that basis alone another long interim order was passed by learned Single Judge drawing adverse inference against the officials of the State of Bihar for trying to overreach the orders of this Court and recording something contemptuous in the file as would be evidenced from the following text of his order dated 17.9.2002:-

"The present writ application has been filed for commanding the Respondents-authorities of the State for payment of consequential benefit after fixation of pay after 44 merger of the service in the Bihar Education Service in terms of resolution no. 3521/F of 77 dated 11.4.1977.

It would not be out of place to mention that the aforesaid resolution came for consideration before a Bench of this Court in C.W.J.C. Nos. 12122 of 1998 and 8147 of 1999 and the writ Court while hearing the matter together disposed of the same on 2.2.2000 by directing the State to implement the aforesaid resolution dated 11.4.1977. The State of Bihar being aggrieved by the said order, as per its understanding that the same related to implementing the recommendation of the committee, commonly known as Saran Singh Committee, moved by filing appeal which was numbered as L.P.A. Nos. 980 of 2000 and 988 of 2000. The L.P.A. Bench by its order dated 27.11.2000 dismissed the same in view of the fact that the order of the writ Court specifically directed the Government to take a decision in regard to resolution dated 11.4.1977. There appears no reason for the State to be aggrieved by such order. Still not being satisfied by the said order, the State of Bihar through the Chief Secretary moved the Supreme Court by filing a S.L.P. The said matter was taken up for interim relief on 16.4.2001. The Supreme Court interpreted the High Court‟s order and passed a final order to the effecrt that the final direction which has been given to the petitioner is to implement the resolution dated 11.4.1977 in the manner it is meant to be implemented. As the S.L.P. was also disposed of, the order of the writ Court attained a finality. The order of the writ Court in C.W.J.C. No. 12122 of 1998 and analogous cases attained a finality to the extent that the resolution of the State was to be given effect to. As the said order was not given effect and a lot of time has already elapsed, the petitioner, having no option, moved this Court for a direction to the functionaries of the State to implement the resolution of the State of 1977 as the same has been directed by the orders of this Court and the Supreme Court as discussed above.

Intervenor petitions have been filed for adding the necessary parties in support of the writ petitiones as it has been contended that some of them were the original petitioners in the writ which was decided by this Court. As there is no opposition to the said I.A. petitions, they are allowed and permitted to be added as respondents.

Counter affidavits were directed to be filed and as it transpired that communication between the different organs of the department was going on and as no final conclusion has been reached, the final effect to the result has not been given effect to inspite of direction of this Court and the Supreme Court.

One of the intervenors who was the original writ petitioner on the last date brought the notings in the record of the Finance Department in support of his contention that though other departments are inclined rather willing to implement the order of this Court in letter and spirit as the same was required to be implemented but it is none but one Additional Secretary, Finance, namely Rameshwr Singh, who is creating obstacle in the implementation of the same and in support of his contention drew the attention of the Court to page no.68 of the notings relating to the education department on which his notings to the Finance Secretary dated 15.9.2001 is there which goes to read as follows:-

foRr vk;qDr mi;qZDr fVIi.khA ;g Li"V gS fd mPp U;k;ky; ,oa mPpre U;k;ky; esa Hkh ^^gok esa** mHk; i{k dh vksj ls dkuwuh yM+kbZ xbZ tcfd ftl ladYi ds fu.kZ; dks ykxw djus dk fu.kZ; gS og fiVh'kulZ ls fdlh Hkh rjg lacaf/kr ugha gSA** In view of the said notings this Court had no option but to issue notice to the Secretary, Finance and the Additional Secretary, Finance as to why adverse inference be 46 not drawn against them. In view of the aforesaid order dated 3.9.2002 both the Secretary and the Additional Secretary are present in Court and have filed their show cause.

Though the said notings were tried to be explained but at the outset both the Additional Secretary and the Finance Secretary had expressed unqualified apology for the same and contended that it was never their intention to flout any order of this Court much less the understanding of the order may be one thing but there was no question of non- implementating the same.

Be that as it may, this Court direct the respondents to implement the aforesaid resolution as has been directed by this Court and the Supreme Court without any further delay as the order of the Supreme Court itself is of April, 2001, inter-differences, in the department are to be resolved on their own level. The Court cannot become an arbitrator. Once an order is there, which has been affirmed and attained its finality they are to be implemented.

As some time has been prayed for the same, let this matter be listed on 27 November, 2002 under the same list within 1-10 cases.

At the time when the order was being dictated and advertisement in the daily newspaper „Hindustan Times"

of 17 September, 2002 Patna Issue, has been brought to the notice of the Court where an advertisement has been made by Primary, Secondary and Adult Education Department which has been brought on record under the signature of the Director, Administration-cum-Deputy Secretary asking for identifying 59 posts. The contention of the petitioner is that as the aforesaid advertisement has been brought during the pendency of the writ application, the same may be directed to be kept in abeyance.

In the facts of the case, the only Order this Court proposes to pass is that the department may proceed 47 pursuant to the same but no final order would be passed until writ petiton is disposed of."

14. The monitoring in CWJC No. 8679 of 2002 however was further continued by this Court and on 9.12.2002 the learned single Judge having noted the history of the case went to pass the following order wherein he had recorded his final view that the order of this Court dated 2.2.2000 having merged in the orders the Apex Court dated 16.4.2001 meant merger of post of teachers in SES with BES by giving the following reasons:-

"To my mind the matter after that should have attained finality. The direction of the writ court had been agitated and tested up to the Supreme Court, but today, it is really unfortunate that the respondent-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. When the aforesaid part of the communication between the Addl. Secretary and the secretary Finance Department, was brought on the record, this court thought that it would be failing in its duty, if it did not issue notice to them to explain their notes in the record, though it was an internal communication, as it smacked of aspersion. The secretary and the Additional Secretary, Finance Department, appeared in court in person and filed their show cause and as it was explained by them that they did not mean any disrespect to the court rather they only wanted to communicate between each other regarding the fact that the actual decision by the said resolution has not been brought to the knowledge of the court, which resulted in wrong judgments.

Though this court was not satisfied with the said explanation, still as some explanation had been given and same was on internal communication it did not feel inclined to further proceed in the matter, rather, only a direction was given to the respondents to implement the direction of this court, which has been affirmed by the Supreme Court.

Today when the matter has again been taken up the state has thought it proper to contest the matter, rather bringing on record compliance of the earlier direction showing that earlier judgments have been given effect to.

It will not be out of place to mention here that the petitioner is a member of the Bihar Subordinate Education Service and as it has been contended by the learned counsel for the petitioner that the petitioner and other similarly situated persons had entered into service as Assistant teachers and they superannuated also as Assistant teachers, as such, it has been contended on his behalf that taking the, stagnation in their service and service of other similarly situated persons in other Department of the State, the aforesaid resolution had been taken after approval of the Cabinet and notified and as far as other departments were concerned, they had been given effect to long time back rather it has been contended that the Education Department has also taken a decision to implement the aforesaid resolution which would transpire from Annexure- 8, which is a draft for approval of the Finance Department so that the order of the High Court for implementing the resolution dated 11.4.1977 is complied with. The said draft clearly goes to show that the Education Department has found that the petitioner and other similarly situated persons were also required to be merged in the Bihar Education Service, in view of the aforesaid resolution. However, final approval of the Finance Department was sought for before final direction was issued in this regard. The said resolution speaks about 2465 sanctioned/ created posts. As such, it appears that the 49 only obstacle which remains in non-implementation of the resolution is concerned is the functionaries of the Finance Department, who are giving a different meaning to the said resolution.

Mr. Sanjay Singh, learned S.C.9, today has made very exhaustive argument giving details as to why the Finance Department feels that the aforesaid order cannot be given effect to rather he has contended that the entire resolution was for the benefit of the persons, who were in Bihar State Service and not Subordinate Education Service. As such, according to him the petitioner‟s case was never meant to be considered. He has taken this court to different paragraphs of the resolution dated 11.4.77 to show as to why earlier directions of this court cannot be given effect to. It has been argued that paragraph 2 of resolution dated 11th April, 1977 shows that junior sub-cadre with pay scale of Rs. 455-840 be amalgamated in the senior sub cadre in the pay scale of Rs. 510-1155/- in the services, details of which are given in the said paragraph. According to him the state service does not speak of the Bihar Education Service, as such, the petitioner‟s case cannot be considered.

If the meaning which is tried to be given to the resolution dated 11.4.77, is to be accepted to the whole resolution related to the Bihar Education Service becomes redundant, as if the persons belonging to the State Service were not covered by the said resolution 11-10- relating to the Education Department becomes redundant. Secondly this resolution has already been considered by the writ court affirmed by the L.P.A. Bench as well as the Supreme Court clearly stating that the resolution has to be implemented in totality in the way as has been directed by the writ court. Today it does not lie in the mouth of the authorities to give it any other interpretation rather they are sitting over the orders of this court as well as the supreme court and as such. They 50 are directed to implement the resolution dated 11.4.1977 in its totality within a period of six weeks from today, failing which , as already stated above, they are liable to be proceeded for violation of the present order and the order of this court dated 2.2.2000 as well as the orders of the L.P.A. Bench and the Supreme Court of India. If the order is not given effect to within the period as specified above, the petitioner shall be at liberty to bring a petition before this court in the present writ application itself so that if necessary the erring respondents can be proceeded against in accordance with law.

So far as I.A. No. 5191/ 2002 is concerned, which is on record, relates to inclusion of the names of the interveners in the gradation list as they belong to Bihar Education Service.

In view of the stand of the state that as per interpretation being given by the respondent-state specially the Finance Department perhaps intervener‟s inclusion in the said gradation list does not also find justified by them. Let the aforesaid matter be also considered by the respondent state.

With the aforesaid observations/directions, this writ application is disposed of."

(underlining by us for emphasis)

15. It has to be noted that immediately after expiry of a period of six weeks, two interlocutory applications I.A. No. 272 of 2003 and 315 of 2002 were filed in the aforesaid disposed of case as per the liberty given by the learned single judge and the case C.W.J.C. No. 8679/2002 was revived by an order dated 22.1.2003 and time was granted to file a show- cause explaining the circumstances and steps taken by the officials of the State of Bihar for giving effect to the order and direction of this Court dated 9.12.2002 in CWJC No. 8679 of 2002.

16. The aforesaid order of this Court dated 22.1.2003 which now gave the aforesaid disposed of writ application a color of contempt proceedings reads as follows:-

"Interlocutory applications have been filed by the writ petitioner and intervenor of C.W.J.C. No. 8697 of 2002 which was disposed of on 9.12.2002. As in the aforesaid writ petition six weeks‟ time was prescribed for complying the said judgment failing therewhich the petitioners were granted liberty to bring the aforesaid fact to the knowledge of the court by filing an application in the said writ petition itself and if the court so felt the respondents could be proceeded against in accordance with law.

According to learned counsel, the order has not been complied. As such, these interlocutory applications.

Mr. Sanjay Singh, learned Standing Counsel No. 9, who represents the respondents, is present in the court and takes notice on behalf of the respondents in the Interlocutory applications and states that he would be filing a show cause on their behalf explaining the circumstances and steps taken by them for giving effect to the order and directions of this Court dated 9.12.2002.

As prayed for, list this matter under the same heading after three weeks.

17. The State having no other option went in appeal in LPA No. 65 of 2003 and the Division Bench by order dated 27.1.2003 in LPA No. 65 of 2003 had also viewed the matter quite seriously and directed for personal appearance of the officials upto the rank of Chief Secretary by recording as follows :-

"The court has seen the record. The matter is serious 52 enough to occasion the presence of (a) the Chief Secretary, Government of Bihar, (b) The Principal Secretary, Finance, Government of Bihar, (c) the Secretary-cum-Commissioner, Department of Education (Secondary, Primary and Mass Education) Government of Bihar, and (d) the Director (Administration), Government of Bihar, Patna."

18. Thus on the next day i.e. 28.1.2003, the Chief Secretary, the Finance Secretary and the Secretary cum Commissioner of the Education Department along with the Director Administration of the Education Department were made to appear beforethe division bench this Court and in their presence a long order was passed, relevant portion whereof reads as follows:-

"After the order of the Supreme Court on an appeal by the State of Bihar itself, when the Special Leave Petition was disposed of with a direction to the State of Bihar to implement the resolution dated 27th April 1977 in the manner it is meant to be implemented, the issues stood resolved.

On record are circumstances that in the earlier set of litigation the defence in the writ petition and subsequently, whether on an appeal under Letters Patent or before the Supreme Court the issues were taken by the State of Bihar through the Department of Education. After the order of the Supreme Court the issues were terminal. Now, issues are being presented as if the Department of Education and the Department of Finance may be at issues. Details are on record and it will not be appropriate for the Court to record these details. Effort, truly of the State Government, should have been to even out the creases to resolve the dispute after the litigation has been drawn to a close on the disposal of the Special Leave Petition of the State of Bihar.

If the circumstances, should there be issues between the Department of Education and the Department of Finance, then the legal entity under the Constitution of India is the State of Bihar and not the departments of the government.

If such a conflict may exist between the departments of government within, then, the Court can do no more than guide the government on two decisions of the Supreme Court. The first decision is dated 11th September, 1991 and the second dated 11th October 1991, in the matter of Oil and Natural Gas Commission and Another vs. Collector of Central Excise.

"After having seen the aforesaid two decisions of the Supreme Court, learned A.A.G.2 appearing on behalf of the State of Bihar submitted, upon instructions from the Chief Secretary, present, that the matter may be adjourned for four weeks. The only anxiety of the court is that the State of Bihar will ensure that the order of the Supreme Court is compromised. The orders of the High Court and the Supreme Court have attained finality, to be honoured whatever be the solution."

19. On the other hand, learned single Judge also in the resurrected writ application CWJC No. 8679 of 2002 which had already been disposed of by him on 9.12.2002 and was revived by an order dated 22.1.2003 while continuing his suo-moto contempt proceedings had passed the following order on 17.2.2003:-

"In view of order dated 22.1.2003, a show cause was required to be filed on behalf of the Secretaries of the two Departments, i.e. the Finance and the Secondary Education Departments. However, the said show cause has not been brought on record.

Learned counsel for the respondent-state states that due 54 to intervening circumstances, i.e. some order of the LPA Bench, the same could not be filed. The order of the LPA Bench in LPA No. 65/03 dated 28.1.03 has been pronounced in the court. This court could not find from the aforesaid order anything which required the respondents not to file a show cause as directed by this court, rather the operation portion of the aforesaid order goes to show that the orders of the High Court as well as the Supreme Court have attained their finality to be honoured whatever be the solution.

In view of the same, this court directs the respondents to file the show cause as to why they be not proceeded for willful disobedience of the orders of this court that the Supreme Court as well as the order in CWJC No. 8679/02 dated 9.12.02."

20. The Division Bench, also on 10.3.2003 had dismissed the LPA No. 65 of 2003 by a cryptic order by recording as follows:-

"The Controversy has attained finality after the S.L.Ps. (Civil) Nos. 4937 & 4938 of 2001 (State of Bihar & ors. Vs. Bihar State G.S. School Teach. Asson. & ors.) was dismissed at the Supreme Court and beyond the order of 27.1.2003 nothing more need to be recorded.

Dismissed."

21. After the dismissal of LPA No. 65 of 2003, the resurrected writ application of Janardan Rai CWJC No. 8679 of 2002, in which contempt proceeding had already been initiated suo-motu by the learned single Judge of this Court, an order was passed by him on 25.3.2003 directing personal appearance of the Chief Secretary of the State of Bihar in the following terms:-

"Though the matter has been adjourned on several 55 occasions for compliance of the directive of this court for implementation of its earlier order, affirmed by the L.P.A. Bench and the Supreme Court, for the reason of the other, the same has not been complied with. Even no show cause was filed earlier but finally the name had been brought on record on 6.3.2003 and on that date also the matter on the prayer of the State Counsel as a last indulgence was adjourned to 25.3.2003 .

Today when the matter has been taken up this court was informed that the L.P.A. No. 65/2003 stood dismissed on 10.3.2003 As such, as the earlier order of this court was being complied with a personnel indulgence be granted so that a further show cause can be brought on record.

Counsel for the petitioner have objected the said prayer. As it has been contended that if the initial order is to be reckoned with which was of the year January, 2000, today more than three years have already elapsed since then. This court now has to see whether disobedience is willful or not and only for the purpose of accommodating the respondents should not be the reason for granting adjournment.

Be that as it may, as it has been contended that compliance was being done and the same would be done by Friday next for which show cause would be filed by that date and a copy thereof be served on counsel for the parties.

Let this matter be adjourned to 01.03.2003 when it should be listed on the top of the list. If no show cause is filed on that date, the Chief Secretary, Finance Secretary and the Education Secretary shall be personally present in court."

22. The Chief Secretary of the State of Bihar however, in terms of the direction of the Division Bench had submitted a report dated 27.3.2003 by way of his defence in the contempt proceedings undertaken 56 in C.W.J.C. No. 8679/2002 wherein having recorded the previous history of the case he had taken his following defence:-

"------ The Hon‟ble Supreme Court affirmed the merger of "individuals" with Bihar Education Service, which is wrongly being construed to mean that the Hon‟ble Supreme Court has affirmed and directed the merger of Bihar Su-ordinate Education Service.

There has been regular inter departmental consultations through files and different views were being expressed and considered in order to ascertain the meaning and interpretation of the order the Hon‟ble Court in this regard. However there were mere opinions and cannot be taken to be the decision of the State Government. The Department of financed pointed out the true spirit and import of the Saran Singh Committee report, the resolution (Of the Finance Department) and the order of the Hon‟ble Court. The department of Education‟s final viewpoint is the same as that of the Department of Finance, and their counter affidavits filed in CWJC No. 8679 of 2002 are in consonance and there is no dispute between the two departments.

As regards the implementation of the resolution and the order of the Hon‟ble High Court, the same has been implemented in the following manner:- (i) 2 posts Doctors had been included in the Health Services. (ii) 4 posts of Engineers were merged in the Public Works Department. (iii) 1 post of Stadium Manager had been taken under Bihar Education Service (iv) 23 post of teachers were in Netarhat School for which no action had to taken (v) 6 posts of Assistant Maulvi and 2 post of Assistant Teacher of Madarsa Islamia Samsul Hoda had been merged with Bihar Education Serviced vide department letter No. 385 dated 10.5.1982 (copy enclosed). (vi) Previously, there were State Institute of English, Office of the Teaching Vocational Education and office of the Audio-Visual, 57 which had isolated and individual posts. By resolution no. 134 dated 16.01.1981 (copies of resolution and notification enclosed ) altogether 21 posts of above mentioned 5 institutions were merged with the State Council of Educational Research and Training. It would be evident from the Annexures 5 & 6 7 of the notification No. 134 dated 16.01.1981 that 20 posts in aforementioned institutions were already in the pay scale of Rs.620-1415/- (Bihar Education Service Class-1) and Rs.510-1155/- (Bihar Educational Service Class-1) and Rs.510-1155/- (Bihar Education Service, Class-III, The Remaining one post of Audio-visual Education Officer in the pay scale of Rs.510-1155/-and redesignated as Librarian (Bihar Education Service Class II), as evident from Annexure 8 of the aforementioned notification. Thus action was taken for all the 59 posts of the Miscellaneous cadre as recommended in para 11.10 of Saran Singh Committee report.

The Department of Education, however, had undertaken an exercise during the pendency of C.W.J.C. No. 8679 of 2002 to identify any other isolated posts if left out and had accordingly advertised and had constituted a three men committee to look into the response in pursuance to the advertisement. This Committee did not find any merit in the responses so received.

As regards the Bihar Subordinate Education Service, they are the feeder cadre of the Bihar Education service and therefore there is no stagnation in their ranks. Bihar Subordinate Education Service cadre is a recognized cadre with promotional avenues to the extent of 50% of posts in general/administrative wing and 80% of posts in the teaching wing in Bihar Education Service ( A copy of notification No. 600 dated 02.03.1974 enclosed).

It is also important to note that there was no unified Cadre of Bihar Subordinate Education Services in the year 1977. When the aforesaid resolution dated 11.4.1977 was issued. In 58 fact, in Bihar Subordinate Education Service there were lower grade and upper grade. In the year 1978, by the Education Department Letter No. 1607 dated 11.11.1978 both the lower and upper grades (pay scale 387-600 and 415-745) were merged and then Bihar Sub ordinate Education Service came into existence. Twenty percent post of this newly Scale of Rs.510-1155 in the year 1978 (A copy of letter No. 1607 dated 11.11.78 enclosed). In the light of the aforesaid facts, it would not be correct to conclude that the members of the Bihar Subordinate Education Service are being denied promotional avenues and are being subjected to stagnation. In the light of the aforesaid discussion, it appears that the resolution dated 11.4.1977 had already been implemented. This was further confirmed by the exercise, as mentioned in para 14 above, undertaken by the Department of Education in pursuance of the orders of the Hon‟ble Courts."

23. The filing of this report by way of defence of Chief Secretary of the State before the learned single Judge in the resurrected writ application CWJC No. 8679 of 2002 had invoked further wrath of the learned Single Judge as would be evidenced from the following extract of his order dated 1.4.2003:-

"Today when the matter was taken up, show causes filed on behalf of Umesh Narain Panjiar, Commissioner -cum- Secretary, Department of Finance, Government of Bihar and Bipin Bihari Shrivastava, Secretary ,Secretary Education have been brought on record. By perusal of the aforesaid affidavit it transpires that though unqualified apologies have been tendered for inconvenience caused to the court but no implementation order has been brought on record rather the issue of the submission is the same as had been made before the writ court at the first stage in C.W.J.C. Nos. 12122 of 1998 59 and 8147 of 1999 and L.P.A. Nos. 980 of 2000 and 988 of 2000 and S.L.P. No.s 4937-4938 of 2001. This court before accepting or rejecting the aforesaid show cause, thought it proper to provide an opportunity to learned state counsel to place the same, in the manner as he desired to place it.

Mr. Sanjay Singh, learned state counsel has taken place to take this court through the entire gamut of the matter starting from the date when the state of bihar look a decision taking the strategies into services of its employees. For which it decided to appoint a committee headed by one Mr. Sharan Singh, popularly known as Sharan Singh Committee, to show that the intention of the state was never to merge the two cadres i.e. cadre of the Subordinate Education Service class-II to that of the Bihar Education Service or to merge any cadre at all, rather it has been argued by taking this court to the committee‟s recommendation and otherwise also that some posts were identified and marked which were required to be merged with the Bihar Education Service and not the services of all the teachers, who were members of the Bihar Subordinate Education Service Class-II.

This court is considered to hold that today it is not open to respondents to go into the merit of the matter once again rather they are supposed to implement the order and direction of this court which had been given to the writ application by the writ court, upheld by the L.P.A. Bench and the Supreme Court in the S.L.P. Petition and finally reiterated by this court in the present writ application. The order of this court was also challenged before the L.P.A. Bench and affirmed. By bare perusal of those orders, there can be no doubt rather one and the only meaning which can be given to it, is a direction to the state to merge the two cadres.

Counsel for the petitioners have also taken this court to the pleading of the state when they had preferred L.P.A. and the S.L.P. before the Supreme Court to show that from the very 60 beginning this was the meaning which has been understood by the Respondents in as much as they had tried to bring the sharan Singh Committee report on record to show that the meaning which was proposed to be given by the writ court was not correct and the order of the writ court required interference. Paragraphs 5,8,9,10 and 16 of L.P.A. No. 980/2000 and paragraphs 64 and 149 of S.L.P. petition has been placed in support of this contention. L.P.A. Bench as well as the Supreme Court in the S.L.P. did not interfere in the same. The resolution dated 11.4.1977 was directed to be given effect to the said resolution reads as follows :

^^fofHkUu inksa tSls f'k{kk ¼usrjgkV ds f'k{kdksa dks NksM+dj½] LVsfM;e eSustj bR;kfn ds inksa dks fcgkj f'k{kk lsok laoxZ esa 'kkfey dj fy;k tk, vkSj laoxhZ; inkf/kdkfj;ksa dks gh bu inksa ij fu;qDr fd;k tk,A** A Judgment of Supreme Court in the case of Anil Ratan Sarkar and others Vrs. Hirak Ghosh and ors., reported in 2002(4) Supreme Court cases 21 has been relied upon where it has been held that disobedience of a clear and unambiguous order of a court, capable of not more than one interpretation, would amount to contempt of court. There can be no laxity in such a situation, because otherwise court orders would become the subject of mockery and courts themselves rendered useless.

This court feels that the present case is also one of such cases in which no two interpretation can be given, as such, this court has no option but to reject the show cause filed by Umesh Narain Panjiar, Commissioner cum Finance Secretary and Bipin Bihari Srivastava, Secretary Secondary Education and directed them to be personally present in court on 15 April, 2003 at 2.15 for framing of charges."

24. Under these circumstances, the Stat of Bihar and its officials on account of the hanging of sword of Damocles over their head had moved the Apex Court in Special Leave Petition No. 4650 of 2003 assailing the order of the Division Bench dated 10.3.2003 in LPA No. 65 of 2003 and also bringing to the notice of the Apex Court the interim order dated 1.4.2003 in CWJC No. 8679 of 2002 as with regard to framing of charge in the contempt proceeding by the learned single Judge. The Apex Court by its order dated 17.4.2003 while issuing notice had stayed the contempt proceeding and had also impleaded Bihar State Government Secondary School Teachers Association the appellant herein as a party respondent. The State‟s S.L.P. later on, Civil Appeal No. 4466 of 2003 was disposed of by an order dated 19th April 2006 wherein the Apex Court had recorded as follows:-

"That a Government Resolution passed in 1977 has not yet been implemented and continues to be the subject matter of a spate of litigation, despite 14 orders of different courts, is something that shocks the conscience of this court.

The order of the High Court in Letters Patent Appeal, which has resulted in the present Appeal is a short (one paragraph) order, but the background appears to be voluminous. Learned Counsel on both sides have taken us through the various documents on record. After patiently plodding through the record and the various orders, the only point that needs to be considered is, whether the Resolution No. 3521F2 dated 11th April, 1977 of the State Government has been implemented in respect of the Members of the Bihar Subordinate Education Service comprising Male and Female 62 teachers. According to the Respondents, its implementation would mean merger of the cadre of teachers belonging to the Bihar Subordinate Education Service with the Bihar Education Service Class2; the stand of the State Government is that this Resolution, which accepts and implements the report of the Saran Singh Committee (Paragraph 11.10), has nothing to do with the Members of the Bihar Subordinate Education Service Cadre.

Writ petitions were filed before the High Court of Patna and they were allowed in favour of the teachers holding that such merger is contemplated in the concerned Government Resolution. A contempt petition was also taken out alleging non-implementation of the High Court‟s order, which had directed the state specifically to implement the concerned Resolution dated 11th April, 1977. That contempt petition is still pending before the High Court and has been stayed in the present appeal.

At the end of the day, we are satisfied that whether the implementation has been done in the manner required by the Resolution or not is for the High Court to decide since the High Court is in seisin 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 latter, we do not think that it is necessary for us to interfere at all.

Civil Appeal is dismissed.

25. Soon thereafter the writ application C.W.J.C. No. 8679/2002 was again placed before the learned single Judge who on 10.5.2006 had passed an order for continuation of the contempt proceeding and had directed for filing of the show-cause as to why a contempt proceeding be not drawn against them by fixing the date of 10th of July, 2006 and directing the personal appearance of the Commissioner-cum-Secretary, Finance Department and the Education Commissioner.

26. It is in this background that an order was passed by the Education Department of the State of Bihar on 7.7.2006 which on being translated in English would read as follows:-

"Government of Bihar Human Resources Development Department Resolution No.-2/M0-7-38/2006-1209 Patna Dated 07.07.06 In compliance of the direction given by the Hon‟ble Supreme Court in CWJC No. 12122 of 1998, 8147 of 1999 and 8679 of 2002 as also in the various orders passed in LPA No. 65 of 2003 and the order of the Hon‟ble Supreme Court in SLP No. 6450 of 2003 as also Civil Appeal No. 4466 of 2003 the male and female teachers of Subordinate Education Service (teaching branch) are merged in the Bihar Education Service Class-2 in terms of the resolution no. 3521 dated 11.4.1977 of the Finance Department. Appropriate orders as with regard to the individual benefit on account of merger would be issued separately after its being computed.

By the order of the Governor of Bihar (Madan Mohan Jha) Commissioner and Secretary Human Resources Development Department"

27. On 10.7.2006, the aforesaid resolution dated 7.7.2006 was produced before the learned single Judge who having recorded the aforementioned development had adjourned the matter for a period of three months for monitoring the progress made with respect to the exercise as with regard to the grant of individual benefit to the teachers of SES by recording interalia:-

"Heard learned Advocate General appearing for the State and Mr. Rajendra Prasad Singh, Sr. Advocate and Mr. Binod Kumar Kanth, Sr. Advocate appearing for the petitioners.

Today a show cause has been filed on behalf.

Dr. M.M. Jha, Commissioner-cum-Secretary, Human Resources Development Department, Annexure-A to the show cause contains resolution of the State Government bearing Memo No. 1209 dated 7.7.06 by which the State Government in compliance with the orders of this court and of the Supreme Court has decided to merge the cadre of subordinate Education Service (Teaching Branch) with effect from 1.1.1977 with the Bihar Education Service Class -II. It is further stated in the said resolution that so far as the individual benefits to the persons are concerned, an appropriate order will be issued after undertaking the exercise for the said purpose.

As jointly prayed for by the parties put up the matter after three months when the State Government is directed to file affidavit as to the progress made with respect to the said exercise.

The appearance of the opposite parties is hereby dispensed with."

28. At this stage, the Bihar Education Service Association with its members the Respondents herein had already filed CWJC No. 1009 of 65 2006 on 19.8.2006 assailing the aforesaid Resolution of merger dated 7.7.2006 on various grounds but before the said writ application could be taken up for hearing, the officials of the State of Bihar in view of the monitoring being made in terms of the order dated 10.7.2006 in the resulted CWJC No. 8679 of 2002 had reported compliance either by making some payment to the teachers of SES or by drawing a provisional gradation list it was recorded in the order of this Court dated 16.10.2006 in the continuing contempt proceedings in the resurrected writ petition of appellant Janardhan Rai, C.W.J.C. No. 8679 of 2002 while adjourning the said case for a period of three months that :-

"A provisional gradation list has been filed in the counter affidavit filed today on behalf of the State. Learned Government Pleader No. 17 prays for three months time to fully implement the earlier orders of this court and to complete all steps for implementation of the orders under contempt.

Put up the matter after three months."

29. It is equally important to notice here that, while the matter was being further monitored as with regard to the implementation of the order of merger dated 7.7.2006 in C.W.J.C. No. 8679/2002, a fresh writ application was also filed on 29.11.2006 by 51 teachers of SES who by claiming to have been merged in BES had prayed for a direction for payment of consequential benefit along with fixation of pay in terms of the resolution of the State Government dated 11.4.1977 in terms of the order of this Court dated 2.2.2000. While the said writ application CWJC 66 No. 14678 of 2006 with regard to the fixation of pay in the BES pay scale was still being agitated by some of the teachers of SES, this Court on 17.1.2007 had again noted the grievance of appellant Janardan Rai of CWJC No. 8679 of 2002 in the suo moto contempt proceeding that the order of this Court had not been fully complied and in in this context an order was passed on 17.1.2007, which reads as follows:-

"A supplementary counter affidavit has been filed on behalf of the respondents in which the steps taken during this period have been indicated. Earlier while granting three months time in the matter it was expected by this Court that every step would be taken to finally close the matter during this period but such is not the position. However, on the prayer of Government Pleaders No.17, the matter is adjourned for six weeks to enable him to fully comply with the earlier orders of this Court.

Put up the matter in the same position after six weeks."

30. When on 8.3.2007 after expiry of a period of six weeks under the aforementioned order, the matter was again placed before the learned single Judge, he having recorded his dissatisfaction in the matter of contempt of the order of this Court had again sought the personal appearance of the Finance Secretary and the Secretary of the Education Department by passing his order in C.W.J.C. No. 8679/2002 in the following terms:-

"Six supplementary counter affidavit has been filed on behalf of the respondents. In the supplementary counter 67 affidavit it has been stated that the pay slip has been issued, provisional gradation list has been prepared and objection has been invited. It only indicates that there is no final compliance of the direction of this court. The manner in which the compliance process is going on is not satisfactory. If it is left undisturbed probability is that it will take indefinite time.

Considering this fact let this matter be placed under the same heading on 26.3.2007 within 1st five cases. On that date the Finance Secretary, Government of Bihar as well as the Director Administrative, Human Resources Department the Secretary, Higher Education, Human Resources Department will remain physically present in court with their affidavits."

31. On 26.3.2007 when the Secretaries of the Finance Department and the Education Department had appeared, before the learned Single Judge in coruse of contempt proceedings being still monitored in C.W.J.C. No. 8679/2002, though a note of dissatisfaction was recorded in her order dated 26.3.2007 but then she had granted a period of six months time to them for making individual payment to the teachers of SES who were merged in the BES as also for drawing seniority list but it was also made clear that such implementation was without prejudice to the right of the Bihar Education Service Association and its members, the respondent writ petitioner who had filed their CWJC No. 10091 of 2006 against the aforesaid resolution of merger dated 7.7.2006.

32. It was, only thereafter, that the learned single Judge of this Court had heard the two connected writ petitions CWJC No. 10091 of 2006 filed by the Bihar Education Service Association and its members 68 assailing the order of merger dated 7.7.2006 and also the writ application filed by 51 teachers of SES merged in BES seeking implementation and payment of salary in terms of the resolution dated 7.7.2006 together which were disposed of by the impugned judgment and order dated 31.10.2007 whereby and whereunder he had set aside the resolution of the merger dated 7.7.2006 and had given liberty to the State to consider the grievance of 51 teachers of the BSES for inclusion /merger in the BSES Class-II.

33. It is against the aforesaid common order of learned Single Judge dated 31.10.2007 that initially four appeals LPA Nos. 941/2007, 946/2007, 947/2007 and 974 of 2007 were filed by the affected individual teachers including the aforementioned Janardan Rai in whose writ application CWJC No. 8679 of 2002, the entire contempt proceedings was being monitored by this Court. A Division Bench of this Court by order dated 20.12.2007 in these appeals recording that the contempt matter is pending in CWJC No. 8679 of 2002 had passed an interim order that no recovery, from the teachers of SES towards the payment already made to them in view of the impugned judgment of learned Single Judge quashing the merger notification dated 7.7.2006 would be made till the disposal of the appeals.

34. It appears that the Bihar State Government Secondary School Teachers Association the appellant herein in stead of filing its appeal 69 against the aforesaid judgment of the learned single Judge dated 31.10.2007, quashing the merger notification dated 7.7.2006, had straightway moved the Apex Court by both filing of Special Leave Petition as also a writ application, being SLP No. 8031 of 2008 and WP(C) 530 of 2008, assailing the order of the learned single Judge and the Apex Court after hearing of the parties in its order dated 16.3.2009 had refused to interfere in the matter by recording as follows:-

"The Special Leave Petition as well as the writ petition arising out of the judgment of the learned single Judge of the High Court dated 31st October, 2007 shall stand disposed of by this common order:-

During the course of the hearing of these matters we have been informed by the learned counsel appearing for the State of Bihar that some of the members of the Association have already filed Letter Patent Appeals against the impugned order of the learned single Judge before the High Court which are pending for consideration and final decision. In that view of the matter, we are not inclined to interfere with the impugned order of the learned single Judge at this stage. However, the petitioners before us in these proceedings are at liberty to approach the High Court by way of LPA(s) which shall be filed by them within two weeks from today. If the petitioners file LPA(s) within the stipulated period, the High Court is requested to entertain the same without reviving the issue of limitation and shall make endeavour to hear and decide all the appeals together within three months from the date of this Order. Needless to say that the appeals shall be heard and decided on their own merits as we have not embark upon the merits of the cases filed before this court. The contempt proceedings said to have been filed and pending 70 before the High Court, shall also be heard and decided by the Division Bench of the High Court along with the LPAs.

The Special Leave Petition as well as the Writ Petition stand disposed of accordingly."

35. In view of the direction of the Apex Court in the aforementioned order, the appeal of the Bihar State Secondary School Teachers Association, LPA No. 418 of 2009 has been heard along with the CWJC No. 8679 of 2002 in which contempt proceedings was being monitored by this Court along with another contempt application MJC No. 251 of 2001 and that is how all these seven cases have been placed before us for final hearing.

36. The aforementioned background covering the litigation in a period of twelve years and voluminous records produced by the parties followed by marathon course of submissions during final hearing of these seven cases may at the first sight create an impression of some serious complicated and jinxed question of facts and law but at the end of day, the issue is very simple namely as to whether the Resolution of the Finance Department dated 11.4.1977 did ever envisage merger of teachers of SES in the BES Class-II. An affirmative findings in favour of the appellants would not only lead to upholding the correctness of the merger notification dated 7.7.2006 and thus reversal of the impugned judtment of learned Single judge but would also make the officials of the State of Bihar guilty of committing contempt and thus liable for 71 punishment, inasmuch as, out of the seven cases two of them apart from the five appeals are directly confined to the issue of committing contempt of this Court.

37. Mr. Binod Kanth followed by Mr. S.N.Jha and Mr. Chitranjan Sinha, senior counsels, appearing on behalf of the appellants in these set of cases have by placing reliance on one or other set of order of this Court or the Apex Court have impressed upon us to hold that merger of teachers of SES was the forgone inevitable conclusion of the resolution of the Finance Department dated 11.4.1977 as was also held by this Court in CWJC No. 12122 of 1998, CWJC No. 8147 of 1999, CWJC No. 8679 of 2002, LPA No. 65 of 2003, SLP(C) No. 6450 of 2003 and Civil Appeal No. 4466 of 2003.

38. Per contra, the other side represented by learned Advocate General ably assisted by Mr. Amar Nath Deo, Government Pleader and Mr. Sanjay Singh, appearing on behalf of the Respondent writ petitioners. Bihar Education Service Association and its members have however contended that neither in the resolution of the Finance Department dated 11.4.1977 nor in any order of this Court except in CWJC No. 8679 of 2002 (which is being heard with these appeals) it had even remotely held as with regard to the merger of the teachers of SES in BES. As with regard to the order passed by the learned single Judge in CWJC No. 8679 of 2002, it was sought to be explained by the learned Advocate General 72 that since that case itself was being heard along with these appeals as per the order of the Apex Court dated 19.4.2006, the same could not be treated as a binding precedent.

39. Mr. Kanth who had led the argument in his usual flambuoyant manner, however, was of the view that the order passed in CWJC No. 8679 of 2002 having been affirmed by the Division Bench in LPA No. 65 of 2002 and also by the Apex Court in the order dated 16.4.2001 in SLP No. 4937-4938 of 2001 cannot be reviewed for arriving at any different conclusion and therefore, this Court has to only make a formal pronouncement that the impugned order passed by the learned single Judge quashing the merger notification dated 7.7.2006 was wholly without jurisdiction. In this context, Mr. Kanth had raised the following issues while pressing the appeal LPA No. 418 of 2008:-

1. Whether the Resolution dt. 11.4.1977 per se was interpreted by the Single judge of Patna High Court in CWJC No. 12122/1998 on 2.2.2000 and if yes, was it set aside by the DB in LPA and if not, did the LPA bench leave room for the State to interpret it afresh, and if yes, why did the State prefer appeal before the SC where the SC, while dismissing the SLP preferred by the State did not hold that since Single Judge or DB of High Court had not interpreted the Resolution and now it could be 73 interpreted again by the State Govt ?

2. Whether again in the second bout litigation in CWJC No. 8679/2002 did the Single Judge also interpret the Resolution by holding that this Hon‟ble Court and the SC had interpreted it to mean merger of the entire cadre of SES with BES and if yes, did it issue a writ of mandamus to do it and when the LPA bench dismissed the State‟s appeal, did it leave any room for the State to toy with the exercise of its further interpretation and if yes was there any occasion for the State to rush to SC in appeal and if not, did the SC, while dismissing the Civil Appeal by holding that the writ court had held that merger was contemplated in the govt resolution itself, leave any further room for the State to interpret the Resolution for its implementation ?

3. Whether the Single Judge who has passed the impugned judgment had any jurisdiction to interpret the Resolution afresh ? Or, only that bench of this Hon‟ble Court which was hearing the contempt in CWJC No. 8679/2002 had the jurisdiction in terms of the direction given by the SC in its order dt 19.4.2006 to see to it in what manner the Resolution was being implemented ?

4. Whether, in the aforesaid circumstances a different bench other than that hearing and monitoring the implementation could again interpret it ?

5. Whether, assuming (though not conceding) the Single Judge could again take upon himself to interpret it and who, in the impugned judgment has interpreted the Resolution to mean only the "merger" of a Miscellaneous cadre into BES and which was done way back in 1982 itself as per the Report of the Chief Secretary and as such it was a fait accompli and hence the merger of the entire cadre of SES into BES was unwarranted and this interpretation has been challenged only by the teachers not the BES Association (writ petnr.), then can the LPA bench take upon itself to go beyond the findings of the Single Judge and undertake an exercise to see in what manner the Resolution ought to have been interpreted?

6. Therefore, in the instant LPAs only this much has to be seen, if this interpretation given the impugned judgment is correct and assuming, this to be correct, will the merger of six maulvis and one principal, teachers of Urdu. All being members of Subordinate Education Service and not the non-existent and imaginary Misc. Cadre mean the 75 merger as a fait accompli in terms of the Resolution ?

40. In view of the aforesaid submissions of the parties, the first and foremost issue to be decided is as to whether the resolution of the Finance Department dated 11.4.1977 did envisage merger of the teachers of SES in BES? The resolution dated 11.4.1977 of the Finance Department is on record and for the sake of clarity is reproduced hereinbelow:-

^^fcgkj xtV la- 352 fo0 for foHkkxA ladYiA 11 vizhy 1977 fofHkUu jkT; lsok laoxksZ dk cy ,oa orZeku izksUufr ds volj dks n`f"Vdks.k esa j[kdj vojks/k dh leL;k dk ewY;kadu djus ,oa bl vojks/k dks nwj djus ds rjhds ,oa izksUufr ds volj iznku djus ds mn~n's ; ls jkT; ljdkj us ojh; inkf/kdkfj;ksa dh ,d lfefr dk xBu fd;k Fkk A ¼2½ mi;qZDr lfefr dks vuq'kalkvksa ij iw.kZ fopkj dj jkT; ljdkj us izksUufr ds ekxksZ dks iz'kLr djus ds fy;s fuEufyf[kr fu.kZ; fy;k gS %& ¼I½ fcgkj d`f"k lsok] fcgkj i'kqikyu lsok] fcgkj lgdkfjrk lsok] lgdkfjrk foHkkx ds v/khu vads{k.k 'kk[kk] foRr foHkkx ds v/khu vads{k.k 'kk[kk] fcgkj lkaf[;dh lsok ,oa fcgkj fu;kstu lsok laoxksZ ds duh; oxZ ¼2½ ds osrueku 455&15&560& n0v0&20&740&n0v0&25&840 ds inksa dks rhu okf"kZd pj.kksa esa ojh; oxZ ¼2½ ds osrueku 510&25&610&30&670&n0v0 &30&910&n0v0&35&1]155 esa lafoy;u dj fn;k tk; A iz;e lafoy;u fnukad 1 tuojh 1977 ls ykxw gksxk A ls foy;u ds QyLo:i mPprj osrueku esa osru fu/kkZj.k fcgkj lsok lafgrk ds fu;e 78 ¼,½ ¼1½ ds vuqlkj fd;k tk,xk A lHkh lacaf/kr foHkkx jktdh; lsok laoxksZ esa Lohd`r inks ads vk/kkj ij foRr foHkkx dh lgefr ls duh; ,oa ojh; lEoxksZ ds lafoy;u ds laca/k esa vyx&vyx jkT;kns'k fuxZr djsaxs A ¼II½ jkT; ds lHkh lsok laoxksZ esa osrueku 620&35&830&n0v0&35&1]110&40&1]190&n0 v0&45&1]325 esa l`ftr inksa dks 620&35&830&n0v0&35&1]110&40&1]190&n0v0&45&1]415 ds osrueku esa mRdzfer dj fn;k tk;A bl mRØe.k ds QyLo:i osru fu/kkZj.k u;s osrueku esa mlh Lrj ij gksxk ftl Lrj ij iwoZosrueku esa in /kkjd viuk osru fudklh djrs Fks A bldk izHkko fnukad 1 tuojh 1977 ls gksxkA ¼3½ vojks/k dh leL;k dks nwj djus gsrq fuEufyf[kr lsok laoxksZ ds fy;s fofHkUu Lrjksa ij mPprj inks ads l`tu djus dk fu.kZ; fy;k x;k gS A bldk izHkko fnukad 1 tuojh 1977 ls gksxkA ;s mPprj in laoxZ ds fuEurj inksa dks laifjofrZr dj l`ftr fd;s tk;sxa s ftlls laoxZ ds dqy Lohd`r cy esa o`f) 76 u gks %& ¼d½ fcgkj foRr lsok & fcgkj foRr lsok laoxZ esa d`y laoxhZ; inksa ds Lohd`r cy dk 15 izfr'kr lgk;d okf.kT;&dj vk;qDr ¼620&1]415½] 10 izfr'kr mi&okf.kT;dj vk;qDr ¼1]060&1]580½ ,oa 2-50 izfr'kr la;qDr okf.kT; dj vk;qDr ¼1]340&1]870½ ds in jgsxa sA ¼[k½ fcgkj Je lsok & bl lsok laoxZ esa dqy laoxhZ; inksa ds Lohd`r cy dk 13 izfr'kr lgk;d Jek;qDr ¼620&1]415½] 5 izfr'kr miJek;qDr ¼1]060&1]580½ ,oa 2-50 izfr'kr la;qDr Jek;qDr ¼1]340&1]870½ ds in jgsxa s A ¼x½ Je foHkkx & ¼ fujh{kky;½ & fujh{kdksa ds laoxZ esa Lohd`r laoxhZ;

inksa dk 20-50 izfr'kr in izoj dksfV fujh{kd ds in 620&1]415 ds osrueku esa jgsxk A ¼?k½ fcgkj U;kf;d lsok & fcgkj U;kf;d lsok laoxZ esa eqaflQ ¼510&1]155½ ds 12 inksa dks lo&tt ¼620&1]415½ ds in esa mRØfer dj fn;k tk;A ¼p½ fcgkj vkj{kh lsok & fcgkj vkj{kh lsok esa miyC/k duh; izoj dksfV ¼620&1]235½ ,os ojh;

izoj dksfV ¼890&1]415½ izR;sd ds inksa dks dqy laoxhZ; inks ads Lohd`r cy ds 7]50 izfr'kr dh txg 10 izfr'kr dj fn;k tk;A ¼N½ fcgkj dkjk lsok &fcgkj dkjk lsok ds 1]060&1]580 ds osrueku esa Lohd`r cy ds 7-50 izfr'kr dh txg 10 izfr'kr dj fn;k tk; A ¼t½ fcgkj d`f"k lsok @ fcgkj i'kqikyu lsok & fcgkj d`f"k lsok @ fcgkj i'kqikyu lsok laoxksZ esa laoxhZ; inksa ds Lohd`r cy ds 15 izfr'kr in 620&1415 ds osrueku esa 3 izfr'kr in 1]060&1]580 ds osrueku esa ,oa 2 izfr'kr in nksuksa lsokvksa ds funs'kdksa ds funs'kdksa ds inksa dks lfEefyr dj 1]340&1]870 ds osrueku esa jgsxa s A ¼>½ fcgkj eRL; lsok & fcgkj eRL; lsok laoxZ esa dqy Lohd`r laoxhZ; inkas ds 15 izfr'kr in 620&1]415 ds osrueku esa 5 izfr'kr in 1]060&1]580 ds osrueku esa ,oa 3 izfr'kr in 1]340&1]870 ds osrueku esa jgsaxsA ¼V½ fcgkj f'k{kk lsok & fcgkj f'k{kk lsok laoxZ ds dqy Lohd`r laoxhZ; inkas ds 18 izfr'kr in 620&1]415 ds osrueku esa ,oa 4 izfr'kr in 1]060&1]580 ds osrueku esa jgsxa sA ¼B½ fcgkj lgdkfjrk lsok &fcgkj lgdkfjrk lsok laoxZ esa Lohd`r la;qDr fuca/kd ds 8 inksa ¼1]060&1]580½ esa ls nks inksa dh osrueku 1]340&1]870 esa mRØfer dj fn;k tk;A bldk inuke ojh; la;qDr fuca/kd gksxkA ¼M½ lgdkjfrk vads{k.k lsok & lgdkjfrk vads{k.k lsok laoxksZ ds Lohd`r cyksa ds 14-5 izfr'kr in 620&1]415 ,oa 7-5 izfr"kr in 1]060&1]580 ds osrueku esa jgsxa sA ¼<½ fcgkj lkaf[;dh lsok & fcgkj lkaf[;dh lsok laoxZ esa 12 izfr'kr in 620&1]415 ds osrueku esa] 5-5 izfr"kr in 1]060&1]680 ds osrueku esa ,oa 2 izfr"kr in 1]340&1]870 ds osrueku esa jgsxa sA 1]340&1]870 ds in dk inuke ojh; la;qDr funs'kd gksxkA ¼r½ fu;kstu ,oa izf'k{k.k lsok laoxZ & izf'k{k.k "kk[kk esa 620&1]415 ds osrueku esa Lohd`r 10 inksa es ls 2 inksa dk osrueku 1]060&1]580 esa mRØfer dj fn;k tk;A fu;kstu "kk[kk esa laoxhZ; Lohd`r cy ds 10 izfr'kr in 620&1]415 ds osrueku esa] 3-5 izfr'kr in 77 1]060&1]580 ds osrueku esa ,oa 2 izfr"kr in 1]340&1]870 ds osrueku esa jgsxa sA ¼4½ ;g Hkh fu.kZ; fy;k x;k gS fd vjktif=r inkf/kdkfj;ksa dh rjg jktif=r inkf/kdkfj;ksa dks Hkh izR;kojuks/k osru o`f);ka Lohd`r dh tk;aA ftu inkf/kdkfj;ksa dks osru muds orZeku osrueku ds vf/kdre Lrj ij igqap x;k gS mUgsa mlh Lrj ij izR;sd rhu o"kksZ dh lsok ds vk/kkj ij vfUre osru o`f) ds lerqY; ,d osru o`f) vuqekU; gksxhA ,slh osru o`f);ksa dh lhek 32 jgsxh vkSj xR;kojks/k osru o`f) ,oa dksfV osru dk ;ksx :I;s 2]150 vf/kdre gksxkA ¼5½ lfefr us xR;kojks/k dh leL;k dk ewY;kadu djrs gq;s fofHkUu lq>ko fn;s gS ftls jkT; ljdkj us eku fy;k gSA bu vuq'kalkvksa dh layXu vuqlwph esa vafdr fd;k x;k gSA vkns'k&vkns'k fn;k tkrk gS fd tu lk/kkj.k dh tkudkjh gsrq bl ladYi dks fcgkj jkti= esa izdkf'kr dj fn;k tk;A fcgkj&jkT;iky ds vkns'k ls] lfPpnkuUn flugk ljdkj ds fo'ks"k lfpo vuqlwphA Øe Lfefr ds i`"B foHkkx jktdh; Lkfefr dh vuq'kalk Lkjdkjh la0 izfrosnu la0 lsok fu.kZ;

         dh dafMdk
     1         2          3        4               5                   6                     7
 1       3-8          7       foRr foHkkx fcgkj foRr     fcgkj      foRr     lsok     ds Lohd`r
                                          lsok           inkf/kdkfj;ksa dks vU; foHkkxksa
                                                         ,oa {ks= miØeksa A yksd m|eksa
                                                         esa mnkjrkiwoZd izfr fu;qDr
                                                         fd;k tk;A
 2       4-6          9       Je foHkkx    fcgkj Je      fcgkj        Je     lsok     ds Lohd`r
                                           lsok          inkf/kdkfj;ksa dks fofHkUu
                                                         foHkkxksa esa ,oa yksd m|eksa
                                                         "kkldh; {ks= miØeksa esa
                                                         mnkjrkiwoZd izfrfu;qDr djuk
                                                         pkfg;sA jkT; ljdkj dks uhfr
                                                         fu.kZ; ysuk pkfg;s fd yksd
                                                         m|eksa dks ;ksX; ,oa vuqHkoh
                                                         inkf/kdkfj;ksa dks ysus ds fy,
                                                         ck/; dj nsaA ;fn vko';d gks
                                                         rks Hkkjr ljdkj ls Hkh bl
                                                         fo'k; esa vuqjks/k fd;k tk
                                                         ldrk gSA
 3       6-4          14      X`g ¼vk0½    fcgkj
                                   78




     6-6     15   fo0             vkj{kh
                                  lsokA
4    8-6     18   d`f"k foHkkx    fcgkj d`f"k  ¼1½ flok; fo'ks"kK inksa dks        Lohd`r
     8-7                          lsok         NksM+ dj tgka mPprj ;ksX;rk
                                               ,oa esfjV dh vko';drk gks
                                               vksj ;fn ml ;ksX;rk ds
                                               inkf/kdkjh laoxZ esa miyC/k u
                                               gks] oxZ ¼1½ ds in ij lh/kh
                                               fu;qfDr ugha dh tk;A
                                               ¼2½      d`f"k    foHkkx      ,d    Lohd`r
                                               lqfu;ksftr rkSj ij izf'k{k.k
                                               nsus dh O;oLfkk djs rkfd u;s
                                               rdfud dk m|ru Kku
                                               lfgr izf'kf{kr O;fDr laoxZ esa
                                               gh gks ldsA
                                               ¼3½ lsok fu;ekoyh dkQh              Lohd`r
                                               iqjkuh gks x;k gSA fcgkj d`f"k
                                               lsok fu;ekoyh dh m|ru ,oa
                                               iqujh{k.k djus dh fn'kk esa
                                               d`f"k foHkkx vfoyEc vko';d
                                               dkjZokbZ djsAa
5    9-4     21   i'kqikyu        fcgkj        Ik'kqikyu foHkkx d`I;k bl ckr       Lohd`r
                  foHkkx          i'kqikyu     dh leh{kanchan djs fd oxZ ¼1½
                                  lsok A       ,oa mPprj inksa ij lh/kh HkrhZ
                                               }kjk fu;qfDr dh izfØ;k
                                               lekIr dch tk ldrh gS
                                               vFkok ughaA
5A   10-4    22   d`f"k foHkkx    eRL; lsok ¼1½ eRL; foHkkx bl ckr dh              Lohd`r
                                               xgu leh{kk djs fd D;k
                                               vko';d gS fd mPprj Lrj ds
                                               inksa dks lh/kh fu;qfDr }kjk gh
                                               Hkjk tk;A
                                               ¼2½ bl ckr dh Hkh foHkkx            Lohd`r
                                               leh{kk dj ys fd D;k xgu
                                               ,oa O;kid lsokUrxZr izf'k{k.k
                                               ¼Intensive and extensive
                                               in-service training) dh
                                               O;oLFkk dh tk ldrh gS ;k
                                               ugha rkfd laoxZ esa gh izf'kf{kr
                                               O;fDr miyC/k gks ldsA
6    11-6    25   f'k{kk foHkkx   fcgkj f'k{kk Lfefr ds fopkj ls oxZ ¼1½ esa       Lohd`r
                                  lsok         lh/kh fu;qfDr ek= fo'ks"kK inksa
                                               ij rHkh gksus pkfg, tc laoxZ
                                               esa ml ;ksX;rk ds inkf/kdkjh
                                               miyC/k u gks] vU;Fkk lHkh in
                                               izksUufr }kjk Hkjk tkuk pkfg,A
                                               f'k{kk foHkkx vR;Ur xaHkhjrk ls
                                               bl ckr dh leh{kk dj ys
                                               rkfd vojks/k dh leL;k fdlh
                                               gn rd nwj dh tk ldsA
7    11-10   25   f'k{kk foHkkx   fofo/k laoxZ ¼1½ f'k{kk foHkkx vfHk;arkvksa ds   Lohd`r
                                               inksa dks yksd fuekZ.k foHkkx ds
                                               fcgkj vfHk;a=.k lsok laoxZ esa
                                               lafufn"V djk ns vkSj
                               79




                                         vfHk;arkvksa       dh        lsok
                                         izfrfu;qfDr ds rkSj ij ysA
                                         ¼2½ MkDVjksa ds nks inksa dks        Lohd`r
                                         fcgkj LokLF; lsok laoxz esa
                                         'kkfey dj fy;k tk, ,oa
                                         vko';drkuqlkj mudh lsok,a
                                         izfrfu;qfDr ds vk/kkj ij yh
                                         tk;A
                                         ¼3½ fofHkUu in tSls f'k{kd           Lohd`r
                                         ¼usrjgkV ds f'k{kdksa dks
                                         NksM+dj½] LVSfM;e eSustj
                                         bR;kfn ds inks dks fcgkj f'k{kk
                                         lsok laoxZ esa 'kkfey dj fy;k
                                         tk; vkSj laoxhZ; inkf/kdkfj;ksa
                                         dks gh bu inksa ij fu;qDr
                                         fd;k tk;A
8           37   ;kstuk       fcgkj      Lkaf[;dh foHkkx bl ckr dh            Lohd`r

¼lkaf[;dh½ lkaf[;dh leh{kk dj ys fd mi&funs'kd lsok ,oa la;qDr funs'kd ds Lrj ds inks dks 50 izfr'kr lh/kh HkrhZ }kjk fu;qfDr dh tks izfØ;k gS mls lekIr fd;k tk; ;k lh/kh HkrhZ ds izfr'kr dks gh ?kVk fn;k tk;A"

9 15-6 32 ogh ogh Lkf[;dh foHkkx fcgkj Lohd`r lkaf[;dh lsok fu;ekoyh dks vfoyEc cukus dh fn'kk esa dkjZokbZ djs vkSj 'kh/kzkfr'kh/kz bldks vfUre :i nsA 10 15-7 32 ogh ogh Lkaf[;dh foHkkx bl foUnq ij Lohd`r fopkj dj ys fd la;qdr funs'kd ,oa mi&funs'kd ds lHkh in eq[;ky; esa gh dsfUnzr D;ksa gS rfkk muds fodsUnzhdj.k djus ds iz'u ij xaHkhjrkiwoZd fopkj dj fu.kZ;

                                         fy;k tk;A
11   16-2   32   ou foHkkx    fcgkj ou   ou foHkkx fuEufyf[kr foUnqvksa       Lohd`r
                              lsok       ij fopkj djs %&
                                         ¼1½ fcgkj ou lsok ds
                                         inkf/kdkfj;ksa dks vU; foHkkxksa
                                         ,oa       yksd      m|eksa     esa
                                         mnkjrkiwoZd izfrfu;qDr fd;k
                                         tkuk pkfg,A
                                         ¼2½ fcgkj ou lsok ds                 Lohd`r
                                         LFkkukiUu in dks ¶yksfVx in
                                         ugha jgus nsuk pkfg, rFkk ,sls
                                         inksa dks fcgkj ou lsok ;k
                                         vf[ky Hkkjrh; ou lsok ds
                                         laoxZ esa ys ysuk pkfg,A
                                         ¼3½ fcgkj ou lsok ds laoxhZ;         Lohd`r
                                         inksa dks ;FkklaHko ou lsok ds
                                         inkf/kdkfj;ksa }kjk gh Hkjk
                                         tkuk pkfg,A jstj dh
                                         lgk;d ou laj{kd ds in ij
                                         izksUUfr gsrq U;wure fu/kkZfjr
                                80




                                           vof/k 16 o"kZ gSA 16 o"kZ dh
                                           bl lhek&vof/k dks ?kVkus dh
                                           mi;qDrrk ij fopkj fd;k
                                           tk;A
12    15-3   33   m|ksx      m|ksx lsok ¼1½ m|ksx foHkkx bldh tkap            Lohd`r
                  foHkkx                   dj ys fd mPprj inksa dks
                                           m|ksx lsok ds inkf/kdkfj;ksa
                                           dh izksUufr }kjk gh Hkjk tk;A
                                           lh/kh HkrhZ ,oa vU; foHkkxksa ds
                                           inkf/kdkfj;ksa dh fu;qfDr
                                           fdlh [kkl in ij rHkh dh
                                           tk; tcfd ml ;ksX;rk ,oa
                                           esfjV ds inkf/kdkjh laoxz esa
                                           miyc/k u gksA
                                           ¼2½ lsok fu;ekoyh ;Fkk'kh/kz
                                           cuk;h tk;A
12A   17-4   33   ogh        ogh           m|ksx lsok ds inkf/kdkfj;ksa       Lohd`r
                                           dh ckg~; lsok esa mnkjrkiwoZd
                                           izfrfu;qfDr djuk pkfg, rkfd
                                           mu fjfDr;ksa dh J`a[kyk esa
                                           izksUufr nh tk ldsA
13    18-8   36   Je ,oa     fu;kstu ,oa fu;kstu ,oa izf'k{k.k lsok           Lohd`r
                  fu;kstu    izf'k{k.kA    fu;ekoyh dh izkFkfedrk ds
                  foHkkx                   vk/kkj ij vfUre :i fn;k
                                           tk;A
14    19-2   37   uxj ;kstuk Vkmu          Lksok fu;ekoyh 'kh/kzkfr'kh/kz     Lohd`r
                  laxBu      Iykfux        cuk;h tk;A
                             laxBu
15    24-2   38   lkekU;                   lHkh foHkkxksa esa ,d fof'k"V      Lohd`r
                                           izdks"B lsy xfBr fd;k tk;A
                                           bl izdks"B ds izHkkjh foHkkx ds
                                           ,d ojh; inkf/kdkjh jgsxa sA
                                           budk izeq[k dk;Z ;g gksxk fd
                                           fcuk fdlh foyEc ds jkT;
                                           lsok ds inkf/kdkfj;ksa dh
                                           fu;ekuqlkj ns; lqfo/kk,a le;
                                           ij izkIr gksrh jgsAa
16    24-3   38   lkekU;                   cgqr&lh         lsokvksa      dh   Lohd`r
                                           fu;ekdoyh ugha ugha cu
                                           ldh gSA vusd lsok fu;ekoyh
                                           dkQh iqjkuh gks x;h gSA
                                           lacaf/kr foHkkx bl vksj /;ku
                                           nsdj lsok fu;ekoyh dks
                                           izkFkfedrk ds vk/kkj ij
                                           iqujhf{kr dj vfUre :i ns A
17    24-7   39   lkekU;     izf'k{k.k ,oa lsokjr ljdkjh lsodksa dh           Lohd`r
                             uohdj.k       dk;Z&dq'kyrk c<+kus ds fy, &
                             ikB~;ØeA      ¼d½ lsokjr lsodksa ds izf'k{k.k
                                           dh orZeku O;oLfkk dks iqu%
                                           tkap dj foLrkfjr fd;k tk;
                                           rFkk uohdj.k ikB~;Øe ykxw
                                           djus dh Hkh O;oLFkk dh tk;A
                                           ¼[k½ izf'k{k.k vfuok;Z fd;k
                                           tk; vkSj izf'k{k.k esa lQyrk       Lohd`r
                                           izkIr djus ij gh n{krk jksd
                                           ikj djkus ;k osru oaf) nsus
                                          81




                                                      dh vuqefr nh tk;A
                                                      ¼x½ jkT; esa ;k jkT; ds ckgj
                                                      miyC/k izf'k{k.k lqfo/kk dk iwjk Lohd`r
                                                      ykHk mBk;k tk;A
                                                      ¼?k½ lk/kkj.kr% fdlh izf'kf{kr
                                                      inkf/kdkjh dks fdlh ,sls in Lohd`r
                                                      ij LFkkukUrj.k ugha fd;k tk;
                                                      ftl in dk laca/k muds
                                                      izf'k{k.k ;k fof'k"Vrk ds fo"k;
                                                      ls fHkUu gksA
18    24-8      40        lkekU;          Lksok       jktdh; lsok laoxksZ dh
                                          U;k;kf/kdj. leL;kvksa dks fu"i{k hkko ls
                                          k           tkap dj muds fujkdj.k gsrq
                                                      ,d LFkk;h ;a= ds :i esa
                                                      vfoyEc           ,d        lsok
                                                      U;k;kf/kdj.k dh Lfkkiuk dh
                                                      tk;A

41. From a bare reading of the aforesaid resolution, it would become clear that the same was as a fall out of report of Sharan Singh committee. It is admitted position that the said committee was formed in the month of March, 1976 as would be apparent from the introductory paragraph of the report of the committee:-

"I. INTRODUCTORY 1.1 The Committee was set up in March, 1976 with Shri Saran Singh, Member, Board of Revenue and Administrative Reforms Commissioner as Chairman and Shri N.D.J. Rao, Chairman, Bureau of Public Grievance and Shri Nandeshwar Prasad, Financial Commissioner as Members of the Committee, Shri S. B. Bhowmik, Deputy Secretary, Finance Department functioned as Secretary and Governor to the Committee. Subsequently, Government nominated Shri F. Ahmad, Additional Chief Secretary as a Member of the Committee in place of Shri Rao. The Government Resolution constituting the Committee has been incorporated as Appendix A to this Report 1.2. The terms of reference of the Committee were as follows:-

Þfcgkj vlSfud lsok esa izksUufr dk ekxZ iz'kLr djus gsrq duh; izoj 82 dksfV in 20 izfr'kr] ojh; izoj dksfV in 12-50 izfr'kr ,oa ojh; vij lekgRrkZ dk in 2-50 izfr'kr dh Lohd`fr jkT; ljdkj us nh gSA ;gh izfr'kr fcgkj vfHk;a=.k lsok esa Hkh duh; ,oa ojh; izoj dksfV inks d a s fy;s ykxw fd;k x;k gSA blh vk/kkj ij fofHkUu jkT; lsok la?kksa ls bl iz dkj dh ekax vkrh jgh gS fd muds laoxksZ esa mi;qZDr izksUufr ds volj dh deh ds dkj.k mPp Lrj ij vojks/k iSnk gks x;k gS] ftls nwj fd;k tk;A 2-1 vr% fofHkUu jkT; lsok laoxksZ dh 'kfDr ,oa orZeku izksUufr ds volj dks n`f"Vdks.k esa j[kdj vojks/k dh leL;k dk ewY;kadu djus ,oa bl vojks/k dks nwj djus ds rjhds ,oa izksUufr ds voljksa dks iznku djus ds mn~n's ; ls fuEufyf[kr inkf/kdkfj;ksa dh ,d lfefr dk xBu fd;k tkrk gSA %& ¼1½ lnL;] jktLo i"kZn~ - v/;{k! ¼2½ v/;{k] yksd f'kdk;r O;wjks& lnL;kA ¼3½ foRr vk;qdr & lnL;k!Þ 1.3. The terms of reference confined the task of the Committee to the assessment of stagnation and suggestions for bringing about improvement in the promotional prospects of the duly constituted State Services. The Committee‟s examination and recommendation have accordingly been kept confined to the State Services, leaving out of consideration such of the gazetted posts do not constitute a State Service or have not been encadred.

1.4 The Committee held 15 meetings in all. In the first meeting, the procedure was finalized and the Administrative Departments concerned were requested to furnish comprehensive notes and statistical information in the prescribed proforma, together with the memoranda of the Service Associations concerned within the purview of the terms of reference. A copy of the letter issued by the Committee in this behalf is reproduced as Appendix B. Subsequently, the Committee obtained further information regarding the work- load, duties and responsibilities, etc., in order to assess the extent to which the improvement of promotional prospects will be consistent with the need and requirement of public service and efficiency in administration.

1.5. The comprehensive notes and statistical materials 83 received from Administrative Department as well as the memoranda of the Service Associations concerned were analyzed in detail and discussed in the Committee. The Committee also held detailed discussion with the senior officers of the department concerned and obtained clarification from them wherever necessary. The Committee also heard the representatives of the Service Associations. These discussions with the departmental officers as well as representatives of the Associations have been of appreciable help to the Committee in determining the issues and their implications. 1.6. The Committee‟s conclusions have been arrived at on the basis of facts and figures furnished by the departments concerned. As the committee had no independent machinery for the collection of such details, the information and clarification furnished by the departments concerned have been accepted as substantially correct for the present purposes of the Committee. The Committee does not, therefore, accept any responsibility for any mistake or discrepancy that might be discernible due to error in presentation of facts and figures by the departments concerned."

42. In the opinion of this Court, the terms of reference of the committee as quoted in paragraph no. 1.2 of the report would leave nothing for speculation that it was meant for State Service Cadre. The need for such committee arose because for Bihar Civil Service, the Government had already provided 20%, 12.50% and 2.50% as post of Junior Selection Grade, Senior Selection Grade and Super Selection Grade for removal of stagnation by way of giving promotion and therefore, when grievance were raised also on behalf of the other states service, the State Government had constituted a Three Men Committee 84 headed by the Member Board of Revenue to make assessment of stagnation and suggestion for bringing about improvement in promotional prospect of the duly constituted state services. The very fact that the committee had confined its recommendation to state services leaving out consideration of even other gazetted post not constituting state services will leave nothing for speciulation for this Court to hold that the same was infact never meant for teachers of BSES who were neither holders of gazetted post nor did constitute a state service. At this place, it has to be pointed out that the entry in all these state services which were under the zone of consideration before the Sharan Singh Committee are made through the combined competitive examination conducted by Bihar Public Service Commission and when one of such services namely Bihar Civil Services had been given better promotional prospect by way of removal of stagnation, the others constituting the state services having entered on the basis of same competitive examination had felt demoralized in the matter of removal of the stagnation and that is how Saran Singh Committee who at that point of time was Additional Member Board of Revenue and later on at the time of submission of report on 11.12.1976 had become the Secretary in the department of Steel, Ministry of Steel and Mines, Government of India had sought to make its recommendation confined to the State Service only. It is in this background that the recommendation of the committee has to be 85 understood wherein analysis of services problems and recommendations on Bihar Finance Service, Bihar Labour Service, Bihar Judicial Service, Bihar Police Service, Bihar Jail Service, Bihar Animal Husbandry Service, Bihar Fisheries Service, Bihar Education Service and Bihar Co- operative Service, Bihar Excise Service, Bihar Registration Service, Bihar Statistical Service, Bihar Forest Service, Bihar Industries Service were separately discussed for removal of stagnation. As the case in hand relates to Bihar Education Service, it would be necessary to quote the recommendation of the Saran Singh‟s Committee which reads as follows:-

(9) Bihar Education Services.

11. 1. The Bihar Education Service is comprised of the following three separate wings:-

(a) General Cadre.

(b) Specialized Cadre.

(c) Miscellaneous Cadre.

(A) General Cadre 11.2 The present position of the above cadre is indicated in the statement below:-

Serial No. Strength pay- Existing Adverse time Remarks Designation of post scales percentage taken in getting promotion 1 Basic posts -Class 404 Rs. ... ....

  II Senior                         510-
                                    1,155
  2. Ist layer of        62         620-      12.83        16-19
  promotion- Class I                1,415                  Years
  posts
  3.     2nd layer of    14         1,060-    2.90         10-12
  Promotion- Senior                 1,580                  years
  Selection     Grade
  posts.
  4. 3rd layer of        ...          ....        ...            ....              ..
  promotion -Super
  Selection     Grade
                                       86




post
5.   Director      of   3            2,050-       0.62                         Ex-
Education                            2,450                                     cadre
                                                                               posts
Total                   483                       16.35

11.3 The General Cadre includes 404 Class II basic posts against which the promotion posts number only 79. The total percentage of promotion posts works out to 16.35 per cent. There is provision for 25 per cent direct recruitment at the Class I level. Thus only 75 per cent of Class I posts is available for promotion of Class II Officers. If the Direct Recruits are left out, the total percentage of higher posts will be reduced to 13.25 per cent only. It takes about 16 to 19 years for a Class II Officer to get promotion in the Class I post and another 10 to 12 years for promotion to Senior Selection Grade Posts. There is no Supertime Selection Grade posts in this service in the scale of Rs.1,340-1,870.

11. 4 The facts explained above establish beyond doubt that the stagnation is rather acute. The problem is to what extent the percentage of promotional posts can be raised consistent with the need and requirement of the public service and matter from different angles, the Committee procedure or pattern. Examining the matter from different angles, the Committee would suggest the following remedies for improving the promotional prospects of the members of the general cadre of the Education Service:-

(a) A junior Selection Grade with posts equal to 5 per cent of the entire cadre should be provided for in the scale of Rs.620-1,325.

(b) The existing percentage of promotion posts at other levels may be enhanced as below:-

                                                      Existing            Proposed
                                                      Percentage          Percentage

         (1) Class I posts (Rs.620-1,415).........                 12.83            13.00
        (2) Senior Selection Grade posts(Rs.1,060-1,580)...          2.90         3.50
        (3) Director of Education                 ...                0.62         0.62

11.5 As a result of the increased percentage suggested above, the expected improvement in the promotional avenues is indicated in the comparative statement below:-

Ser Designation Percentage of Strength No. of Addition ial of posts and promotion of posts additiona al cost No. pay-scales Existing Proposed Existing Proposed l posts to involve be ed percentage percentage strength strength upgraded or reduced 1 2 3 4 5 6 7 8

1. Basic Class II .... .... 404 376 (-)28 Rs.

Senior (Rs.510- 1,155).

2. Junior ... 5.00 ... 24 24 Selection Grade (Rs.

620-1,325).

3. Class I posts 12.83 13.00 62 63 1 60,000 (Rs.620- 1,415)

4. Senior 2.90 3.50 14 17 3 Selection Grade (Rs.1,060- 1,580)

5. Director of 0.62 0.62 3 3 ..

Education (Rs.2,050- 2,450).

TOTAL 16.35 22.12 483 483 ... 60,000 11.6. While analyzing the causes of stagnation, the Committee noticed that one of the main reasons for the promotion bottleneck in the General Cadre is that provision of 25 per cent direct recruitment at the Class I level. In the opinion of the Committee, direct recruitment should be confined only to specialists posts. Normally all vacancies in the Class I cadre should be filed 88 by the promoting Class II officers and direct recruitment should be resorted to only when suitable officers of requisite qualification and merit are not available. The Committee would, therefore, suggest that this matter should be carefully examined by the Education Department as a long-term measure to case the incidence of stagnation.

B. Posts in specialized category 11.7 The above category includes posts in specialized institutes like Sanskrit College, Nava Nalanda Maha Vihar, Mithila Institute, Prakrit Institute, Persian Institute etc. There are altogether 93 posts out of which 79 posts are in Class II Senior, II posts in Class I and 3 posts in Senior Selection Grade. The percentage of promotion posts thus works out to about 15 per cent. 11.8. There is stagnation in this cadre mainly because an officer with specialization in a particular subject cannot be promoted to a higher post requiring specialization in a different subject. To illustrate the point, for obvious reasons, a Class II officer working in the Prakrit Institute cannot be considered for promotion to a Class I vacancy occurring in the Persian Institute. Class I or Senior Selection Grade posts of this category cannot be filed by promotion only when Class II officers with the required qualification are available. The prospect of promotion of officers in the specialized category is, therefore, rather uncertain. As the duties and responsibilities of holder of these posts are not inter-changeable, the difficulties in the way of promotion cannot be removed even by increasing the percentage and number of the higher promotion posts.

11.9. It is was suggested by the officers of the Education Department that holders of the posts in this category should be allowed time- bound promotion. Since the principle of allowing time-bound promotion has not been accepted by the State Government in case of any service as yet, and considering its likely repercussions on other services, the Committee is unable to agree to this suggestion.

C. Miscellaneous Cadre.

11.10 This service consists of 59 posts of different categories like Teachers, Engineers, Doctors, Stadium Manager, etc. and, excepting the teachers of Netarhat School who have adequate prospects of promotion within the cadre, most of the member of the cadre hold isolated posts with no definite prospect 89 of promotion. No promotion posts can be provided for because of the isolated nature of their job.

In order, however, to minimize the hardships in their case, the Committee would like to make the following suggestion for consideration of the Education Department:-

(1) Education Department may get the posts of Engineers included in the cadre of the Public Works Department and obtain their services on deputation basis.

(2) The two posts of the doctors may also be got included in the Health Service and the service of doctors obtained on deputation basis. (3) The remaining posts should be included in the General cadre and manned by officers of the Bihar Educational Service as far as practicable."

43. In view of the clear-cut discussions and considerations of Bihar Education Service laying down its zone of consideration to be only the general cadre, specialized cadre and miscellaneous cadre, one has to understand the whole recommendation in the context it was made. It has to be further noted that the committee had normally identified 483 posts of general cadre, 93 posts for the specialized cadre and 59 posts of miscellaneous cadre and it is in this miscellaneous cadre of teachers, engineers, professors, stadium manager etc, that it was recommended that while engineers should be placed in the cadre of Public Works Department and the doctors in the cadre of Health Services and the remaining post i.e. the post of stadium manager and teachers in BES having no definite prospect of promotion need to be included in the general cadre and manned by the officers of the of Bihar Education Service as far as practicable.

44. Since it is this expression „teachers‟ used in paragraph no.11.10 in the report of the Saran Singh Committee which has been made the subject matter of unending debate at the instance of the counsel for the appellants, this much has to be also understood here itself that Bihar Education Service is a duly constituted service for which the State Government by notification S.O. 600 dated 2nd March, 1974 in exercise of powers under proviso to Article 309 of the Constitution while superseding earlier rules published by the Education Department Resolution No. 6524 dated 15th November, 1939 and Education Department notification no. 968 dated 4th May, 1944 had made rules for regulating recruitment to the Bihar Educational Service Class-1 and Bihar Educational Service Class-2 knows as "Bihar Educational Service (Class-

1) and the Bihar Educational Service (Classe-2) Recruitment Rules, 1973 Rule 3 & 4 thereof being relevant is quoted hereinbelow:-

"3. Source of recruitment:- The Bihar Educational Service (Class 1) and the Bihar Education Service (Class II) shall be recruited-

(a) By direct recruitment through combined competitive examination in accordance with the Rules in Part II, and/or

(b) By open advertisement in accordance with the rules in Part III and/or (C)By promotion in accordance with the rules in Part IV, and/or

(d) By direct recruitment (Special recruitment) in accordance with the rules in Part V.

4. Fixation of vacancies:-

(1) The Governor shall decide in accordance with law these rules in each year the number of vacancies in each of the services to be filled in that year by direct recruitment, by open advertisement, through special recruitment and/or by promotion respectively.

Provided that vacancies in the Bihar Educational Services Class 1 in any one year excepting those specified in Appendix D shall not be filled by direct recruitment unless the Governor is satisfied that suitably qualified and experienced officers are not available for promotion. When a vacancy in the Bihar Educational Service Class 1 specified in Appendix D occurs the Governor shall consider whether the best candidates for the post will be available by promotion from amongst those working in the institute(s)/organization(s) concerned or by direct recruitment and decide whether the post shall be filled up by promotion or direct recruitment.

(2) Appointments to the posts of District Superintendent of Education, Sub-Divisional Education Officer, Principal, Primary Teacher‟s Education College, District Inspectress of Schools and allied posts of inspecting and administrative nature shall he made as follows:-

(i) by direct recruitment in accordance with the rules in Part II - 30% of posts.

(ii) By open advertisement in accordance with the Rules is Part III - in 50% of the posts.

(iii) By promotion of officers of the Upper Division Of the Subordinate Educational Service (inspection and alliedBranch) in accordance with the rules in Pat IV. (3) Appointment to the posts of Principal of Government High Schools, including Sarvodaya Schools (both for male and female) shall be made as follows:-

 (i)     By promotion                                            -
               92




        of      officers                            in 80% of
        Upper                                       the posts
        Division of the
        Subordinate
        Education
        Service
        (Teaching
        Branch),      in
        accordance
        with the rules
        in part IV.
 (ii)   By          open
        advertisement                                      -in
        in accordance                               20% of the
        with the rules                              posts.
        in part III

(4)       Appointments to the posts of Subject Teachers in

the Training Colleges, Government College of Health and Physical Education, Institutes of Science, Education and English, Director, Professors and Lecturers, Research Fellows in the various Research Institutes, Research cum Teaching Institutes such as Nalanda Mahavihara, Institute of Prakrit and Jainology, K. P. Jaiswal Institute, Mithila Sanskrit Research Institute, Rashtra Bhasha Parishad, Sanskrit College, Madrasa Islamia Shamsul Huda, Reformatory School and Pilot Centre for Juvenile Delinquents shall be made by open advertisement in accordance with the rules in Part II. Provided that where suitably and fully qualified ex experienced candidates in the desired subjects are available to fill the vacancy by promotion, their cases for promotion will also be considered. The names of any institute of similar type may be included in this group from time to time by the orders of the Governor published in the official gazette.

(5) Where it is not possible to wait for direct appointment to take place by following the normal procedure and circumstances so justified, recruitment to the posts of Bihar Educational Service Class I or Class II 93 may be made in accordance with the provisions contained in Part IV of these rules."

45. The scope of the Rules would therefore leave nothing for this Court to allow the counsel for the appellants to make speculation that there was no definite prospect of promotion for member of SES including all the teachers of the zila schools and other Government schools by way of their appointment to principals of Government High Schools including Sarvodaya schools, so as to be included in terms of reference and report of Sharan Singh Committee which as noted above was for only State Level Service and their absence of promotional prospect as per with Bihar Civil Service.

46. Judged in this background, this Court has no hesitation in holding that the Saran Singh Committee never was meant for teachers of SES to be included in BES. This aspect in fact becomes further clear from paragraph no. 11.10 of the report where the committee is said to have considered only 59 posts of Miscellaneous Cadres of BES only in different categories including teachers, engineers, professors, stadium managers etc. Consequently, the Resolution of the State Government dated 11.4.1977 in its schedule at serial no.6 & 7 while giving effect to the recommendation in paragraph no. 11.6 and 11.10 has to be read only in that context.

47. The word „teacher‟ used in the Saran Singh Committee or its consequential resolution of the Finance Department cannot be read in isolation in the generic sense, inasmuch as, if that be the interpretation as has been canvassed by learned counsel for the appellant, then why only teacher of SES and not each and every teacher of any Government institution be deemed to have been included in BES. It is not in doubt that not only the Government schools have teachers but there are also nationalized high schools who also have teachers and why only teachers of high schools, there are other Government middle school and primary school and basic schools who also have teachers. Therefore in view of the fact that neither in the report of Sharan Singh nor in the resolution of Finance department there is any mention about teachers of SES, such use of expression of 'teacher' in paragraph no. 11.10 of the report of Committee has to be always understood that it was actually meant for such teachers who were already in BES working on isolated posts and had no channel of promotion.

48. In the opinion of this Court, the ingenious mind by some persons of SES in the year 1998 after 21 years of the resolution of the Finance Department dated 11.4.1977 to seek nod of approval from this Court that the teachers meant the teachers of SES was based on their wild imagination and to put the records straight this Court also did not make any such declaration in the order dated 2.2.2000 in C.W.J.C. No. 95 12122/1998 that the teachers of SES were covered by the Government resolution dated 11.4.1997. In fact, all that was said in the said order was only as follows:-

"From the resolution no. 3521/F dated 11.4.1977 it appears that a committee was constituted to remove the stagnation and to make avenues of promotions to the members of the different state service. On the recommendation of the said committee, the decision was taken by the state vide aforesaid resolution of the Finance Department dated 11.4.1977. In regard to different service while one or other decision taken, so far as the services under the education department is concerned, the decision has been shown at serial no. 7 of appendix-1 attached to the said resolution. At Clause- 3 therein, the State Government decided to merge cadres of the teachers except the teachers of Netarhat school withby Bihar education service.

From the enclosures attached to the writ petitions, it appears that the formal orders of merger have not been issued and matter is still pending with the state. In the meantime, separate gradation list has been published for one or other teaching cadre.

In respect of some other services, though the aforesaid resolution dated 11.4.1977 has been implemented but no formal order merging the other teaching cadres with the Bihar Education Service has been issued, nor any notification of individual merger have been issued by the State.

In the circumstances, I direct the commissioner-cum- Secretary, Secondary, Primary and Mass Education. Government of Bihar to act upon the Government decision contained in Resolution dated 11.4.1977, so far it relates to the Education Service of the Education Department."

49. As a matter of fact, this Court had immediately clarified its direction in the same order dated 2.2.2000 by leaving the matter to be decided by the State Government wherein it was observed that :-

If individual order of merger of posts with the Bihar Education Service required to be passed, the same be passed within a period of six months from the date of receipt/production of a copy of this order. If so required, the notification relating to merger of individual members in the cadres be also issued, within four months thereof.

It is only after the merger of the individuals with the Bihar Education Service, the authorities will prepare the combine gradation list.

50. The non-committal sense of the order of this Court dated 2.2.2000 becomes further clear when this Court called upon by set of other teachers of CWJC No. 8147 of 1999, the petitioners of present contempt petition, MJC No. 251 of 2001, had refused to issue any direction as sought for removal of pay anomaly by giving them same pay- scale of BES by holding as follows:-

"So far as the prayer of the petitioner- Smt. Ratan Prabha and others of C.W.J.C. No. 8147/99 relating to pay anomaly is concerned, they may represent the matter before the appropriate Pay Anomaly Removal Committee through the proper authority. However, in their case, if the resolution dated 11.4.1997 is applicable, they may derive the benefit of the direction as given above".

51. Thus in the opinion of this Court, the aforesaid order dated 2.2.2000 in no way can be said to be a pronouncement of this Court that 97 the appellant teachers of SES were the teachers for whom resolution of Finance Department dated 11.4.1977 was meant and was sought to be implemented. Once this aspect of the matter becomes clear, the order of the Division Bench dismissing the appeal of the State by order dated 27.11.2000 recording that the State had no reason to be aggrieved by the order of this Court dated 2.2.2000 as the only direction of to take decision in terms of the resolution dated 11.4.1977 gets well explained. The order dated 27.11.2000 in LPA No. 980 of 2000, therefore, also cannot be read in the manner in which Mr. Kanth had laid great stress by stressing the concluding word of the order recording dismissal of the appeal of the State and thus affirming the self derived conclusion from the order of the learned single Judge dated 2.2.2000. For the same reason, this Court is also not in a position to accept the submission of Mr. Kanth that the order of the Apex Court dated 16.4.2001 had to be read as affirmance of the view of the learned single Judge dated 2.2.2000 that the Finance Department resolution dated 11.4.1977 was meant for the teachers of SES. The Supreme Court had in fact after perusal of the resolution, which was directed to be produced before it as recorded in the order dated 3.4.2001 in SLP No. 4937-38 of 2001, had left the matter totally in the hand of the State Government, inasmuch as, all that was recorded therein was that the direction of the High Court was to implement the resolution dated 11.4.1977 "in the manner it was meant to be implemented." The 98 Supreme Court did not say a word that it was to be implemented for teachers of SES and therefore, this Court would not find any merit in the submission of the learned counsel for the appellants that the first round of litigation starting from the order of the High Court dated 2.2.2000 and ending with the Apex Court dated 16.4.2001 in SLP No. 4937-38 of 2001 was by itself a pronouncement of the rights of the teachers of SES determined for their being included in BES by way of implementation of resolution dated 11.4.1977.

52. On the other hand whatever has been argued by Mr. Kanth and followed by other senior counsels is to be taken to its logical conclusion, a question would then arise as to why the teachers of SES could not get a relief in the contempt application filed by them directly before the Apex Court. It has to be noted that the Apex Court had dismissed the contempt application of the members of SES by the order dated 18.2.2002 in the contempt petition no. 44-45 of 2002 whereafter only CWJC No. 8679 of 2002 was instituted by Janardhan Rai a retired teacher of SES coming forth with a grievance that he was not paid his salary in the pay-scale of BES. One fails to understand on what basis Janardhan Rai, the appellant herein L.P.A. No. 947/2007 and the writ petitioner of CWJC No. 8679 of 2002 had imagined of his being entitled for payment of salary in BES pay-scale ?

53. In this background, if this Court would peruse the interim order or the final order passed in CWJC No. 8679 of 2002, it becomes more than clear that even when there was no declaration by this Court in the order dated 2.2.2000 in CWJC No. 12122 of 1998 even then by the first order passed in CWJC No. 8679 of 2002 it was inferred so and thereafter appellants could create a mole out of mountain for getting the order dated 2.2.2000 implemented by projecting as if by order dated 2.2.2000, the learned single Judge had already held the teachers of SES to be covered and thus entitled for their being merged in BES.

54. This Court regretfully can not permit the appellants to rely on any of the order passed in CWJC No. 8679 of 2002 inasmuch the said writ petitioner, to say the least is wholly devoid of any merit and ought to have been not even entertained, inasmuch as its writ petitioner, Janardhan Rai, a retired teacher of SES had no claim to get his payment of salary in a pay-scale in which he was neither appointed nor ever placed by any Government order. The manner in which the appellant Janardan Rai had induced the litigation in the second round by filing CWJC No. 8679 of 2002 and an intervention was made by the petitioner‟s association CWJC No. 12122 of 1998 does not create a very happy situation, inasmuch as, the officials of the Education Department were virtually throttled at their behest by repeated orders of their personal appearance and threat of being punished for contempt to pass the order of merger of the posts of teacher 100 of SES in BES on 7.7.2006.

55. One fails to understand as to how noting in a file could have been made subject mater of a suo-motu contempt at the instance of the petitioner Janardan Rai. It is well settled by the judgment of the Apex Court in the case arising out of State of Bihar itself, State of Bihar & Ors. Vs. Kripalu Shankar & Ors. reported in AIR 1987 SC 1554 ~ 1987 (3) SCC 34 that notings in file does not constitute contempt. The entire contempt proceeding in fact in CWJC No. 8679 of 2002 was thus unsustainable only on the ground of notings in file by Sri Rameshwar Singh, Additional Finance Commissioner who had all the reasons and the rights to record his view in the file. The Courts are not supposed to examine the contents of the file to make out a case of contempt.

56. Judged in this background, this Court would not find any of the orders passed in CWJC No. 8679 of 2002 to be a pronouncement of facts or determination of the rights of the teachers of SES for their merger in BES. As a matter of fact, this aspect of the matter was fully explained by the Chief Secretary in his report wherein it was conclusively shown from the analysis of the records that resolution of the Finance Department dated 11.4.1977 was meant only for specified teachers under the BES only and not for the teachers of SES whereafter the matter should have been left at rest. It is in this context that this Court would also read the order of the Apex Court to be absolutely in the line of the submission 101 made by the learned Advocate General wherein the Apex Court having noted the stand of both the parties had recorded as follows:-

"-------At the end of the day, we are satisfied that whether the implementation has been done in the manner required by the Resolution or not is for the High Court to decide since the High Court is in seisin of the contempt petition. Hence, we feel that it is not necessary for us to interfere in the matter--------"

57. Thus in the opinion of this Court prior to the aforesaid order of the Apex Court dated 19.4.2006, admittedly no final determination was ever made by this Court on this issue of merger of posts of teacher of SEs in BES Class-II and the correctness and/or properity of the orders passed in C.W.J.C. No. 8679/2002 were itself left to be decided by this Court.

58. A question, therefore, would arise how did the merger notification dated 7.7.2006 come into existence. It is not very difficult fo find the answer. The repeated orders of personal appearance passed by this Court both in everlasting suo moto contempt proceedings CWJC No. 8679 of 2002 as also in the LPA no. 65 of 2003 by division bench directing the Chief Secretary, Finance Commissioner, Education Secretary on a number of days, condemning them on their face for writing something in file and placing their view that the Resolution of Finance Department dated 11.4.1977 was never meant for merger for the teachers of SES in BES Class-II had left them with little option but to pass an order for merger of the teachers of SES in BES in the manner in 102 which the same had been interpreted in the various orders passed by the learned Judge in C.W.J.C. No. 8679 of 2002.

59. It is thus very clear to this Court that the merger notification came only on account of threat of contempt as has been noted in the earlier part of this judgment. In fact, the wordings of the order dated 7.7.2006 is itself as clear as a day that such order was passed by the State Government only in view of the different directions given by this Court in course of suo moto contempt proceedings based on non existing direction in the order of this Court dated 2.2.2000 in C.W.J.C. No. 12199/2000.

60. The scope of a direction in an order passed in contempt jurisdiction in excess of the original order passed has been time and again explained by the Apex Court which has held tht it is not open to the court exercising power of contempt to enlarge the scope of the original order. Reference in this connection may be made to the cases of State of J & K vs. Sayeed Zaffar Mehdi reported in 1997(9) SCC 640, S.P. Nanda vs. Pradyunma Kumar Pattanayak reported in 1995 Supl(3) SCC 188. In the latter case it was infact explained that when in the writ petition, no direction had been given to keep providing the writ petitioners the jobs they were said to be holding, or to have ever held, it was beyond the powers of the High Court in a contempt proceedings to have ordered the contempt petitioners to be given jobs.

103

61. When judged in the context of the above principles there is no escape from the conclusion that the learned Single Judge while passing orders in C.W.J.C. No. 8679/2002 directing merger of the posts of teachers of SES in BES Class-II went beyond his jurisdiction in passing such orders. The main order dated 2.2.2000 in C.W.J.C. No. 12199/2000 had no where remotely held that the resolution of Finance Department dated 11.4.1977 was meant exclusively for the posts teachers of SES to be merged in BES Class-II and infact only a direction was given to give effect to the said resolution and therefore the orders passed in C.W.J.C. No. 8679/2002 could not have gone beyond the compliance of the order dated 2.2.2000.

62. Mr. Sanjay Singh, learned counsel for the respondents writ petitioners representing Bihar Education Service Association and its members is therefore correct that whatever orders relating to merger could have been passed by the State Government under threat or coercion of this Court when, that had affected the right of the members of the BES, that could still be assailed, as was done by them, by filing CWJC No. 10091 of 2006. One can very well envisage the plight of the members of BES inasmuch as the merger notification dated 7.7.2006 has been given retrospective effect i.e. from 11.4.1977 and thus service of around 500 persons at best was sought to be expanded by influx of more than 2500 teachers of SES who had already got their retrospective salary fixed and 104 seniority determined in complete violation of Rule 7 of the Statutory Rules, under the threat of the contempt under various orders in CWJC No. 8679 of 2002 filed by Janardan Rai, a retired teacher of BSES. The Association and its members of BES the Respondent writ petitioners therefore could not have remained mute spectators specially when their term and conditions of service was regulated by the Rules laying down the elaborate procedure not only of recruitment either through direct appointment or through promotion but also determination of seniority in the manner prescribed. Thus, their writ application CWJC No. 10091 of 2006 could not have been thrown overboard by this Court on the ground that merger of the post of teachers in SES in BES Class-II was so ordained either in the resolution of Finance Department dated 11.4.1977 or in the order of this Court in CWJC No. 12122 of 1998 and/or CWJC No. 8679 of 2002, inasmuch as, they had a right even to challenge them as they were not party to the earlier litigations launched by the members of the SES.

63. This Court also is not in a position to also accept the submission of Mr. Kanth that the impugned order of the learned single Judge is unsustainable only on the ground that he had ignored the binding precedent of the order dated 2.2.2000 in CWJC No. 12122 of 1998 which were affirmed by the Division Bench in the LPA and also by the Apex Court. As has already been discussed above, neither the order dated 105 2.2.2000 in CWJC No. 12122 of 1998 had so held as with regard to the merger of the post of teachers of SES in BES Class-II nor the same was ever held by any Court save and except in the interlocutory orders passed in CWJC No. 8679 of 2002 and that too not independently by only interpreting the order dated 2.2.2000 in CWJC No. 12122 of 1998.

64. The whole matter can be viewed yet again from another angle. In Bihar Education Code, Government Edition 1961 and its revised Edition by Malhotra Publication (2001 Edition) Chapter 11, Section-1, deals with appointment, probationary rules, promotion, miscellaneous rules, departmental punishments, confidential reports and transfers. Section 2 deals with Leave, Section 3 deals with Finance and Accounts and Section 4 with regard to Correspondence, Gazette notifications, Indents and Reports and returns. On a close perusal of Articles 775 and 794 of Bihar Education Code dealing separately with different services of Education Department it becomes clear that BES is State Service, whereas SES has diffierent branches of subordinate Service. Thus in Article 775 it is provided that the department comprises of the Bihar Subordinate and lower Subordinate Services which also contains a number of officers in posts outside the graded services on fixed or incremental pay. Article 776 provides for appointment in Bihar Education Service (BES) and it is in this that the Bihar Education Service Class-1 and Bihar Educational Service (Class II) Recruitment Rules, 1973 have 106 been incorporated. Rule 37 to 41 read of the Rules with appendix C&D of these Rules reads as follows:-

"37. For promotion to Class I of the Bihar Educational Service, excepting the branches mentioned in Appendix „C‟ cases of the all eligible officers of the Bihar Educational Service Class II, shall be considered.

38. For promotion to the Bihar Educational Service Class I in respect of the branches mentioned in Appendix „C‟ cases of all eligible candidates from amongst the members of the Bihar Educational Service Class II in respect of the branches mentioned in Appendix „C‟ shall be considered.

39. For promotion to Class I of the Bihar Educational Service, excepting the branches mentioned in Appendix „C‟ cases of all eligible officers of the Subordinate Educational Service shall be considered in accordance with rules 4(b) and (4)(c).

40. For promotion to the Bihar Educational Service Class II in respect of the branches mentioned in Appendix „C‟ cases of all eligible candidates from amongst the members of the Subordinate Educational Service in respect of the branches mentioned in Appendix „C‟ shall be considered.

41. An officer must have rendered the following minimum qualifying period of service for being eligible for promotion to the next higher rank:-

Posts Higher posts Minimum qualifying period service.

1 2 3 (I) Sub ordinate Education Service Bihar Education Service Class II 8 years (U.D.) (II) Bihar Education Service Class II Bihar Education Service Class I 8 years (III) Bihar Education Service Class I Selection Grade Posts in Bihar 5 years Education Service I Appendix 'C'

1. Officers and teachers of Sanskrit Branch and Islamic Branch.

2. Officers and Teachers of Physical Education Branch who do not possess any degree or diploma in teaching.

107

3. Officers and teachers of Special Research Institute, Viz., Nava Nalanda Mahavir.

4. Institute of Prakit and Jainology, K. P. Jayaswal Research Institute, Mithila Research Institute.

Institute of Arabic and Persian and Rashtra Bhasha Parishad.

5. Officers and teachers of Madrasa Islamia Shamshul Huda.

6. Officers and teachers of Government School of Arts and Crafts.

Appendix 'D' Subject Teachers in the Training College, Government College of Heath and Physical Education, Institutes of Science, Education and English, Director, Professors and Lecturers, Research Fellows in the various Research Institutes, Research- cum- Teaching Institutes such as Nava Nalanda Mahavihar, Institute of Prakrit and Jainology, K. P. Jaiswal Institute, Mithila Sanskrit Research Institute, Rashtra Bhasha Parishad, Sanskrit College, Madrass Islamia Shamshul Huda, Reformatory School and Pilot Centre for Juvenile delinquents."

65. Thus, from reading of the BES Class-1 and Class-2 Rules 1973, it becomes absolutely clear that the members of both teaching branch and inspecting branch of SES had their defined promotional channel in BES. Moreover the fact that SES has also three branches is also fully borne out from Article 790 of Bihar Education Code which reads as follows:-

"790. Pay of the Subordinate Educational Service. - The Subordinate Educational Service has three branches -

(i) Teaching staff of Government Boy‟s Schools (Zila and Sarvodaya Schools)

(ii) Inspecting Branch including Headmasters of Basic schools and Lecturers in Primary Teacher‟s Education Colleges and 108

(iii) Women‟s branch - Teachers in Govt. Girl‟s High and plus two secondary schools, lecturers in women‟s Primary Teacher‟s Education Colleges, Deputy Inspectors of Schools and Headmistresses of Government Girl‟s Middle Schools.

Subordinate Educational Service has four grades:-

Sl. Designation Fifth revised pay scale Revised Pay scale No. 1 S.E.S. (Posts in Basic grade) Rs. 1500-2750 1600-50-2300 60-2780 2 S.E.S. (Junior selection Rs. 1800-3330 2000-60-2300-75-3200 grade) 100-3500.

3 S.E.S. (Senior selection Rs. 2000-3800 2200-75-2800-100-4000 grade) 4 S.E.S. (Third selection grade) Rs. 2200-4000 2400-75-2800-100-4150 These pay scales shall be effective with effective from 1st January 1986, but in the revised scale of pay actual payment would be made from the 1st March 1989.

(F.D.‟s resolution no. 3/P.R.C.-026/90/4439, dated the 25th August, 1990.)"

66. It is equally important to take notice of the fact that under Article 791 there was also a lower subordinate service consisting of male teaching branch and femalre teaching branch. Article 791 reads as follows:-

"791. Pay of the Lower Subordinate Service. - The pay of the lower subordinate service is as follows:

Male (Teaching Branch) Old Scale Fifth revised scale

1. Middle Trained 425-605 950-20-1150-25-1400

2. Matric Trained 580-860 1200-30-1800

3. Intermediate Trained 730-1080 1400-40-1800-50-2300

4. Graduate Trained 785-1200 1400-40-1600-50-2300-60- 2600 Female(Teaching ranch) Old Scale Fifth revised scale

1. Matron 425-605 950-20-1150-25-1400

2. Charkha teacher do do

3. Teacher, Govt. Girl‟s High School 580-860 1200-1800 & Govt. Middle School

4. Teacher, Primary Teacher‟s 580-860 do Education College (Trained Matric)

5. Teacher, Govt. Girl‟s Middle 730-1080 1400-2300 School (I.A.C.T.)

6. Drawing teacher (Matric, Diploma 730-1080 1400-2300 in fine Arts) 109

7. (a) For Bachelor in Music 785-1210 1400-2600

(b) For Diploma in Music (C)For others 730-1080 1400-2300 425-605 950-1400

8. Craft Teacher 730-1080 1400-2300 (Memo no. 3/PAR-01-3/89-6021/F(2) dated 18.12.1989"

67. Judged in this background, when the pay-scale of Bihar Education Service in the table as provided under Article 788 of Bihar Education Code reading as follows :

Serial Grade Fifth revised pay scale New prescribed scale

1. Basic grade (Class II) 2200-4000 2200-75-2800-100-4000

2. Junior selection grade 2400-4150 3000-100-3500 125-4000-125-4500

3. Senior selection grade 3000-4500 3700-125-4700-150-5000

4. Supertime pay scale 3700-5000 4100-125-4850- 150-5300.

5. Additional Director 4500-5700 4500-150-5700

6. Director/Special Director of Education 5100-6300 5100-150-5700-

200-6300.

is taken into consideration, it becomes clear that whereas maximum pay-scale of the teaches in male teaching branch and female teaching branch as in the year 1990-91 was Rs. 1400 to 2600, the basic grade of the post of Bihar Education Service Class-II was Rs. 2200 to 4,000/-.

68. True it is that in the report of the Chief Secretary of the state filed in this Court it has been stated that as quoted in paragraph no.19 of this judgment in the year 1978, the pay-scale of lower and upper grade were merged and then Bihar Subordinate Education Service came into 110 existence of which 20% posts were in the pay-scale of Rs. 510/- to Rs. 1155/- but then from the overall scheme in the Bihar Education Code, it cannot be held that the teachers of Subordinate Education Service (SES) were being denied promotional avenue or were being subjected to stagnation.

69. From the aforementioned analysis, it also becomes clear that the Government resolution dated 11.4.1977 which was only meant for State Service Cadre Officers in no way related to teaches of SES, inasmuch as, the said resolution in terms of the report of Saran Singh Committee had been issued only to remove the stagnation for such incumbents of the State service who were stagnating and had not any source of promotion.

70. Thus, on a combined reading of the Article 775 to Article 803 of the Bihar Education Code, there is no scope for any speculation that the teachers of SES men‟s and women‟s branch were neither made the subject matter of the reference made to the Saran Singh Committee nor the resolution dated 11.4.1977 had envisaged their merger in the BES Class-II. The resolution dated 11.4.1977 itself talks of miscellaneous cadre of BES and not of SES and what is miscellaneous cadre has not only explained by the Chief Secretary in his report submitted to the High Court as explained earlier but is also apparent from reading of the Rules and its appendix under which there were posts of teachers in BES Class-II would be clear from Rule 37, 38, 39, 40 & 41 read with 111 appendix C and D.

71. Thus, the report and the affidavit of the Chief Secretary filed before this Court in CWJC No. 8679 of 2002 is not out of hat but is based on a close perusal of the Rules and other materials on record and that ought to have relied by the learned single Judge in CWJC No. 8679 of 2002 while monitoring the contempt. Be that as it may, this Court upon taking into consideration of the relevant aspects is of the opinion that the report of the Chief Secretary is absolutely inconsonance with the recommendations made by the Saran Singh Committee and the Rules as also provisions in various Articles of the Bihar Education Code therefore is conclusion that the resolution dated 11.4.1977 is absolutely correct.

72. Once this Court comes to this conclusion that the said resolution dated 11.4.1977 was not meant for merger of teachers of SES in BES Class-II and none of the order of this Court also had also held so, the inescapable conclusion arrived at by the learned single Judge in the impugned judgment cannot be faulted with either on fact or in law.

73. It has to be also kept in mind that either in the Bihar Education Service Class-I or Class-II, there are a number of cadres and in fact when the provision of Recruitment Rules 1973 is perused, it would become clear that in Bihar Education Service, there is a cadre of general officers of inspecting branch holding the post of SDEO, District Superintendent of Education, District Education Service Officer, Deputy Director and 112 Director whereas in the same Bihar Education Service, there is also post of Teachers for specialized institute as provided in the appendix-C & D who have their separate cadre. BES Class-II, therefore, is not one cadre where the teachers of SES either of the male or female branch could have been inducted and that too by way of merger, inasmuch as, there is no concept of filling up the post of BES Class-II except by direct appointment or promotion in terms of Rule 4 of the Rules. The promotion of teachers of SES or inspecting branch is well permissible under Rule 4 of the 1973 Rules read with Rule 36 to 41. It has to be also kept in mind that alike BES even SES has got a number of cadres as can be evidenced from the reading of Article 790 and 791 of the Bihar Education Code.

74. In that view of the matter, this Court would find it difficult to accept the submission of Mr. Kanth that merger of the post of Teachers of SES was contemplated or recommended by Saran Singh Committee leaving other branch of SES including its inspecting branch to continue in BSES.

75. From the aforementioned analysis, it also becomes clear that the Government Resolution dated 7.7.2006 did not envisage merger of two services or cadres rather it made out a case of merger of certain individual posts of the teachers of SES in BES Class-II, inasmuch as, inasmuch as, the teachers of SES alone have been sought to be merged in BES Class-II leaving the members of Inspecting branch including Headmasters of 113 Basic School and Lecturers in Teachers Training Education Colleges still to continue in SES as per Article 790(ii) of Bihar Education Code.

76. A question would therefore also arise whether it could be done so in presence of statutory Rules of BES ?. It is well settled principle of law that a rule framed under proviso to Article 309 of Constitution of India having statutory force is capable of being amended only by a similar statutory rules. In the present case, the Government by passing the impugned order of merger dated 7.7.2006 had merely resorted to its executive power and that by itself could not have amended Rule-4 of Rules already quoted above which lays down the manner of filling up of the post in the Bihar Education Service Class-I and II only through the direct recruitment or promotion.

77. This Court is conscious that in the event of merger of two cadres, there would be no requirement for amending the rules, but, if certain persons with posts of another service are sought to be absorbed, merged or grouped together in a different service having statutory recruitment Rules there has to be some provision in the Rules of such service in absence whereof, the executive act cannot be sustained as was held by the Apex Court in the case of Bindeshwari Ram Vs. State of Bihar & Ors. reported in 1989(4)SCC 465:-

"6. It is settled that the provisions of statutory rules cannot be modified or altered by executive instructions and it is only in the absence of statutory rules that executive instructions have relevance. As such even if for the sake of 114 argument it may be accepted that on account of the memorandum to the Cabinet or any other executive instruction the appellant was to be given seniority as claimed by him, it could not be done as in case of a conflict the statutory provisions contained in this behalf in proviso (iii) of Rule 35 of the Rules shall prevail. In the result this appeal fails and is dismissed but in the circumstances of the case there shall be no order as to costs."

78. There would be no need to multiply by this aspect by referring to other precedents on this settled principle of law inasmuch as, this aspect stands covered by a long line of cases including in the cases of R.N. Nanjundappa Vs. Thimmiah & Anr. reported in AIR 1972 SC 1767, in the case Katyani Dayal & Ors. Vs. Union of India & Ors. reported in 1980(3)SCC 245, in the case of Bhagwan Dass & Ors. Vs. State of Haryana & Ors. reported in 1987 SC 2049, 1990 SC 1607 & in the case of Direct Recruit Class II Engineering Officers'Associatioin Vs. State of Maharashtra & Ors. reported in 1990(2)SCC

715.

79. At this place, we must also take note of a judgment in the case of Vinay Kumar Verma & Ors. Vs. State of Bihar & Ors. reported in AIR 1990 SC 1689 on the question of merger of cadres inasmuch as Mr. Kanth relying on the said judgment had submitted that merger by the impugned order dated 7.7.2006 was well permissible.

80. In the opinion of this Court, the ratio of Vinay Kumar Verma (supra) far from supporting the stand of Mr. Kanth goes against him. First of all that was a case of merger of cadre of District Engineers with the 115 cadre of Assistant Engineers of the PWD and in that context, it was held that merger of two cadres was possible even by an executive act. Here in this, it is not a case of merger of cadre rather certain individuals holding the posts of teachers in SES having different cadres namely teaching branch in boys high schools and a separate cadre of teaching branch in girls school are sought to be amalgamated in BES Class-II. The difference between the service and cadre has to be therefore clearly kept in mind as was laid down by the Apex Court in the case of O.P. Singla & Anr. Vs. Union of India & Ors. reported in AIR 1984 SC 1595 holding that the service is a narrower body than the cadre.

81. In our considered opinion, when the teachers of SES who had their direct promotional avenue in BES Class-II in terms of Rule-4 of the Rules, they being continued on a subordinate post and reporting to the officers of BES Class-II, having a different mode of recruitment with absolutely different qualification, their merger was not permissible unless the Rules of BES itself were amended.

82. The scope of judicial review in a case of merger/integration of cadres is also no longer res-integra, inasmuch as, in the case of State of Maharashtra & Anr. Vs. Chandrakant Anant Kulkarni & Ors. reported in 1981(4)SCC 130, the Apex Court had laid down that in the matter of equation of post where there were regularly constituted similar cadres in the different integrating unit, the cadres will ordinarily be integrated on 116 that basis but where there were no such similar cadres, the following factors will be taken into consideration in determining the question of post.

(a) nature and duties of a post;

(b) powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged;

(d) the salary of the post.

83. The judicial review on the aforementioned factors, however, is limited to an enquiry as to whether the aforementioned four principles had been properly taken into account. The said judgment of the Apex Court in the case of Chandra Kant (supra) has since been referred to and approved in another judgment in the case of S.P. Shivprasad Pipal Vs. Union of India & Ors. reported in 1998(4)SCC 598 and in the case of Union of India & Ors. Vs. Anil Kumar & Ors. reported in AIR 1999 SC 2229 wherein the action of putting all Assistant Foreman in block junior to Senior Scientific Assistant while merging the cadre was held to be without any rationale or valid basis and thus, arbitrary being violative of fundamental rights guarantee equality in service matter.

84. At this juncture, it cannot be out of place to see disastrous consequences which would flow from the merger of the post of teachers 117 of the SES in BES Class-II. The cadre of BES both inspecting and teaching branch taken together is around 500. All of them have entered in service on the basis of combined competitive examination held by Bihar Public Service Commission in terms of the Rules. They were part of the State Government Services and all along holders of gazetted post. They were always the controlling authorities of not only the teachers of SES but even their immediate controlling authority namely principals of the schools who could have earned promotion in BES Class-II. They were all along holding the non-gazetted post with inferior scale of pay and now all of them have been sought to be given a triple jump by the order of merger in BES Class-II by the impugned notification dated 7.7.2006 and that too with retrospective effect from 11.4.1977. In fact, a large number of these teachers of SES have also obtained their salary of BES on account of threat of contempt in CWJC No. 8679 of 2002. They are also claiming their seniority over the regular incumbants of BES Class-II w.e.f. 11.4.1977 and that is how non-finalization of the gradation list for giving seniority with effect from 11.4.1977 in BES Class-II is still the subject matter of the contempt proceedings in CWJC No.8679 of 2002. If these aspects are taken into account virtually more than 2500 teachers of the Zila schools could have become BES Class-II officers with effect from 11.4.1977 and those who have been appointed in BES Class-II or have also earned promotion in BES Class-I in last more than 30 years had to 118 rank junior to these teachers. Such absurd proposition of the merger of individuals in a duly constituted state service governed by Statutory Rules is absolutely unheard of and infact impermissible in law. Probably on a next occasion the Clerk of the Education Department may also claim for their being merged on the post of BES Class-II. That was never the concept of merger of post or the scope of Resolution of Finance Department dat ed 11.4.1977.

85. Thus, whenever in service jurisprudence, a concept of merger of two cadres have been accepted by the Court, it is only by holding the parity of the post and the other consideration as pointed out in the case of Chandrakant Anant Kulkarni (supra).

86. It is true and in fact there are long line of cases including the case of Reserve Bank of India Vs. N.C. Paliwal & Ors. reported in 1976(4)SCC 838 and in the case of Inder Singh & Ors. Vs. Vyas Muni Mishra & Ors. reported in 1987 Suppl. SCC 257 laying down that the merger or bifurcation of a cadre is an executive act and it is for the State to consider whether two group of persons working under to district post performing the same kind of duties or not, inasmuch as, such merger is a matter of policy which does not attract the applicability of equality clause but then, the Courts cannot take upon themselves this task of merger of cadres as was held in the case of Association for the Officers of the W.B. Audit and Accounts Service and Others Vs. W.B. Audit and Accounts Service Association and Others 119 reported in 1995 Suppl (4) SCC 44 wherein it was held as follows:-

"4. Recruitment to the posts in the three services in the Audit and Accounts Department is regulated by the statutory rules framed under Article 309 of the Constitution of India. Three independent services have been constituted and recognized by the statutory rules as separate and independent services. Neither the learned Single Judge nor the Division Bench of the High Court referred to the statutory rules. When the three services are constituted under the statutory service rules, we fail to understand on what basis the High Court has directed the merger of the two statutory services without even referring to the rules. The merger of the two services directed by the High Court is patently illegal and is violation of the statutory rules."

87. In the present case, therefore, the scenario is absolutely vivid and clear, inasmuch as, the Government right from the beginning in various affidavits to this Court has been consistently placing its view that the Government resolution dated 11.4.1977 was never meant for merger of post of teachers of SES in BES Class-II. This Court also in the earlier order in CWJC No. 12122 of 1998 had not held so but interpreting that order, the learned single Judge in CWJC No. 8679 of 2002 and by giving it the color of contempt has gone to hold that the Government resolution dated 11.4.1977 was meant for merger of the post of teachers of SES in BES Class-II. That is simply not permissible and in any event as we are also dealing with said case CWJC No. 8679 of 2002 in view of the order of the Apex Court dated 19.4.2006, we find no reason to accept the reasonings given in any of the interim or final order passed by the learned 120 single Judge in CWJC No. 8679 of 2002 wherein contempt proceeding has been sought to be monitored for implementation of the order dated 2.2.2000 in CWJC No. 12122 of 1998 in a circuitous manner by reading something in the notings in the file when a plea was taken that the Government resolution dated 11.4.1977 did not envisage merger of the post of teachers of SES in BES Class-II and that the said resolution had already been acted upon merging 59 posts of BES Class-II in the manner it was suggested in the resolution dated 11.4.1977.

88. The last limb of submission of Mr. Kanth that since the Council of Ministers had already approved such merger of the post of SES in BES Class-II, this Court should not go beyond that and accept the said cabinet memorandum as a final word is also not acceptable to us inasmuch as it has to be remembered that it was under the threat of contempt continuing in repeated orders of this Court in C.W.J.C. No. 8679/2002 seeking personal appearance of the Chief Secretary, the Finance Commissioner and the Education Commissioner on a number of occassions that they moved the Apex Court and though the contempt proceedings were stayed by the Apex Court but eventually when the Apex Court had remittted the matter back to the High Court at a stage when process of contempt by way of framing of charges had already ordered, there was little option for the officers of the State Government but to come out with a memorandum placed before the Council of 121 Ministers and that is how, the impugned order reads clearly that the same was in terms of the order of the Court. If that be the manner in which the impugned order of merger came to be passed, the learned single Judge in the impugned judgment was absolutely justified and that too at the instance of the Association of the Bihar Education Service Officers the Respondent writ petitioner to decide as to whether there was any such direction by this Court as referred to in the impugned order for merger of the teachers of BSES in BES Class-II. If on such detail scrutiny, the learned single Judge has arrived at a findings, to which we also concur, that there was no such decision in the Government resolution dated 11.4.1977 for merger of the post of teachers in BES Class-II or there was no such direction by this Court, the ultimate conclusion arrived at by the learned single Judge of quashing the impugned order of merger also cannot be faulted.

89. It is true that the officials of the State, probably on account of the contempt proceedings have not taken a firm and bold stand in few on the litigations on the subject as was expected from them but then also it is also well settled that any order passed by the authority under the threat of contempt by itself cannot bind the third party adversely affected by it. Here in this case, it is not the state which had assailed the notification of merger dated 7.7.2006 rather it is the Association of the officers of Bihar Education Service and its members who had filed the writ application 122 challenging the correctness of the order of merger as the same had adversely affected them in no uncertain manner. Therefore, for them either the appellants of these five appeals, the members teachers of the high school of BSES or the State Government were adversaries and it would be thus of little avail for the appellants to rely on the order passed by the State under the threat of contempt so as to take away the vested rights of the officials of the Bihar Education Service. In the case of Subodh Kumar Jaiswal & Ors. Vs. Union of India & Ors. reported in 2008(11)SCC 139 in a similar situation when the order was passed in favour of one set of officials under the threat of contempt, the same were held to be not binding on the other set of officers and such order approved by the High Court was set aside. Even otherwise it is well settled that an order passed affecting adversely a third person who is not a party to the earlier proceedings cannot bind him. Therefore when such officials of the Bihar Education Service, either in representative capacity or in individual capacity, were never impleaded parties in any of the writ application filed by the members of SES any order passed in their cases could not have taken away right of the member officers of BES and its Association to assail such order nor they could be held to be bound by such order of merger dated 7.7.2006 or any of the order passed in C.W.J.C. No. 8679/2002.

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90 . Quite often it is said that if a myth or a falsehood is expanded to an astronomical proportion, it starts giving a semblance of truth. The search, therefore, of this Court in these batch of cases had been to find out as what was the truth, namely, whether at any point of time, the State Government had ever intended muchless decided on its own to merge the posts of teachers of Subordinate Education Services (teaching branch) in Bihar Education Service class-II? We must in the light of our discussions and findings in the earlier paragraph of this judgment hold that the truth is that the Resolution of the Finance Department dated 11.4.1977 did not envisage merger of the posts of teacher of SES in BES Class-II and thus any order passed including the merger notification dated 7.7.2006 or its implementation either by way fixation of pay and payment of arrears of salary in BES Class-II is unsustainable in law.

91. Before parting with, this Court, however, must take note of certain events which have taken place after issuance of the impugned order of merger dated 7.7.2006 on account which certain financial benefits have extended to the teachers of SES who have been paid certain arrears of salary by giving them retrospective revision of pay-scale of BES Class-II from 11.4.1977 under the threat of contempt in the various orders passed in C.W.J.C. No. 8679/2002. The Government, however in view of the impugned order of learned Single Judge had proposed to recover such amount from them on the ground of setting aside of the 124 order of merger dated 7.7.2006. This Court by interim orders in these appeals had stayed such recovery. In our view such individual members i.e. the teachers of SES cannot be said to have misrepresented in any manner, inasmuch as, it was by way of implementation of the merger notification, though on the threat of contempt, that the direction for payment of salary was made of course on account of constant monitoring of the contempt proceeding in CWJC No. 8679 of 2002. We would, therefore, hold that whatever amount had already been paid to the teachers of SES by way of arrears will not be recovered from them but their present salary and/or retirement benefit would be paid only on the basis of their pay-scale to which they were/are entitled while holding the post of teachers in SES. It is however made clear that now no teacher of SES would be entitled to claim the benefit of salary of BES Class-II on the ground that other teachers of SES had been paid their arrears of salary in the pay scale of BES Class-II.

92. Thus for the reasons indicated, all the five LPAs being LPA No. 418 of 2009, LPA No. 974 of 2007, LPA No. 947 of 2007, LPA No. 946 of 2007 & LPA No. 941 of 2007 subject to the observations and directions given above are dismissed.

CWJC No. 8679 of 2002

93. This writ application as noted above in fact had stood disposed of by an order dated 9.12.2002 but in view of the liberty given in the said 125 order, the said case was revived for monitoring the contempt proceedings and that is how, this case has still remained alive especially in view of the order of the Apex Court dated 19.4.2006. We have already discussed that there was no order passed by this Court in CWJC No. 12122 of 1998 for merger of post of teachers of BSES in BES Class-II and the direction therein was limited only to give effect to the resolution of the Finance Department dated 11.4.1977 even in case of Education Department. We have already held while approving the report cum affidavit of the Chief Secretary filed in this case that the Government resolution dated 11.4.1977 had already been worked out as is also apparent from the Newspaper notice of Education Department dated 17.9.2002. We also find no reason to hold the opposite parties officials of the State Government in contempt on account of making certain observations in the files particularly by one Sri Rameswar Singh, the then Additional Finance Commissioner, inasmuch as, it has already been held by the Apex Court in the case of State of Bihar & Ors. Vs. Kripalu Shankar & Ors. reported in AIR 1987 SC 1554, that :-

12. It cannot be disputed that the appeal raises an important question of law bearing upon the proper functioning of a democratic government. A government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister concerned. Till then, conflicting opinions, views and suggestions would have emanated from 126 various officers at the lower level. There should not be any fetter on the fearless and independent expression of opinion by officers on matters coming before them through the files. This is so even when they consider orders of courts. Officers of the government are oftentimes confronted with orders of courts, impossible of immediate compliance for various reasons. They may find it difficult to meekly submit to such orders. On such occasions they will necessarily have to note in the files, the reasons why the orders cannot be complied with and also indicate that the courts would not have passed those orders if full facts were placed before them. The expression of opinion by the officers in the internal files are for the use of the department and not for outside exposure or for publicity. To find the officers guilty for expressing their independent opinion, even against orders of courts in deserving cases, would cause impediment in the smooth working and functioning of the Government. These in the smooth working and functioning of the government. These internal notings, in fact, are privileged documents. Notings made by the officers in the files cannot, in our view, be made the basis of contempt action against each such officer who makes the notings. If the ultimate action does not constitute contempt, the intermediary suggestions and views expressed in the notings, which may sometimes even amount to ex facie disobedience of the court‟s orders, will not amount to contempt of court. These notings are not meant for publication.

13. In our considered view the internal notes file of the government, maintained according to the rules of business, is a privileged document. If the government claims privilege or quasi-privilege regarding the notes file we will not be justified in rejecting the claim outright. In this case, the notes file was brought to the court not voluntarily by the government. It was summoned by the court. The court can always look into it. The right of the court to look into any file can never be denied. The 127 contents of the notes file brought to court got communicated to the court because the court looks into it. It would be dangerous to found an action for contempt, for the views expressed in the notes file, on the discovery of unpleasant or unsavoury notes, on a perusal of the notes file by the court after getting them summoned. This would impair the independent functioning of the civil service essential to democracy. This would cause impediments in the fearless expression of opinion by the officers of the government. The notings on files differ from officer to officer. It may well be that the notes made by a particular officer, in some cases, technically speaking is in disobedience of an order of the court or may in violation of such order but a more experienced officer sitting above him can always correct him. To rely upon the notings in a file for the purpose of initiating contempt, in our view, therefore, would be to put the functioning of the government out of gear. We must guard against being over-sensitive, when we come across objectionable notings made by officers, sometimes out of inexperience, sometimes out of over-zealousness and sometimes out of ignorance of the nuances of the question of law involved.

16. Viewed in this light, can it be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation. The notings in a notes file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the concerned officer on the subject under review. To examine whether contempt is committed or not, what has to be looked into is the ultimate order. A mere expression of a view in notes file cannot be the sole basis for action in contempt. Business of a State is not done by a single officer. It involves a complicated process. In a democratic set up, it is conducted through the agency of a large number of officers. That being so, the noting by one officer, will not afford a valid ground to initiate 128 action in contempt. We have thus no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt. It would not, in our view, constitute civil contempt either for the same reason as above since mere expression of a view or suggestion will not bring it within the vice of sub-Section (C) of section 2 of the Contempt of Courts Act, 1971, which defines civil contempt. Expression of a view is only a part of the thinking process preceding government action."

94. In our considered opinion, the learned single Judge while passing the interim order in CWJC No. 8679 of 2002 or even final order by only placing reliance on the notings of the file ought to have not initiated a contempt proceeding specially when on that day or even till today, there is nothing to show that the resolution dated 11.4.1977 of the Finance Department was in fact even meant for the teachers of BSES.

95. We would, however, clarify that as this Court in the order dated 17.9.2002 had restrained the respondents official of the State of Bihar in relation to the notice of the Education Department dated 17.9.2002 published in the Hindustan Times, Patna Edition as with regard to the finalizing the cases of merger of 59 posts of BES and it was directed that no final order would be passed until disposal of the writ application, this Court would give liberty to the respondents officials to issue a consequential order in terms of the said newspaper notice dated 17.9.2002 published in the Hindustan Times.

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96. With the aforementioned observations, further proceedings of CWJC No. 8679 of 2002 is also hereby closed, The record of this case be accordingly now consigned.

MJC No. 251 of 2001

97. In this contempt application, the same order dated 2.2.2000 in CWJC No. 8147 of 1999 has been made subject matter of the contempt proceeding. This case was also tagged along with CWJC No. 8679 of 2002. CWJC No. 8147 of 1999 was disposed of by the common order dated 2.2.2000 along with CWJC No. 12122 of 1998 and the order passed in CWJC No. 8147 of 1999 was as follows:-

"So far as prayer of the petitioner Smt. Ratan Prabha and others of C.W.J.C. No. 8147/99 relating to pay anomaly ins concerned, they may represent the matter before the appropriate Pay Anomaly removal Committee through the proper authority. However, in their case, if the resolution dated 11.4.1977 is applicable, they may derive the benefit of the direction as given above."

98. As is clear from the aforementioned observations, no firm direction was given in the case of Smt. Ratan Prabha & Ors., the petitioners of this case which is being made subject matter of contempt proceedings. We have also come to the conclusion that resolution dated 11.4.1977 was not meant the teachers of BSES including Smt. Ratan Prabha and others and therefore, we have no hesitation in dismissing this contempt application as well.

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99. Thus in the result, all the five appeals being LPA No. 418 of 2009, LPA No. 974 of 2007, LPA No. 947 of 2007, LPA No. 946 of 2007 & LPA No. 941 of 2007 and MJC No. 251 of 2001 are dismissed and the contempt proceedings in C.W.J.C. No. 8679 of 2002 is dropped.

100. There would be, however, no order as to costs.

    (Dipak Misra, CJ.)                          (Mihir Kumar Jha, J.)



Patna High Court, Patna
Dated, the 21st of May, 2010
AFR/(Rishi)

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