State Of Bihar vs Shyama Nandan Mishra

STATE OF BIHAR & ORS. APPELLANT(S)

VERSUS

SHYAMA NANDAN MISHRA RESPONDENT(S)

WITH

CIVIL APPEAL NOS._7371_OF 2014

CIVIL APPEAL NOS._7373_OF 2014

CIVIL APPEAL NOS._7365_OF 2014

CIVIL APPEAL NOS._7368_OF 2014

CIVIL APPEAL NOS._7374_OF 2014

J U D G M E N T

Hrishikesh Roy, J.

Signature Not Verified Digitally signed by Nidhi Ahuja Date: 2022.05.05 16:52:42 IST Reason:

1. Heard Mr. P.S. Patwalia, learned Senior Counsel

appearing for the appellants. Also, heard Mr. Vinay Page 1 of 34 Navare and Mr. V.N. Sinha, learned Senior Counsels

appearing for the contesting respondents. The

Intervener is represented by Mr. Vijay Hansaria,

learned Senior Counsel.

2. The challenge here is to the judgment and order

dated 30.4.2013 in CWJC Case No. 18793 of 2008 and

analogous cases whereby the Division Bench of the High

Court at Patna, granted relief to the writ petitioners

and declared that the +2 lecturers, both in the

Government and the nationalized (taken over) secondary

schools, appointed pursuant to Advertisement No.1/87,

have always been part of the Bihar Subordinate

Education Service(for short “BSES”)and thereby, they

are entitled to be merged with the Bihar Education

Service Class II (for short “BES”), pursuant to the

Government decision dated 07.07.2006. The Court also

interfered with the impugned notification dated

23.6.2009, which provided for the encadrement of the +2

lecturers with the teachers in the nationalized

secondary schools, which was found to be in

Page 2 of 34 contravention of Article 790 of the Bihar Education

Code and also contrary to the Government’s decision

dated 07.07.2006 and the Advertisement No. 1/87. Thus,

the impugned order dated 6.10.2006 and the notification

dated 23.6.2009 were quashed and set aside.

3. At the outset, it is imperative to take note of the

relevant background and the previous litigation rounds

which led to the present proceedings.

BACKGROUND

4. The Government of Bihar constituted a committee

headed by Shri Saran Singh in 1976, to address the

problem of stagnation etc. in Bihar Civil Service and

to consider opportunities for promotion. The

committee’s recommendations with respect to the Bihar

Education Department included the integration of 59

posts in the miscellaneous cadre (comprising of

teachers, professors, etc, who held isolated posts with

no definite prospects of promotion), into the Bihar

Education Service Cadre. In line with these

recommendations, the Government issued Regulation dated

Page 3 of 34 11.04.1977, upgrading 2465 sanctioned posts of teachers

of subordinate education service male and female cadre,

into Bihar Education Service Class II w.e.f 01.01.1977.

5. The Association representing the teachers of the

BSES filed a writ petition in the Patna High Court

claiming merger of their cadre with the BES, pursuant

to the resolution dated 11.04.1977. The writ petition

was allowed on 02.02.2000 and the subsequent LPA and

SLP were dismissed. Since the consequential benefits of

the merger were still not forthcoming, another writ

petition was filed, which too was allowed and affirmed

in the LPA. The civil appeal before this court was

dismissed on 19.04.20061, deciding the outcome in favor

of the writ petitioners, i.e., the members of the BSES.

6. In compliance of the aforesaid judgment of this

Court, a Resolution dated 07.07.2006 was issued,

whereby the cadre of BSES (Teaching Branch) (Male and

Female Teachers) was merged with the BES, Class–II

w.e.f. 01.01.1977. At this stage, members of the BES

State of Bihar Vs. Janardan Rai ,(2012) 13 SCC 59 1 Page 4 of 34 Association, apprehending adverse impact on their

inter-se seniority, filed a writ petition, challenging

the merger. A Single Judge of the High Court allowed

the WP on 31.10.20072. Immediately after this judgment,

the State Government (without waiting for the outcome

of the LPA), in compliance of the Single Judge

judgment, quashed the merger resolution vide

notification dated 19.11.2007, thereby withdrawing the

financial benefits flowing therefrom.

7. The decision of the Single Judge was affirmed by the

Division Bench. The resultant SLP and the appeal

therefrom was ultimately allowed by this Court in a

detailed judgment dated 23.11.20123. Consequently, the

initial government decision (07.07.2006), by which the

cadre of the BSES teachers (teaching branch) was merged

with the BES, stood restored and the State was directed

to act accordingly. In arriving at the conclusion, the

Supreme Court pertinently observed that once the merger

2Bihar Education Service Assn. Vs. State of Bihar , (2008) 1 BLJR 431

3Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn.,(2012) 13 SCC 33

Page 5 of 34 decision was already upheld by this court in earlier

rounds of litigation and was also acted upon by the

State, the High Court should not have reopened the

matter at the instance of the BES Association. The

fluctuating stand and indecisiveness of the government

was also noted with displeasure by the Supreme Court in

its judgment.

8. The government, however, was dilly-dallying on the

aspect of restoration of the earlier position,

consequent upon the merger of the two cadres.

Ultimately, contempt proceedings were initiated by the

disgruntled members of the BSES in Bihar State

Government Secondary School Teachers Association Vs.

Ashok Kumar Sinha4, wherein this court had the occasion

to observe that the Bihar Education Service Rules, 2014

were in the teeth of the judgment rendered on

23.11.20125. This was because the Government had

introduced four sub-cadres in the BES (merged entity)

under 2014 Rules, conspicuously barring transfer from

4(2014) 7 SCC 416 Supra 5 Page 6 of 34 one sub-cadre into another. Those in the BSES were

placed in the teaching sub-cadre, where Principal would

be the highest promotional post whereas those in the

BES were put in administrative sub-cadre, who would

continue to control the school administration as

before. The teaching sub-cadre was yet again isolated

and also treated as a “dying cadre”. Through this act

of the government, those in the BSES were effectively

prevented from being transferred and posted in the

administrative sub-cadre. Glaringly, Rule 27 gave

option to members of the other sub-cadres for inclusion

in a different cadre on fulfillment of prescribed

qualifications, but no such option was made available

to the teaching sub-cadre.

9. Noticing the above attempt to deny equal benefits

to the BSES cadre vis-à-vis the BES cadre, the Supreme

Court significantly observed that the promulgation of

the 2014 Rules by the Bihar government, amounted to

circuitous contrivance, to maintain the position which

existed prior to the merger and to unjustly protect the

Page 7 of 34 interest of those in the BES. Accordingly, directions

were issued to revive the combined gradation list or in

the alternative, to suitably amend Rule 27 to give

effect to the real purpose of the merger.

PRESENT LITIGATION

10. The facts germane to the present appeal are now to

be noted. The Bihar Government in 1979 introduced the

10+2+3 education pattern (i.e. 10 years of schooling, 2

years of higher secondary and 3 years of college

graduation). At the relevant time, in the absence of

sufficient infrastructure, higher secondary education

was imparted by colleges. The posts of +2 lecturers

were sought to be created to impart +2 level teaching.

11. Pursuant to the above decision, the Bihar

Government on 13.11.1985 sanctioned 148 posts of

lecturers in Subordinate Service Selection Grade for

government schools and 264 posts of lecturers in

nationalized schools, providing common pay scale of Rs.

940-1660 for both categories of lecturers. It may be

highlighted that only the posts of the +2 lecturers in

Page 8 of 34 the Government schools were specified to be in the BSES

Selection Grade. Thereafter, the Bihar School Service

Board issued the advertisement No. 1/87, initiating the

process of selection. The advertisement, pertinently,

reflected the following:-

“Class – I:

Lecturers in the Subordinate Service Grade in the +2 Stream (Inter level) Government Boys/Girls High Schools.

**** **** **** Academic Qualification:

For the Cass – I posts: Second class Post Graduation Degree in the concerned subject from a recognized university.

For the Class -II and III posts of the Subordinate Education Service (Education Branch) for both male and female categories: Trained graduate in the concerned Subject."

(SIC) **** **** ****

The candidates were to apply for posts of lecturer

in the Subordinate service grade and the advertisement

prescribed Post Graduation in 2nd division, as necessary

qualification for the posts.

Page 9 of 34 12. The selected candidates were then issued the

appointment orders, which reflected that the

appointments were being made to newly created ex-cadre

posts in +2 schools, on ad-hoc and temporary basis.

These temporary appointments were continued for

succeeding academic years under various government

notifications, issued from time to time.

13. The main cause for the present litigation is that

while implementing the merger decision (07.07.2006), an

exception was carved out by the government on

06.10.2006, whereunder, the benefit of merger into BES

was denied to the +2 lecturers in Government schools.

The ostensible premise for the deviation was that the

+2 lecturers were never treated or recognized as part

of the BSES cadre. The +2 lecturers being aggrieved

thus, moved the High Court in CWJC 14009/2006 and other

connected writ petitions, contending that their posts

were created in the BSES. This position was also

reflected in the advertisement No. 1/87 through which

Page 10 of 34 they were recruited. In effect, the benefits of the

merger with the BES were claimed in these matters.

14. During the pendency of the above Writ Petitions in

the High Court, the State Government on 23.06.2009, in

exercise of powers under Section 9 read with Section 15

of the Bihar Non-Government Secondary Schools (Taking

over of Control and Management) Act, 1981, framed the

Bihar Government Higher Secondary Schools (Service

Conditions) (Amendment) Rules, 2009 (for short “2009

Rules”) and notably decided to amend the Bihar Taken-

over Secondary Schools (Service Conditions) Rules,

1983. Through the 2009 amendment, the lecturer was

defined to mean the +2 lecturers who were appointed

pursuant to the Advertisement No. 1/87 and they were

encadred with the nationalized secondary school

teachers.

15. As a result of the above encadrement with the

teachers of the nationalized school category, further

challenge was generated in the High Court by the +2

lecturers. It was specifically contended that the +2

Page 11 of 34 lecturers have always been treated as above the

secondary school teachers in nationalized schools and

therefore encadrement of the two unequals is unjust.

16. The High Court in the impugned judgment

categorically held that the +2 lecturers who were

appointed pursuant to Advertisement No. 1/87, were

always a part of the BSES. Concomitantly, the

artificial grouping of +2 lecturers with the teachers

of nationalized schools (vide notification 23.06.2009),

was found to be unjustified and interdicted. While

concluding thus, the High Court noted that

Advertisement No.1/87 specifically mentioned

Subordinate Education Service. Besides the “plus two

secondary schools”, where the lecturers were imparting

education, were envisaged as part of the BSES as was

clearly discernable from Article 790 of the Bihar

Education Code. While opining in favour of the present

respondents, the Court relied upon the earlier judgment

(30.9.1997) of Justice S.J. Mukhopadhaya in CWJC No.

2445/1994 to say that postings in either the government

Page 12 of 34 or nationalized schools at the relevant time were

fortuitous and the rights of +2 lecturers would not

depend on their chance postings in either of the

schools. The Division Bench also gathered that mere

reference to ex-cadre posts in the appointment letters

and lack of decision by government in assimilating the

+ 2 lecturers into the cadre of mainstream teacher,

will not deprive them of their legitimate rights. The

Court took a dim view of the indecisiveness and

fluctuating stand of the Bihar government which led to

a spate of litigations. Thus, relief was granted to the

respondents with the declaration that the +2 lecturers

of both schools, who were appointed under the

Advertisement no. 1/87, have always been part of the

BSES and consequently of the BES.

17. Challenging the impugned judgment, Mr. P.S.

Patwalia, learned senior counsel in the appeal arising

out of the lead SLP, submits for the State of Bihar

that the appointment letters specifically mention that

the +2 Lecturers were appointed in Ex Cadre Posts and

Page 13 of 34 the decision with respect to their separate cadre

formation was to be taken shortly. Further, the posts

of + 2 lecturers were not in existence in 1977, when

the policy decision to merge BSES with BES was taken.

According to Mr. Patwalia, the encadrement is in

conformity with the Bihar Non-Government Secondary

Schools (Taking over of Control and Management) Act,

1981, since the recruitment of the + 2 lecturers was

made by the School Service Board which is a statutory

body formed under section 10 of the Act. Appellant’s

next submission is that in previous rounds of

litigation, the respondents sought only pay scale

parity with members of the BSES and as such, the Writ

Petition in the High Court in the current round is

barred by the principles of constructive res judicata

besides inordinate delay. The reference to the BSES,

Selection Grade in the Advertisement, according to the

State’s counsel, was made only to identify the grade

for the post of lecturers but not for the purpose of

their inclusion into the BSES cadre.

Page 14 of 34

18. On the other hand, Mr. Vinay Navare, learned Senior

Counsel appearing on behalf of the + 2 lecturers

(respondents) would argue that the terms of the policy

decision dated 13.11.1985 as well as the Advertisement

No. 1/87 are unambiguous and it is clearly set out that

the posts of + 2 lecturers in Government schools are

created in the Junior Selection Grade of BSES.

According to Mr. Navare, the expression ex-cadre in the

appointment order was incorporated only to allay the

anxiety of the Assistant Teachers in the Government

Secondary Schools (members of the BSES), who because of

merger, apprehended loss of their seniority to the +2

lecturers. The 1981 Act controls taking over of Non-

government Secondary Schools and the notification

introduced by the 2009 Rules, framed under the 1981

Act, for encadrement of the +2 lecturers of the

Government schools with the nationalized schools,

without the relevant amendments to the 1981 Act, is

argued by Mr. Navare to be neither conclusive nor

legally acceptable.

Page 15 of 34

19. In his turn, Mr. Vijay Hansaria, the learned Senior

Counsel representing the interveners i.e. the Bihar

Education Service Association argues that the members

of the BES Association should not lose out on

seniority, on account of the merger of the contesting

respondents into the BES Cadre, from the initial date

of their appointment. This is apart from pointing to

the Bihar Education Service Class-I and Bihar Education

Service Class-II Rules 1973 and submitting that unless

due rules are amended, neither executive action nor

court orders can be a way out. He further contended

that the matter falls in the realm of state policy. The

aspect of the appointments being ex-cadre is stressed.

DISCUSSIONS AND FINDINGS

20. It is evident from the Notification dated

13.11.1985 that the posts of + 2 lecturers (in the

government schools) were created in the cadre of BSES,

in the pay scale of Rs. 940-1660/-. The cadre for the

+2 lecturers posted in the nationalized schools was not

specified therein, though the posts were created in the

Page 16 of 34 same pay scale. The subsequent Advertisement No. 1/87

also unequivocally stated that the applications for +2

Lecturers in Government schools were invited in the

BSES Cadre in the pay scale of Rs. 940- 1660/-. Those

selected were then granted fortuitous appointment in

either the government or the nationalized schools.

21. That the posts were constituted in the BSES Cadre

is adequately reinforced in the judgment dated

30.09.1997 in the CWJC No. 2445/1994 by Justice S.J

Mukhopadhaya, through which, the artificial distinction

in both categories of +2 lecturers (posted in either

Government or Taken Over schools) was obliterated. It

is a fact that the Bihar Pradesh +2 Lecturers’

Association moved Court primarily for redressal of the

pay scale anomaly of the +2 lecturers appointed in the

Government and taken over schools, out of the common

advertisement No. 1/87. It was projected in those

proceedings that while accepting the 5th Pay Revision

Committee’s recommendations, the State Government

provided for distinct pay scales to lecturers serving

Page 17 of 34 in the Government Secondary Schools and the

Nationalized Secondary Schools. The Court noticed the

discrimination between both sets of lecturers,

performing similar duty with similar nature of job and

same qualifications. The +2 lecturers accordingly were

held entitled to same scale of pay, i.e., Rs. 2000-

3500/- as fixed for the members of the Subordinate

Education Service (Junior Selection Grade). This way,

not only the pay difference was eliminated but more

significantly for this case, the lecturers serving in

Government/Nationalized +2 schools were treated as

equivalent to members of the BSES cadre by offering the

same pay scale attached to the BSES members.

Subsequently, in compliance of the judgment, the

Finance Department notified the common pay scale of Rs.

2000- 3500/- for the +2 lecturers in the Taken Over

schools vide its Resolution dated 10.06.1999, thereby

effectively treating them to be at par with the

Subordinate Education Service teachers.

Page 18 of 34

22. The above situation would negate the State’s

contention that the +2 lecturers are outside the BSES

cadre, only because the appointment letters stated that

their appointment was against ex-cadre posts on

temporary basis. Significantly, the pay scale mentioned

in the appointment order was Rs. 940-1660/-, which

matched the pay scale offered to the lecturers in the

Junior Selection Grade of the BSES (as reflected in the

notification dated 13.11.1985 and the advertisement No.

1/87).

23. The noteworthy take away from above is that the

appointment letter is at variance with all other

relevant documents, such as the advertisement; the

notification (13.11.1985)creating the posts in BSES; as

well as the Finance Department notifications, offering

pay scale equivalent to the members of the BSES. The

appointment letters, despite suggesting the post to be

of ex-cadre category, notably offered the same pay

scale attached to Government school lecturers in the

BSES Cadre. The learned counsel for the respondents on

Page 19 of 34 this aspect therefore appears to be correct in his

submission that the reference to ex-cadre in the

appointment letters was only to allay the anxiety of

the Assistant Teachers in the Government Secondary

Schools (members of the BSES), who apprehended loss of

their seniority. In such circumstances, the ex-cadre

reference in the appointment letters must not, in our

view, eclipse all the other contemporaneous documents,

supporting the contentions of the respondents.

24. It is also argued by the State’s counsel that the

recommendations of the Saran Singh Committee cannot be

applied qua the respondents, since the posts of +2

lecturers were not in existence in 1977 and were

created only in 1985. On this, it is seen that the

government is closemouthed and rather vague on the

total posts which existed in 1977; how many posts were

created subsequently and the precise number of posts

which existed as on 07.07.2006. Therefore, the State

cannot be allowed to raise such contentions when they

have failed to disclose how many posts existed

Page 20 of 34 initially and the stages at which, additional posts

were created by the government. Besides, the merger

decision (07.07.2006) pertinently omitted to say that

only posts in existence in 1977, were intended to be

merged.

25. Moreover, the Government decision (06.10.2006),

through which the +2 lecturers were denied the benefit

of merger with the BES, was not founded on the ground

that posts of +2 lecturers were not borne in 1977. The

ostensible reason was that the +2 lecturers were never

recognized in the BSES. Such attempt by the government

to supplement reasons, not found in their order, cannot

legally be permitted. In situation of this kind, the

ratio in Mohinder Singh Gill Vs. Chief Election

Commissioner, New Delhi6 is worth remembering where the

Court so correctly declared that validity of an order

by a statutory functionary must be judged by the

reasons mentioned therein and supplementary reasons in

the shape of affidavits must be excluded.

6 1978 (1) SCC 405 Page 21 of 34

26. Staying with the same point, we may also remind

ourselves of the telling opinion in Commr. of Police,

Bombay Vs. Gordhandas Bhanji7 where J. Vivian Bose

illuminatingly wrote as under:

“Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

Taking a cue from above, it must be said

unequivocally that the State must not be allowed to

bring in additional explanation to justify their

actions when those are conspicuous by their absence, in

the government decision.

27. The appellants’ other contention is that the +2

lecturers have no semblance of similarity with the

BSES, to enable assimilation into the BES. Only for

this ostensible reason, the +2 lecturers in

7 AIR 1952 SC 16

Page 22 of 34 nationalized and Government schools were amalgamated

with the teachers of nationalized schools, vide

notification dated 23.06.2009. On this, what is

relevant is that no intelligible differentia could be

pointed out by the state’s counsel to sustain such

arbitrary classification between +2 lecturers and the

BSES secondary level teachers, posted in government

schools. Therefore, such contention from the

appellants’ side, being devoid of any foundation, is

considered but rejected.

28. Significantly, as per Advertisement 1/87, the lower

pay scale of Rs. 850 – 1360/- was offered to the

teachers in the Secondary Schools in the cadre of BSES

as compared to the pay scale offered to the + 2

lecturers. Furthermore, the academic qualifications

specified therein for + 2 Lecturers was Post Graduation

in 2nd division, whereas for other posts, a bare

graduate would satisfy the prescribed qualification. As

such, the exclusion of the respondents from the BSES

cadre and consequently from BES, despite rendering

Page 23 of 34 continuous services in the same government secondary

schools as teacher members of the BSES, has led to a

discriminatory situation, wherein, the BSES teachers

who are junior (in terms of education qualifications

and pay scale) to the respondents in Government

secondary schools, have got the benefit of higher scale

of pay and also avenues of promotion to key controlling

positions in the education department. This would

surely infringe the rights of the +2 lecturers,

guaranteed under Article 14 and Article 16(1) of the

Constitution.

29. Instead of rectifying the anomalous situation

noticed above, the Government, in a rather arbitrary

fashion and without any application of mind to the

issue, vide notification dated 23.06.2009,

surprisingly positioned the +2 lecturers at par with

the teachers of the nationalized secondary schools. The

unacceptable justification given for this is that as a

result of the + 2 lecturers’ placement into the cadre

of nationalized school teachers, the +2 lecturers have

Page 24 of 34 been provided the promotional avenue to academic posts

of Head Master, and higher scale has also been provided

for them. However, the +2 lecturers are conspicuously

denied the opportunities for promotion to key

administrative posts which is available to those in the

BES Cadre. Such arbitrary action of the government in

favoring the BES officers to enable them to exclusively

occupy the key administrative posts, was noticed and

was subjected to court’s caustic comments in the

previous rounds of litigation8. Having read those and

also taking into account the repeated attempts by the

state to inordinately favour those in the BES cadre, we

are constrained to observe that the state government is

not acting bonafide and is persisting in their

iniquitous attempt to deny to the respondents, what is

legitimately due to them.

30. The following discriminatory action of the State is

necessary to be noticed to indicate their iniquitous

conduct. Firstly, the Bihar Non-Government Secondary

8 See discussion Supra Note 4

Page 25 of 34 Schools (Taken over of Control and Management) Act,

1981, does not authorize determination of the service

conditions of the +2 lecturers. The 1981 Act was

intended to provide for “taking over” of non-government

secondary schools under the state control, for

improvement, better organization and development of

Secondary Education in the state of Bihar. The +2

lecturers in government schools cannot be encadred with

teachers of ‘Taken Over Schools’ since the definition

of ‘Teacher’ in the 1981 Act shows ‘Teacher in the

Taken Over Secondary Schools’. Section 9 enables the

State Government to determine the service conditions of

the Headmaster, Teacher and non-teaching staff of only

the Taken Over Secondary Schools(but not of government

schools). Neither section 9 nor Section 15 of the 1981

Act empowers the State Government to amend Rules to

expand the scope of the Act. As such, the 2009 Rules,

introducing the notification (23.06.2009), purported to

be framed under section 9 read with section 15 of the

1981 Act, are found to be at variance with the

Page 26 of 34 provisions and the purpose of the 1981 Act. The

Notification (23.06.2009) is well beyond the ambit of

the 1981 Act, and could not therefore have been issued,

without the necessary amendments to the 1981 Act.

31. Next, let us test the impugned action of the

Government on the anvil of the Doctrine of Legitimate

Expectation. The notification (23.06.2009) besides

being legally untenable, would also deny the

substantive legitimate expectations, the respondents

nurtured, as members of the government schools in the

BSES cadre. The denial is particularly glaring in the

absence of promotional avenues for the respondents to

the controlling/supervisory posts in the administrative

wing of the education department. The respondents, in

course of their service as +2 Lecturers, would

reasonably expect to occupy the higher position in the

department, depending upon their inter-se seniority in

the common seniority list, but the Government action,

restricting movement through artificial sub-grouping of

+2 Lecturers with teachers of nationalized schools,

Page 27 of 34 have unreasonably belied their expectation. This would

suggest that the respondents were led up the garden

path by the appellants.

32. To understand the legal consequences arising

therefrom, useful reference can be made to R. V. Inland

Revenue Commissioners, ex parte M.F.K. Underwriting

Agents Ltd.9 (1989) where Lord Justice of Appeal, Thomas

Bingham, while invoking fairness as a rationale for

protecting legitimate expectations, expressed the

following :-

“If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. ... The doctrine of legitimate expectation is rooted in fairness.”

33. Another facet of denial of legitimate expectations

is underscored by the Court of Appeal of England and

9[1990] 1 W.L.R 1545

Page 28 of 34 Wales in the seminal case of Coughlan10, where the Court

preferred to use abuse of power as one of the criteria

for testing whether a public body could resile from a

prima facie legitimate expectation. In the Court’s

opinion, if the government authority induced an

expectation which was substantive, the upsetting of

that expectation, through departure from the expected

course of action in the absence of compelling public

interest, would be so unfair, that it would amount to

abuse of power. In the present case, the abuse of power

is discernible in the State’s disparate decision in

encadring the +2 lecturers with the teachers of

nationalized schools, notwithstanding the contrary

representation through the 1985 notification which

created the +2 lecturer posts and the 1987

advertisement under which, the respondents entered

service. Such manifest departure from the projected

course smacks of arbitrariness and the government

action, to selectively protect the interest of the BES

10R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213

Page 29 of 34 cadre, does not conform to rules of justice and fair

play.

34. Taking a cue from above, where the substantive

legitimate expectation is not ultra vires the power of

the authority and the court is in a position to protect

it, the State cannot be allowed to change course and

belie the legitimate expectation of the respondents. As

is well known, Regularity, Predictability, Certainty

and Fairness are necessary concomitants of Government’s

action and the Bihar government in our opinion, failed

to keep to their commitment by the impugned decision,

which we find was rightly interdicted by the High

Court.

35. Next thing to consider is the plea of the BES

Association as the Intervenor in this proceeding and

the submissions made on their behalf by the learned

senior counsel Mr. Vijay Hansaria. On this, the first

observation to be made is that the rights of an

intervener are circumscribed. The BES could have

arrayed themselves in the High Court but decided at

Page 30 of 34 their own peril, to keep away. The Writ Petition of the

respondent was pending for about 6 years in the High

Court and those in the BES, who are holding key

positions in the education department, could not be

oblivious of CWJ Case No. 18793 of 2008 and other

connected matters. As such, within the limited scope

available to them, the intervenors, who were sitting on

the fence all along, cannot now be permitted to plead a

new case for the first time before this Court.

Moreover, the Counter Affidavit filed by the State

before the High Court, do not persuade us to lean in

favour of the members of the BES Association.

36. In the earlier rounds, this court in Bihar State

Govt. Secondary School Teachers Assn. Vs. Bihar

Education Service Assn.11 and also in the Contempt

proceedings flowing therefrom in Bihar State Govt.

Secondary School Teachers Assn. Vs. Ashok Kumar Sinha12

critically noted the vigorous attempts by the BES

Association in obstructing the integration of the BSES

11 Supra 12 Supra

Page 31 of 34 with the BES and the unfair conduct of the Bihar

government in safeguarding the interests of those in

the BES cadre. Those previous challenges to the merger

decision were rejected by the Court. As such the BES

Association, as the party watching from the wings,

cannot be permitted to secure now what they failed to

achieve in the previous litigations. In circumstances

like this it needs to be said that in an adversarial

litigation, the fence sitters cannot be placed at par

with the front runners.

37. In consequence of the foregoing discussion, our

finding is that the +2 lecturers’ posts were created in

the BSES Cadre. This was represented in the

Notification (13.11.1985), and also in the

Advertisement No. 1/87. The conduct of the Government

in providing pay scale parity with the BSES teachers in

the secondary schools, reinforces such conclusion.

These relevant and attending circumstances eclipse the

implication of the ex-cadre reference in the

appointment letters. What is also discernible is that

Page 32 of 34 the encadrement through notification dated 23.06.2009

has frustrated the legitimate expectations of the

respondents and was undertaken with the unfair aim to

block the respondents’ promotion to key positions,

particularly in the administrative wing of the

Education department. Such unfairness in State’s action

cannot be countenanced by Court. Resultantly we record

our approval with the reasoning and conclusions in the

impugned judgment in favour of the +2 lecturers to the

effect that they are indeed the members of the

Subordinate Educational Service and the State

Government must treat the +2 lecturers appointed

pursuant to the Advertisement No. 1/87 as members of

the Subordinate Educational Service and all service

benefits as the members of the Subordinate Educational

Service should therefore be extended to them.

38. Accordingly, no good reasons are seen to interfere

with the impugned judgment. The appeals stand dismissed

without any order on costs. However, since the time

stipulated by the High Court has expired, the State is

Page 33 of 34 granted 6 months’ time to ensure compliance with High

Court’s direction in letter and spirit.

………………………………………………………J. [K.M. JOSEPH]

………………………………………………………J. [HRISHIKESH ROY] NEW DELHI MAY 05, 2022

Page 34 of 34