CIVIL WRIT JURISDICTION CASE No.5689 OF 1996 In the matter of an application under Article 226 of the Constitution of India. 1. SMT.MAMTA KUMARI, wife of Sri Bijay Kishore Prasad, Assistant Teacher, Government Basic School, Mahendru, P.S.- Mahendru, District- Patna. 2. Smt. Nira Kumari, wife of Sri Sashikant Shekhar, Assistant Teacher, Government Basic School, Mahendru, P.S.- Mahendru, District- Patna-6 3. Smt. Veena Prasad, wife of Dr. Pranav Kumar, Assistant Teacher, Government Basic School, Sadaquat Ashram, P.S.- Sadaquat Ashram, Patna-10, District- Patna. 4. Smt. Kumari Premshila, wife of Sri Om Prakash, Assistant Teacher, R.K.K. Government Basic School, Patna City, P.S.- Malsalami, District- Patna 5. Smt. Veena Kumari, wife of Sri Dinesh Prasad Singh, Assistant Teacher, Government Basic School, Balavapur, P.S.- Asthwan, District- Nalanda 6. Sri. Bijendra Prasad, son of Sri Kameshwar Prasad, Assistant Teacher, Government Basic School, Sevdah, P.S.- Harnaut, District- Nalanda 7. Ram Yatna Singh Yadav, son of Sri Ramjee Yadav, Assistant Teacher, Government Basic School, Sevdah, P.S.- Harnaut, District- Nalanda 8. Sri Akhileshwar Prasad, son of Sri Jagdish Prasad, Assistant Teacher, Government Basic School, Balwapur, P.S.- Asthawan, District- Nalanda 9. Sri Binod Prasad, son of Sri Jagdish Prasad, Assistant Teacher, Government Basic School, Sonachari, P.S.- Pervalpur, District- Nalanda 10. Sri Akhileshwar Prasad, son of Sri Ram Sagar Singh, Assistant Teacher, Government Basic School, Ajanaura, P.S.- Nursarai, District- Nalanda 11. Smt. Meena Kumari, D/O Sri Brahmdeo Prasad, Assistant Teacher, Government Basic School, Ajanaura, P.S. Nursarai, District- Nalanda. 12. Gopaljee, Son of Sri Ram Kawal Ram Kasera at present posted as Assistant Teacher, Government Basic School, Jhaunwabenwalia, P.S.- Bihiya, District- Bhojpur. 13. Sri Braj Kishore, son of Sri Bengali Das, Assistant Teacher, Government Basic School, Gokhulpur Math, P.S.- Rahui, District- Nalanda 14. Sri Yugal Kishore, Son of Sri Babu Lal Das, Assistant Teacher, Government Basic School, Gokhulpur Math, P.S.- Rahui, District- Nalanda 15. Sri Ram Lakhan Yadav, son of Sri Radhe Yadav, Incharge Head Master, Government Basic School, Akhtiyarpur, P.S.- Bikram, District- Patna. 16. Sri Sudhir Kant Sharma, son of Sri Swayamber Mistri, Assistant Teacher, Government Basic School, Akhtiyarpur, P.S.- Bikram, District- Patna. 17. Sri Nawal Kishore, son of Sri Gopal Sharan Singh, Assistant Teacher, Government Basic School, Paliganj, P.S. Paliganj, District- Patna. 18. Sri Ram Prasad Singh Yadav, son of Sri Ram Chhapit Singh Yadav, Assistant Teacher, Government Basic School, Sadisopur, P.S.- Bihta, District- Patna. 19. Sri Nagendra Kumar, son of Sri Chandra Deo Singh, Assistant Teacher, Government Basic School, Nisarpura, P.S.- Bikram, District- Patna. 20. Ram Ishwar Singh, son of Sri Ram Bilash Singh, Assistant Teacher, Government School, Jhauwan Venvaliya, P.S. Bihiya, District- Bhojpur. 21. Sri Majoj Kumar, son of Sri Bhagwan Mishra, Assistant Teacher, Government Basic School, Amarai Nawada, P.S. Bihiya, District- Bhojpur. 22. Sri Sri Niwas Ram, son of late Ram Sakhi Ram, Assistant Teacher, Government Basic School, Buxar, P.S. Nagar Thana, Buxar, District- Buxar 23. Sri Janardan Ram, son of Late Banhu Ram, Assistant Teacher, Government Basic School, Piraunta, P.S. Muphassil Arrah, District- Bhojpur. 2 24. Sri Shambhu Nath Sharma, son of Sri Ram Akhal Singh, Assistant Teacher, Government Basic School, Mahuli, P.S. Muffassil, Arrah, District- Bhojpur 25. Sri Satyendra Mochi, son of Sri Prashidh Mochi, Incharge Head Master, Government Basic School, Nirakhapur, P.S.- Paliganj, District- Patna. 26. Sri Mahesh Kumar, son of Kashi Tanti, Assistant Teacher, Government Basic School, Gonpura, P.S. Phulwarisharif, District- Patna. 27. Sri Bhagwan Prasad Singh, son of Sri Ganesh Prasad Singh, Assistant Teacher, Government Basic School, Usapha, P.S. Gauri Chak, District- Patna. 28. Md. Basinuddin Ansari, son of Md. Bhola Ansari, Assistant Teacher, Government Basic School, Usapha, P.S.- Gauri Chak, District- Patna. 29. Sri Surendra Kumar Sinha, son of Sri Ram Keshwar Singh, Assistant Teacher, Government Basic School, Gonpura, P.S. Phulwarisharif, District- Patna. 30. Sri Sujendra Kumar, son of Late Bankey Bihari Singh, Assistant Teacher, Government Basic School, Nauranghbad, P.S. Dhanaruya, District- Patna. ------- Petitioners Versus 1. THE STATE OF BIHAR 2. The Director, Primary Education-cum-Additional Secretary, Human Resources Development Department, Government of Bihar, Patna. 3. The Regional Deputy Director of Education, Patna Division, Patna. 4. The District Superintendent of Education, Patna. 5. The District Superintendent of Education, Bhojpur. 6. Ramanuj Singh, son of Sri Bhagwan Sharan Singh, Assistant Teacher, Government Basic School, P.S. Paliganj, District- Patna. -------- Respondents With CWJC No.8265 oF 1998 RAMANUJ SINGH, son of Shree Bhagwan Sharan Singh, Assistant Teacher, Government Basic School (Abhyashala) Mahendru, Police Station- Sultanganj (Patna town) District- Patna. -------- Petitioner Versus 1. THE STATE OF BIHAR 2. The Director (Primary Education), Secondary, Primary and Adult Education Department, New Secretariat, Patna. 3. The Regional Deputy Director of Education, Patna Division, Patna. 4. Mahesh Kumar, son of Kanshi Tanti, resident of Phulwarisarif, P.S. Phulwarisarif, District- Patna. --------- Respondents With CWJC No.2585 oF 1999 VISHNU DEO SHARMA, son of Late Ram Narayan Sharma, an Assistant Teacher, Government Basic School, Sadakat Ashram, Police Station- Patliputra, District- Patna. --------- Petitioner Versus 3 1. THE STATE OF BIHAR 2. The Director (Primary Education) Secondary, Primary and Adult Education Department, New Secretariat, Vikas Bhawan, Patna. 3. The Divisional Education Establishment Committee, Patna Division, Patna, through its President (Regional Deputy Director of Education) 4. The Regional Deputy Director of Education, Patna Division, Patna. --------- Respondents. For The Petitioner :Mr. Ram Balak Mahto, Sr. Advocate Mr. Chitranjan Sinha, Sr. Advocate Mr. Ajay, Advocate For the State :Mr. Saket Tiwary, Advocate, J.C. to G.P. 16 For The Respondent :Mr. Rajendra Pd. Singh, Sr. Advocate Mr. Tej Bahadur Singh, Sr. Advocate Mr. Vijay Kumar Pandey, Advocate(with other two cases) For Respondent No. 25:Mr. Pratap Sharma, Advocate. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. The 30 petitioners in C.W.J.C. No. 5689 of 1996 have prayed for quashing memo no. 2392 dated 18.11.1995 contained in annexure-1 issued by the Regional Deputy Director of Education, Patna Division whereby 25 out of 30 persons who were also petitioners of C.W.J.C. No. 4199 of 1989 have been included in the divisional cadre in compliance with the order of this Court passed in C.W.J.C. No. 4199 of 1989 and analogous cases and in compliance of order of the Supreme Court contained in annexure-9 to the writ application. Annexure-1 declares that 26 persons 4 mentioned therein have been adjusted in basic schools of the Patna Division as per the order of this Court. Petitioners have challenged annexure-1 on several grounds and had in fact stated that the order of the High Court Division Bench which I will refer to while dealing with this case has not taken into consideration several circulars and Government orders while passing the order. In the alternative the petitioners also contend that the persons mentioned in annexure-1 ought to be treated as teachers of basic schools from the date on which annexure-1 has been issued which is 18.11.1995. One of the issues raised in this case is that the Assistant Teachers mentioned in annexure-1 and others who have not come to this Court were appointed in elementary schools, permitted to work in basic schools as there was no vacancy in the elementary schools and as such they belong to the District Level Cadre as they were appointed by the District Level Appointing Committee. Petitioners were appointed in the basic schools in the year 1988-89. The decision of this case is based on the interpretation of the 5 Bihar Non-Government Elementary School Act, 1976 (hereinafter referred to as the „1976 Act‟) and the Rules framed by the State Government under Article 309 and Section 8 of the Bihar Non- Government Elementary School Act, 1976. The respondents were appointed under the Rules framed for appointment of teachers under Article 309 of the Constitution of India read with Section 8 of the Bihar Government Elementary School Act, 1976. An advertisement was issued vide annexure-2/1 by which applications were invited on 10.10.1984 by the District Superintendent of Education for appointment of Assistant Teachers in elementary schools of Bhojpur district. The respondents applied and were appointed in different schools. It is the case of the respondents that they were appointed in basic schools whereas it is the case of the petitioners that the advertisement was for appointment in elementary schools but since there was no vacancy in the elementary schools, the respondents were posted and permitted to work in basic schools. After considerable time the respondents were returned back to the 6 elementary schools. The order of reversion of the respondents came to be challenged in C.W.J.C. No. 4199 of 1989 and analogous cases before a Division Bench. It would be relevant for this Court to refer to the order of the Division Bench and quote certain paragraphs which would be relevant for deciding the issues before the Court. Paragraph 6 :- “The petitioners in these applications have raised a short question. Our attention has been drawn to a notification dated 11.11.1975 as contained in Annexure- A to the counter affidavit in terms whereof the State framed rules in exercise of its power conferred upon it in terms of the proviso appended to Article 309 of the Constitution of India known as State Basic Schools, Classifications, Appointment, Promotion and Transfer of the Assistant Teachers Rules, 1975. It is accepted that in terms of the Provisions of Rule 4 of the said Rules, the District Superintendent of Education was the competent authority. In terms of Rule 5 of the said Rules, a cadre of the directly recruited Assistant Teachers in the State Basic Schools was created. The said teachers of the aforementioned cadre could be recruited in the post of Matric Trained Teacher.” Paragraph 8 :- “The State also in their counter affidavit admitted that so far as the Assistant teacher of the Basic Schools are concerned they 7 were atleast in a divisional cadre whereas the Assistant teacher of elementary school are borne in a District level Cadre. The State, however, has contended that in view of the observations made by the Supreme Court the Regional Deputy Director is the appointing authority and pursuant thereto a notification dated 17.8.1988 as contained in Annexure-6 to the writ application has been issued by the State of Bihar whereby and whereunder the Regional Deputy Director of Education was delegated with the power of appointing authority.” After discussing the stands of the parties the Division Bench decided as follows at paragraph 12 of the judgment. “In view of the fact that the petitioners were in the basic schools in terms of the statutory Rules, in our opinion, they have derived a legal right to continue in the said schools. As admittedly, they are borne out of a different cadre and the terms and condition of their service are also distinct and different from those appointed in elementary schools, there cannot be any doubt that the petitioners could not have been transferred from their own cadre to another cadre without their consent nor could they be directed to be adjusted in a different cadre which is nothing but would amount to a fresh appointment by way of transfer. Even if the validity or legality of the notification dated 17.8.1988 as contained in Annexure-6 to the writ application be not gone into, as it is not necessary to do so in 8 the instant case, the said notification must operate prospectively. By reason of the aforementioned notification dated 17.8.1988 the rules validly framed by the State of Bihar in exercise of its power under the proviso appended to Article 309 of the Constitution of India could not have been amended nor altered with retrospective effect. In any event, the phraseology used in the aforementioned notification dated 17.8.1988 states no such retrospective operation therefore nor in our considered view, the legal right vested in the petitioners could be taken away thereby.” Thereafter the Court allowed the writ application and quashed the orders under challenge by which the petitioners had been reverted from the post of Assistant Teachers of the Government Basic Schools to the elementary schools. Three facts emerge from this judgment. Firstly, it appears that the Division Bench has accepted the fact that the petitioners were teachers of Basic Schools in terms of statutory provisions i.e. the provisions 1981 Rules. Secondly, the Court says that the petitioners of CWJC No.4199 of 1989 derive the legal rights to continue in the said schools and thirdly that the terms and conditions of their service is 9 distinct from the service conditions of teachers of elementary schools, and could not be altered without their consent. Therefore, the Court has held that they could not have been transferred from their own cadre to another cadre. This observation of the Court apparently has led and in my opinion incorrectly led the State authorities to ask for options from the Assistant Teachers. Therefore, the order contained in annexure-1 could only mean that the State Government was seeking to take options from the persons mentioned in Annexure-1 in order to obtain their consent to transfer them back to the elementary schools rather than to take their consent for allowing them to remain in basic schools. The reason for concluding aforesaid would be obvious in view of the fact that since the Division Bench of this Court has held that the petitioners had a right to continue to work as teachers in the basic schools, their transfer to elementary schools could not have been passed without obtaining their consent. In no event can this Court hold that the order contained in Annexure-1 would mean that the petitioners have exercised their 10 option to remain in the basic school and the petitioners should be treated as teachers of the basic schools from the date on which the option was obtained or the date on which Annexure-1 was issued, notwithstanding the language of annexure. Before turning to the main contentions raised on behalf of the petitioners, it would also be relevant to refer to an order passed by another Division Bench of this Court in C.W.J.C. No. 8949 of 1992 disposed of on 12.3.1993 (Annexure-13). The pleadings involved in this case are not available to this Court as the matter is very old and as such this Court is relying on what emerges from the order. The writ application was filed challenging the order dated 10.7.1992 by which the petitioners had been directed to return to the District Cadre as Assistant Teachers in nationalized elementary schools. From the order it would appear that the petitioners were appointed as Assistant Teachers in the District Cadre in elementary schools by the District Education Establishment Committee. After being appointed in elementary schools they were subsequently made to work in 11 basic schools and were claiming to be treated as teachers of basic schools. The Court held that at best they could be treated to be on deputation in the cadre of the basic schools teachers and as such the Court refused to interfere with the order reverting the petitioners of C.W.J.C. No. 8949 of 1992 to the cadre of elementary schools. The parties have advanced arguments stating that the order passed by the Division Bench contained in Annexure-13 is in direct conflict with the order contained in Annexure-8 to the present writ application referred to and quoted above. The facts which led to the issuance of order on 12.3.1993 are not before this Court and it appears that in fact the petitioners were appointed as a teacher of elementary schools on 29.12.1987 and as such the Court refused to interfere with the order of reversion. It is also apparent that the questions that are now being raised before me were not raised before the Hon‟ble Judges hearing C.W.J.C. No. 8949 of 1993 and the order was passed in the facts of that case, and therefore, it cannot be said that there is a conflict between the orders passed by the two 12 Division Benches. There is yet another order passed by a Single Bench of this Court contained in Annexure-D to the counter affidavit filed on behalf of respondent no. 25. Annexure-D refers to the order passed in Annexure-A i.e. Jagat Narayan Singh and Ors. Hon,ble Justice S.J. Mukhopadhyay has specifically stated “that the moment a person is appointed such appointment is being made against a post of a cadre and/or ex cadre. The order of appointment from which it can be derived as to which cadre such person is being appointed.” Merely because the appointing authority has been changed the cadre of a person would not change. The petitioners have submitted with respect to the order dated 2.12.1996 (Annexure-D) that the learned Single Bench has not considered the effect of the 1975 Rules viz a viz the 1981 Rules and as such this order would not come in the way of this Court deciding the issues that have been raised in the present writ application. In the background aforesaid this Court will now come to the issues raised on behalf of the petitioners. The main submission of the petitioners is that the respondents were 13 appointed under Rule framed by the State Government vide letter no. 2412 dated 5.1.1981 which envisages that the District Level Establishment Committee would appoint teachers of elementary and basic schools and that the teachers appointed by the District Level Establishment Committee would be treated in the District Cadre. The respondents on the other hand claimed that they were appointed by the Divisional Level Establishment Committee and as such they belong to the Divisional Cadre and should be treated to be in a separate cadre. The State Government has framed Rules under Article 309 of the Constitution of India issued by memo no. 2749 dated 11.11.1975 for the purpose of regulating the appointment, promotion, transfer and other conditions of services. The Rule is known as the Bihar Government Basic Schools Appointment, Promotion, Transfer and Service Rules, 1975 (hereinafter referred to as the „1975 Rules‟). As per the 1975 Rules, appointment in basic schools would be made of those persons who hold the qualification of being matric trained. The Divisional Level Establishment Committee 14 chaired by the Regional Deputy Director is the authority to make appointments in basic schools. The Government also framed an Act known as the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 (hereinafter referred to as the „Act‟) by which the Government took over several Non-Government Schools for the purpose of imparting education and administering the service conditions etc. of the said schools taken over. Section 7 of the Act aforesaid empowers the Government to make Rules consistent with the Act for carrying out the purpose of Acts and Section 8 gives the Government power to remove any difficulties which may arise in giving effect of the provisions of the Act. The Act and the Rules made thereunder govern the functioning etc. of the elementary schools. It may be pointed out here that the teachers working in the elementary schools are different and distinct from the teachers who are appointed in basic schools. The teachers of the basic schools are promoted to the post available in the Sub-ordinate Education Service whereas the teachers appointed in elementary/primary schools are promoted to 15 the post of Headmaster. In other words the teachers of the basic schools are eventually promoted to the administrative posts whereas this is not the case of the teachers of primary schools. The dispute arose when on 5.11.1981 vide memo no. 2412, the State Government framed Rules under Article 309 Read with Section 8 of the 1976 Act and notification no. 2749 dated 11.11.1975 which deals with the appointment etc. of basic schools for the purpose of making appointment of Assistant Teachers in elementary/primary and basic schools (hereinafter referred to as the „1981 Rules‟). Rule 1 of the 1981 Rules provides that vacancies created in the basic schools and in the elementary schools (Grade VI) due to promotion, death, retirement etc. would be filled by a District Level Establishment Committee and the appointments would be made through the District Superintendent of Education. It further says that all such person who are appointed would be deemed to be in the District Cadre. It also emphasize that those persons who had been appointed vide the Rules framed under 16 notification no. 2749 dated 11.11.1975 would be treated to be validly appointed and their promotion etc. would be governed by the said Rules dated 11.11.1975. Rule 2 provides that those persons who are to be appointed or promoted holding the qualification of Intermediate trained or B.A. trained would be governed by the Rules mentioned in notification no. 2749 dated 11.11.1975. It further provides that if teachers are not available for promotion amongst the teachers of basic schools then those persons holding the required qualifications and are teachers of elementary schools could be considered for promotion however, such person who are promoted would be counted to be in the District Cadre. It is contended on behalf of the petitioners that those persons who were appointed in basic schools in 1981 to 1988 would be treated to be in the District Cadre and the teachers of the basic schools who were appointed prior to the issuance of the 1981 Rules or after the modification made in 1988 which empowers the Regional Deputy Director of Education to be the appointing authority should be treated 17 separately as the 1981 Rules specifically envisages that persons who were appointed by the District Establishment Committee whether appointed in the basic schools or elementary schools would be treated to belong to the District Cadre as opposed to teachers of basic schools appointed by the Divisional Level Establishment Committee who should be treated to be in the Divisional Cadre. In the mean time, a notification was issued in the year 1988 and the power was again given to the Regional Deputy Director of Education i.e. the Divisional Level Establishment Committee to make appointment of teachers in the basic school cadre. This came about when the order passed in the case of Jagat Narayan Singh was challenged in the Supreme Court. The Supreme Court apparently held that the power of appointment would lie with the Divisional Level Establishment Committee which is headed by the Regional Deputy Director of Education. I have already referred to the judgment passed in the case of Sri Jagat Narayan Singh and the Division Bench judgment of this Court passed in C.W.J.C. No. 8949 of 1992. The 18 judgment passed in the case of Sri Jagat Narayan Singh was challenged before the Supreme Court and was dismissed along with the Interlocutory Application. On behalf of the writ petitioners, it has been argued by Mr. Ram Balak Mahto and Mr. Chitranjan Sinha, learned Senior Counsels that the notification and Rules issued in 1981 should be given the true meaning and this Court should interpret them and hold that all those persons who were appointed in basic schools or posted subsequent to their appointment in basic schools should be treated as a class apart in the District Cadre although the petitioners and respondents now by virtue of a judgment referred to above are teachers of basic schools. It has been submitted that the judgment delivered in the case of Sri Jagat Narayan Singh does not discuss the provisions of the 1981 Rules and in fact does not interpret the Rules and as such this Court should interpret the Rules in favour of the petitioners. I have already given reason why the Rule cannot be interpreted in favour of the petitioners. I do not agree with the interpretation given by the counsel for the petitioners, for the reasons that the Court 19 recognized that the petitioners were working in basic schools and as such they could not have been sent back to elementary schools. I have already given reason for stating that the order contained in Annexure-1 would not give a fresh cause of action to the petitioners to move this Court. I agree with the view of Justice S.J. Mukhopadhyay when he has observed that mere change in the appointing authority would not amount to creation of a Cadre. It would only create anomaly in the entire structure of the teachers belonging