IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.8339 of 2006. =========================================================== 1. Dharmendra Brahmchari, S/o Sri Anoop Singh, resident of Village – Krishna Bigha, P.O. – Bashdih, P.S. – Hilsa, District – Nalanda, at present Assistant Teacher, K.B. Sahay High School, Sheikhpura, P.S. – Shastri Nagar, District – Patna, 2. Raghunath Ram, S/o Late Bhadau Ram, resident of Village – Fatehali, P.O. Tungi, District – Nalanda, at present Assistant Teacher, K.B. Sahay High School, Sheikhpura, P.S. – Shastri Nagar, District – Patna, 3. Sia Saran Pd., S/o Late Thakur Prasad Singh of Village – Hasanpur, P.O. – Nahub, P.S. – Rajgir, District – Nalanda, at present Assistant Teacher, Navin Adarsh High School, Kankarbagh, Ashok Nagar, Road No. 5, Patna – 20, 4. Yogendra Prasad, S/o Late Ved Narayan Prasad of Village – Anantpur, P.O. – Deora, P.S. – Ghoshi, District – Jehanabad, at present Assistant Teacher, High School, Fatwah, District – Patna, 5. Sri Krishna Prasad, S/o Late Rohi Singh, resident of Village – Chandu Bigha, P.O. – Asharhi, P.S. – Hilsa, District – Nalanda, at present Assistant Teacher, High School, Yashwantpur, P.O. – Rukhai, P.S. – Chandi, District - Nalanda .... .... Petitioner/s Versus 1. The State of Bihar, 2. The Secretary, Secondary Education, Govt. of Bihar, Patna, 3. The Director, Secondary Education, Bihar, Patna, 4. The Regional Deputy Director of Education, Patna Division, Patna, 5. The District Education Officer, Patna 6. The District Education Officer, Nalanda .... .... Respondent/s =========================================================== Appearance : For the Petitioner/s: Mr. R.K. Rajan, Mr. Shailendra Kumar, Mr. Pratik Kr. Sinha & Mr. Ajay Kr. Sinha, Advocates. For the Respondent/s: Mr. Tej Bahadur Singh, AAG 7 and Mr. B.S. Pandey, AC to AAG 7. =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 2/15 2 The 22nd June 2011. JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) This petition under Article 226 of the Constitution is filed by the Assistant Teachers employed in Non Government High Schools taken over by the State of Bihar under the provisions contained in the Bihar Non-Government Secondary School (Taking Over of Control and Management) Act, 1981 (hereinafter referred to as `the 1981 Act’). The petitioners (5 in number) have challenged the constitutional validity of Rules 4 (Ka) (1) and 7 (1) (Ka) (2) of the Bihar Nationalised Secondary Schools (Service Conditions) Rules, 1983 (hereinafter referred to as `the 1983 Rules’) as amended by the Bihar Nationalised Secondary School (Service Conditions) Amendment Rules, 2005 (hereinafter referred to as “the 2005 Rules” or as “the 2005 amendment”). At the outset we may note that the petitioners have averred that they have filed this petition in representative capacity. Nevertheless, neither the petitioners have sought permission of the Court to file petition in representative capacity; nor such permission has been granted by the Court; nor the procedure envisaged by Order 1 Rule 8 of the Code of Civil Procedure has been followed. This petition is, therefore, essentially filed by the petitioners to pursue their individual interest and is treated as such. According to the petitioners, they are the Assistant Teachers in the Nationalised Schools and were, under the prevalent Rules, eligible for promotion as `Head Master’ in the Secondary Schools. By the impugned Notification, the State of Bihar has modified the eligibility criteria for promotion to the post of Head Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 3/15 3 Master. The petitioners who were hetherto eligible for promotion as Head Master in the Nationalised Secondary Schools have been, on account of modification in the eligibility criteria, rendered ineligible for such promotion. The impugned Rules which take away or abridge the petitioners’ chance of promotion, are arbitrary and are contrary to the rule of equality enshrined in Articles 14 and 16 of the Constitution. The petitioners have also submitted that prior to 25th June 2005 as many as 1500 posts of `Head Master’ were lying vacant. The procedure for promotion to the said vacant posts had commenced in the year 2004. The said 1500 posts, therefore, are required to be filled in according to the 1983 Rules as they stood prior to 2005 Amendment. The petition is contested by the State of Bihar. The counter affidavit filed by the State of Bihar indicates that since taking over of the Non-Government Secondary Schools under the 1981 Act, somewhere in the year 1989 the State Government decided to extend the benefit of the service conditions prevalent in the Central Government Schools to the Nationalised Schools. Accordingly, pay and allowances of the teachers and non-teaching staff of the Nationalised Schools were brought at par with the Central Government Schools with effect from 1st January 1996. The State Government appointed a Fitment – cum – Pay Revision Committee under the Chairmanship of Hon’ble Mr Justice S. Sarwar Ali (Retd.). The said committee under its report recommended that appointment to the post of Head Master be made by direct recruitment and by promotion in the ratio of 1 : 1 (50% each); that a Head Master shall possess Post Graduate Degree coupled with a recognised Degree or Diploma in Education. The Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 4/15 4 impugned 2005 amendment to the 1983 Rules has been made to give effect to the recommendation made by the Fitment – cum – Pay Revision Committee to maintain parity with the Central Government Schools. It has also been stated that prior to the 2005amendment only those Assistant Teachers were eligible for promotion as Head Master who possessed Bachelor’s Degree with a Degree or Diploma in Education or any equivalent qualification in education and were brought in Selection Grade. None of the petitioners at the relevant time was brought in the Selection Grade. None of them was, therefore, eligible for promotion as Head Master in a Nationalised School. The State of Bihar, with a view to improving and better organizing the Secondary Education in the State of Bihar, enacted the 1981 Act to bring the Non-Government Secondary Schools under its control. Under Section 3 of the 1981 Act, the State Government took over the management and control of such Non- Government Secondary Schools with effect from 2nd October 1980. Section 4 thereof provides inter alia that the conditions of service of the Head Masters, Teachers and non teaching employees of such schools will continue to be the same unless specifically altered by the State Government. Under the powers conferred by Section 9 read with Section 15 of the 1981 Act, the State Government has framed the 1983 Rules to govern the service conditions of the Head Masters, Teachers and other employees of the Nationalised Schools. Rule 4 of the 1983 Rules provides for eligibility. Clause (Ka) thereof provides for appointment/promotion to the post of Head Master; the minimum qualifications required were a Bachelor’s Degree in Arts or Science or Commerce from a Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 5/15 5 recognised University and a Degree or Diploma in Education from a recognised University or an institution or Board recognised by the State Government. Sub-clause (3)(Ba) of the said Clause (Ka) provides for promotion to the post of Head Master. As envisaged by the said sub-clause (3)(Ba), for promotion as Head Master an Assistant Teacher must have rendered a minimum eight years’ service in Selection Grade. In case adequate number of teachers with requisite service in Selection Grade are not available, such teachers from Selection Grade whose total service in Selection Grade and Senior Scale is not less than 13 years were entitled to promotion to the post of Head Master. Rule 7 of the 1983 Rules provides inter alia for appointment of Head Master by promotion and by direct recruitment in the ratio of 4 : 1 (80% by promotion, 20% by direct recruitment). Since its amendment by 2005 Rules, the aforesaid ratio of appointment by promotion and by direct recruitment has been modified to 1: 1 (50% each) as stated hereinabove. Since the amendment by 2005 Rules, only those Assistant Teachers in Selection Grade, who possess Master’s Degree in Arts or Science or Commerce of a recognised University, are made eligible for promotion as Head Master. In case required number of Post Graduate Trained Teachers in Selection Grade are not available, the Assistant Teachers in Senior Scale with a minimum service of 20 years can be promoted as Head Master. Thus, under the 2005 amendment in case of non-availability of Assistant Teachers with requisite qualification, the Assistant Teachers in Senior Scale also are made eligible for promotion provided they possess requisite educational qualification (trained post graduates) and have rendered a total service of not less than 20 years. Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 6/15 6 Learned Advocate Mr. R.K. Rajan has appeared for the petitioners. He has taken us through the pleadings and the records. He has submitted that earlier a writ petition was filed in this Court. The said petition was allowed by this Court. The State of Bihar was directed to fill in the vacant posts of Head Master. As the said direction was not complied with, a contempt petition being MJC no. 181 of 1999 came to be filed in this Court. Pending the said contempt petition, in view of the directions issued by the High Court, in due compliance with the Writ of Mandamus issued by the High Court, on 1st July 2004 the Director, Secondary Education, Bihar, Patna issued a direction to prepare seniority list of eligible Assistant Teachers in reserved and unreserved categories. A further direction was issued by the State Government on 21st July 2004. Pursuant to the said directions, a provisional seniority list of eligible Assistant Teachers was published on 28th September 2004. As the names of the petitioner nos. 4 and 5 were not included in the said provisional seniority list, they lodged their objection against the said provisional seniority list. Before the said seniority list was finalized and promotion could be made according to the seniority, the 2005 amendment was notified on 25th June 2005. On account of the 2005 amendment, the petitioners, who do not possess Post Graduate Degree, have been rendered ineligible for promotion as Head Master. Mr. Rajan has submitted that the Rules of 2005 are not made retrospective; they should, therefore, apply prospectively. In other words, only those posts which have fallen vacant on the date of the 2005 amendment (25th June 2005) or thereafter can be filled in in accordance with the amended Rules. The posts which were already lying vacant on the date of the Notification (25th June 2005) Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 7/15 7 are required to be filled in by the persons possessing the requisite qualifications according to then prevalent 1983 Rules. In any case, the process for promotion having been commenced prior to the date of the 2005 amendment, the said process is necessarily required to be completed in accordance with the then prevalent Rules. In support of his submissions Mr Rajan has relied upon the judgments of the Hon’ble Supreme Court in the matters of Y.V. Rangaiah & Ors. V. J. Sreenivasa Rao & Ors. [AIR 1983 SC 852; of A.A. Calton V. The Director of Education & Anr. [AIR 1983 SC 1143]; of P. Ganeshwar Rao & Ors. V. State of Andhra Pradesh & Ors. [AIR 1988 SC 2068]; of P. Mahendran & Ors. V. State of Karnataka & Ors. [AIR 1990 SC 405]; of N.T. Bevin Katti, etc. V. Karnataka Public Service Commission & Ors. [AIR 1990 SC 1233]; of K. Manjusree V. State of Andhra Pradesh & Anr. [(2008) 3 SCC 512] and of Hemani Malhotra V. High Court of Delhi [2008 (3) PLJR 378 (SC)]. The petition is contested by learned Additional Advocate General 7 Mr. Tej Bahadur Singh appearing for the State. He has submitted that the right to promotion is not a vested right, the chance of promotion is not a condition of service and that the service rules can be validly altered by the State unilaterally. In support of his submissions, he has relied upon the judgments of the Hon’ble Supreme Court in the matters of State of M.P. & Ors. V. Raghuveer Singh Yadav & Ors. [(1994) 6 SCC 151]; of Dr. K. Ramulu & Anr. Vs. Dr. S. Suryaprakash Rao & Ors. [(1997) 3 SCC 59] and of this Court in the matter of Manju Kumari V. The State of Bihar & Ors. [2002 (4) PLJR 173]. In the matter of Y.V. Rangaiah & Ors. V. J. Sreenivasa Rao & Ors. [AIR 1983 SC 852], the Hon’ble Court was Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 8/15 8 considering the appointment to the Grade of Sub-Registrars Grade II in the Department of Registration and Stamps, Andhra Pradesh. The relevant instruction provided for preparation of panel as on 1st September in every recruitment year. For the year 1976, however, such panel was not prepared instead it was prepared belatedly in the month of April 1977. In the meantime in March 1977 an amendment was brought to the rules to oust the Lower Division Clerks from consideration for appointment as Sub-Registrar Grade II restricting such appointment by promotion from amongst the Upper Division Clerks. In challenge to the said amendment, the Hon’ble Supreme Court held that the panel for appointment ought to have been prepared as on 1st September 1976. By not doing so, the right of the appellants (Lower Division Clerks) of being considered for appointment was adversely affected. The Court held, “The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules.” This judgment is later distinguished by the Hon’ble Supreme Court in the matter of Dr. K. Ramulu & Anr. Vs. Dr. S. Suryaprakash Rao & Ors. [(1997) 3 SCC 59]. In the matter of P. Ganeshwar Rao & Ors. V. State of Andhra Pradesh & Ors. [AIR 1988 SC 2068], the question was of applicability of amendment of the Rules made on 28th April 1980 in respect of the Government decision of February 1980 to notify 18 vacancies for the recruitment year 1978 and 18 vacancies for the recruitment year 1979 in addition to the 15 vacancies already notified to the Public Service Commission. The Hon’ble Court while interpreting the amendment “37-½ per cent of the substantive vacancies arising in the category of Assistant Engineers shall be filled by the direct recruitment” observed, “If the above clause Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 9/15 9 had read “37-1/2 per cent of the substantive vacancies in the category of Assistant Engineers shall be filled by the direct recruitment” perhaps there would not have been much room for discussion. The said clause then would have applied even to the vacancies which had arisen prior to the date of the amendment but which had not been filled up before that date. We feel that there is much force in the submission made on behalf of the appellants and the State Government that the introduction of the word `arising’ in the above clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment.” In the matter of P. Mahendran & Ors. V. State of Karnataka & Ors. [AIR 1990 SC 405], the Hon’ble Supreme Court has reiterated the well settled rule of construction that “every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect”. In the matter of N.T. Bevin Katti, etc. V. Karnataka Public Service Commission & Ors. [AIR 1990 SC 1233], the Hon’ble Court did not approve the action of the State in not allowing the recruitment process to be completed and in directing to hold the recruitment process afresh in accordance with the revised instructions. The judgment is clearly distinguishable. In that matter the question was of recruitment to the posts of Tehsildar. The recruitment process had commenced in accordance with the existing instructions. The list of successful candidates was published in the Official Gazette of the State. The State Government, however, did not approve the said selection and directed the Public Service Commission to prepare a fresh list in accordance with the procedure laid down in its order dated 9th July Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 10/15 10 1975. In challenge to the said action, the Hon’ble Court referred to paragraph 11 of the 1975 Order which stipulated that “reservations made for any category of posts or service in respect of which advertisement has already been issued before the issue of the Government Order dated 9th July 1975 would be deemed to have been validly made.” Thus, the State Government had made a conscious decision to save the selections for which the advertisement had already been issued prior to 9th July 1975 order. Relying on the said paragraph and on the earlier decisions in the matters of Y.V. Rangaiah & Ors. V. J. Sreenivasa Rao & Ors. [AIR 1983 SC 852] and of P. Ganeshwar Rao & Ors. V. State of Andhra Pradesh & Ors. [AIR 1988 SC 2068], the Hon’ble Court held “Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that the amended Rules shall be applicable to the pending selections.” In the matter of Hemani Malhotra V. High Court of Delhi [2008 (3) PLJR 378 (SC)] and in the matter of K. Manjusree V. State of Andhra Pradesh & Anr. [(2008) 3 SCC 512], the question was that of minimum qualifying marks for viva voce. The Hon’ble Court having approved the right of the appointing authority to provide for minimum qualifying marks for viva voce Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 11/15 11 disapproved the prescription of minimum qualifying marks for viva voce after the selection process was commenced or the written examination was held and the call letters for interviews were issued. The Hon’ble Court said that the minimum qualifying marks can be prescribed both for written examination and interview but such prescription has to be done in advance. The matter at issue, being totally different, these judgments have no applicability to the facts of the present case. In the matter of State of M.P. & Ors. V. Raghuveer Singh Yadav & Ors. [(1994) 6 SCC 151], after the selection process had commenced written examination was held, interview cards were issued, in view of the amendment to the relevant rules, the State of Madhya Pradesh cancelled the recruitment process and directed to make recruitment afresh in accordance with the amended rules. Challenge to the said action succeeded before the High Court. However, in appeal before the Hon’ble Supreme Court by the State of Madhya Pradesh, the Hon’ble Court upheld the action of the State. The Court held, “It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules.” Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 12/15 12 In the matter of Dr. K. Ramulu & Anr. Vs. Dr. S. Suryaprakash Rao & Ors. [(1997) 3 SCC 59], similar was the issue. Pending the consideration for amendment to the existing rules the Government decided not to fill the panel vacancy till the amendment. Consequently, no promotion was made till the existing rules were repealed on 12th June 1996. The Court observed that the writ petitioner had not acquired a vested right for being considered for promotion in accordance with the repealed rules. Following the aforesaid Supreme Court judgments the Division Bench of this Court in the matter of Manju Kumari V. The State of Bihar & Ors. [2002 (4) PLJR 173] held, “…no person can claim any vested or indefeasible right for appointment. The candidates have only limited right to be considered for appointment and when this right is not affected it is doubtful if he can object to the mode of selection or appointment”. We have perused the proceedings of the above referred MJC No. 181 of 1999. It appears that one Md. Auraish had filed CWJC No. 11716 of 1996 to challenge the continuance of Incharge Head Master of Project Girls High School, Madhopur, West Champaran. In course of hearing of the writ petition the Court noticed that the posts of Head Master in the Project High Schools and the Nationalised Schools were manned by temporary arrangement. Regular promotions were not made. By order dated 20th May 1998 this Court (Coram: Mr Justice N. Rai) recorded “The Director has also stated that he will take steps for filling up the posts of Headmaster in Nationalised High Schools and he will complete the exercise in this regard within six months from today.” As the posts of Head Master were not filled up within Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 13/15 13 six months as assured, one Kedar Nath Pandey filed the above referred MJC No. 181 of 1999 under the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India. The said application was “dismissed as withdrawn” on 13th July 2007. There is no room to dispute the propositions that an enactment or a statutory rule, unless made retrospective by express provision or by necessary implication, will have prospective effect; nor there can be a dispute that the selection process once started must be brought to its logical end in accordance with the terms and conditions mentioned in the advertisement or according to the rules prevalent at the time of the advertisement; nor the power of the Government to amend the statutory rules is questionable. Undoubtedly, the 2005 amendment has not been made retrospective either by express provision or by necessary implication. The questions that arise in the present set of facts are whether the selection process had commenced before the date of the 2005 amendment as averred by the petitioners; whether on the date of the 2005 amendment the petitioners had acquired a right to be considered for promotion to the post of Head Master or, in other words, a vested right had accrued to the petitioners for being considered for promotion as Head Master in accordance with the 1983 Rules as they stood prior to 2005 amendment; whether filling up the vacant posts in accordance with the amended rules can be said to be the retrospective operation of the amended rules. In our opinion, answer to each of the above questions is `No’. At the outset we may reiterate that the Government has power to amend the rules unilaterally. It is the specific case of the Government that on the date of the 2005 amendment none of the petitioners was in the Selection Grade; none of them was eligible Patna High Court CWJC No.8339 of 2006 dt. 22-06-2011 14/15 14 for promotion as Head Master under the 1983 Rules as they stood prior to the 2005 amendment. The contention has not been denied by the petitioners. Thus, on the date of the 2005 amendment, no right of being