Case: STATE OF BIHAR &amp; ORS Vs. SHYAMA NANDAN MISHRA

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, 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. [1990] 1 W.L.R 1545 (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 Wales in the seminal case of Coughlan R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213, 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 Courts 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 States 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 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 Governments 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 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. (Supra) and also in the Contempt proceedings flowing therefrom in Bihar State Govt. Secondary School Teachers Assn. Vs. Ashok Kumar Sinha (Supra) critically noted the vigorous attempts by the BES Association in obstructing the integration of the BSES 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 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 States 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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 Committees recommendations, the State Government provided for distinct pay scales to lecturers serving 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.22. The above situation would negate the States 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 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.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 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 Delhi 1978 (1) SCC 405  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.26. Staying with the same point, we may also remind ourselves of the telling opinion in Commr. of Police, Bombay Vs. Gordhandas Bhanji AIR 1952 SC 16  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.Only for this ostensible reason, the +2 lecturers in 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 states 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 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 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 courts caustic comments in the previous rounds of litigation (See discussion Supra Note 4). 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 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 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, have unreasonably belied their expectation. This would suggest that the respondents were led up the garden path by the appellants.In the present case, the abuse of power is discernible in the States 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 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 Governments 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 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. (Supra) and also in the Contempt proceedings flowing therefrom in Bihar State Govt. Secondary School Teachers Assn. Vs. Ashok Kumar Sinha (Supra) critically noted the vigorous attempts by the BES Association in obstructing the integration of the BSES 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 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 States 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.