TMI Blog2012 (11) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... which is respondent No.66 in these two appeals, set up a three member committee, in March 1976, with Shri Saran Singh, Member Board of Revenue, and Administrative Reforms Commissioner, as its Chairman. The terms of reference of this Committee were as follows:- To hasten the avenues for promotion in the Bihar Civil Services, the government has approved junior selection grade 20%, senior selection grade 12.50% and posts of senior Deputy Collector 2.5%. The same percentage has been applied for junior selection grade and senior selection grade in the Bihar Engineering Service. On this basis, requests have been coming from various state services associations that due to lack of opportunity for promotion in their cadres, there is stagnation, which must be removed. 1.2 Hence, keeping in view the strength and present promotional avenues in various State service cadres, to analyse the problem of stagnation and to recommend means to tackle this problem and promotional opportunities, a committee of the following officers is constituted:- 1) Member, Board of Revenue-Chairman 2) Chairman, Public Grievances Bureau- Member 3) Finance Commissioner- Member 4. The committee drew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e committee suggested that the proposals should come into effect from 1st January, 1977. 6. The recommendations of the committee were accepted by the State Government, and the State Government (Finance Department) issued a notification dated 11.4.1977, which was subsequently published in the Gazette Extra-Ordinary on 27.4.1977. The decision with respect to the recommendations was contained in Schedule-1 of the notification. As far as the education department and the miscellaneous cadre are concerned, the decision notified reads as follows:- Schedule-1 (emphasis supplied) First round of litigation 7. It is the case of the petitioner Secondary School Teachers Association that, though this notification was issued by the State Government on 11.4.1977, the State Government took no steps to implement the same. They represented for its implementation from time to time, but that was without any effect. They learnt that one provisional gradation list was prepared in the year 1986, but it was never circulated or made known to the Petitioner association. Another gradation list was prepared in 1995, and they found that the same had left out the members of the Petitioner associ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on list had been published for one or the other teaching cadre. The learned single judge therefore, passed the following order dated 2.2.2000:- In the circumstances, I direct the commissioner cum Secretary, Secondary, Primary and Mass Education, government of Bihar to act upon the government decision contained in Resolution dated 11.4.1977 so far it relates to the Education Service of the Education Department. 10. The State of Bihar felt aggrieved by this common order passed in the two Writ Petitions, and therefore filed two Letters Patent Appeals No.980 and 998 of 2000. The State Government contended that there was no proposal to merge the sub-ordinate teachers into the Bihar Education Service Class-II. It was further pointed out that 50% posts of Bihar Education Service Class-II were filled by the promotion of the subordinate teachers. This was however, denied by the appellants herein by pointing out that factually however, hardly any such promotions had taken place. They also pointed out that the notification dated 11.4.1977 had been implemented in other services in the manner in which they were canvassing. The Division Bench dismissed these two appeals by order dated 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dres within the Gazetted State Services. 14. The Director (Administration) cum Deputy Secretary, the Department of Secondary, Primary and Mass Education of Government of Bihar, filed two affidavits. In the first affidavit, he stated in para 4(c) that in the notification there is no mention of 59 posts, and hence the confusion arose. He further stated that the Government had, therefore, decided to locate those 59 posts by an advertisement and call for information. In para 6/A of the second affidavit, however, he stated that there was no mention of any merger in the notification. 15. The learned Single Judge who heard the petition referred to the earlier orders up to the Supreme Court, and then observed that, in view thereof, the matter should have attained finality. He further observed that it was really unfortunate that the state had again started giving its own different meaning to interpret the aforesaid orders, rather going to the extent of even stating that some shadow-boxing had been done in the High Court and the Supreme Court, to obtain certain orders. He stated that it appeared from the notings on the files of the State Government that the Education Department had, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that the subordinate education service was not a state service. The Division Bench of the High Court however, dismissed the LPA by its order dated 10.3.2003, observing that the controversy had already attained finality with the order of the Supreme Court and nothing more was required to be recorded before passing this order. However, in the meanwhile Division Bench had also passed an order dated 27.1.2003 directing the Chief Secretary, Government of Bihar and Director Administration of Bihar to remain present in the appeal to explain the non-implementation. 18. These two orders led the State Government to file Civil Appeal No.4466/2003, wherein the earlier grounds were reiterated. A counter was filed on behalf of Janardhan Rai Ors. by the Gen. Secy. Of the Bihar State Government Secondary School Teachers Association which had been impleaded as a respondent by an order passed by this Court. Therein it was specifically stated in paragraph 13 as follows:- Thus, since the members of the Respondent Association belonged to a clearly identifiable cadre known as B.S.E.S Cadre and were not part of any isolated post and also since their posts were not declared Gazette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 1977. The contempt petition is still pending before the High Court and has been stayed in the present appeal. At the end of the day, we are satisfied that whether the implementation has been done in the manner required by the Resolution or not is for the High Court to decide since the High Court is in seisin of the contempt petition. Hence, we feel that it is not necessary for us to interfere in the matter, particularly since our attention has been drawn to the statements made on the floor of the legislative assembly that the Government itself is thinking of implementing the Resolution in the manner that is being suggested by the Respondents. In any event, since the contempt petition is pending, the High Court will examine the matter and, if satisfied that the Resolution has not been implemented, deal with the contemnors according to law. In this view of the matter, we do not think that it is necessary for us to interfere at all. Civil Appeal is dismissed. No order as to costs. Stay of the contempt proceedings is vacated forthwith. ... .. J. (B.N. Srikrishna) . J. (Lokeshwar Singh Panta) New Delhi April 19, 2006 19. It appears that in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77. 16. The concurrence of Finance Deptt. has been obtained. 17. The approval of the Departmental Minister has been obtained in the proposal. 18. The approval of the council of ministers in the proposal contained in para 15 of the memorandum is solicited. (emphasis supplied) 20. Accordingly, necessary resolution was issued under the order of the Governor of Bihar on 7.7.2006, stating that the teachers of the Subordinate Education Service (Teaching Branch) male and female cadre, are merged into Bihar Education Service Class II w.e.f. 1.1.1977, in accordance with the Finance Department Notification dated 11.4.1977, and that appropriate orders will follow after evaluating personal benefits arising out of the order. A notification was also subsequently issued on 9.10.2006 giving effect to the above resolution with respect to three teachers mentioned specifically in that notification. Third round of litigation 21. Now, it was the turn of the Bihar Education Service to file their Writ Petition bearing CWJC No.10091/2006, wherein, they challenged the Government resolution dated 7.7.2006 providing for the merger of the Bihar Subordinate Education Service into the Bihar E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but directed the Govt. to consider their cases if they are in any way situated similar to the miscellaneous cadre. 24. It is relevant to note that after this judgment and order of learned Single Judge dated 31.10.2007, the Govt. of Bihar came out with a consequential notification dated 19.11.2007 quashing the above Resolution No.1209 dated 7.7.2006 (which had merged the teachers of subordinate services into Bihar Education Service Class-II), and withdrawing the financial benefits flowing therefrom. 25. Some of the individual teachers who felt aggrieved by this judgment and order dated 31.10.2007, filed LPAs Nos.941/2007, 946/2007, 947/2007 and 974/2007. As far as the Secondary School Teachers Association is concerned it directly filed an SLP to this Court against the order dated 31.10.2007, bearing SLP No.8031/2008, but this Court vide its order dated 16.3.2009 noted that those individual LPAs were pending before the High Court, and therefore granted liberty to the association to approach the High Court by way of LPA. Accordingly, the petitioner association filed LPA No.418/2009. All those LPAs were heard together. 26. The appellant association as well as the Bihar Educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench by the impugned judgment and order dated 21.5.2010. The Division Bench by the same order also dropped the contempt matter then pending in CWJC No.8679/2002. The orders passed by the learned Single Judge as well as by the Division Bench have led to the present two Civil Appeals (arising out of SLP (C) Nos.26675-76 of 2010), which is the third occasion when this controversy is coming up to this Court. 29. When the Special Leave Petitions leading to these appeals came up for consideration, initially a notice was issued on 7.3.2011, and lateron after hearing the counsel for respondents, the operation of the judgment and orders passed by the learned Single Judge as well as by the Division Bench came to be stayed by an order passed on 4.7.2011. The State of Bihar has now moved IA Nos. 19-20 of 2011 to vacate the order of stay. The appellants on the other hand have contended that in view of the stay granted by this Court, the State of Bihar and its officers are expected to take steps to implement the Resolution dated 7.7.2006, and since that was not being done they have filed the Contempt Petition (Civil) No.386-387 of 2011 against the Chief Secretary of the Govt. of Bihar an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he was not pressing for the action in contempt. 31. As against this, it was submitted on behalf of the employees of the Bihar Education Service that the Subordinate Education Service is a feeder cadre for promotion to the Bihar Education Service. Their pay is different, and the merger, as proposed in the resolution dated 7.7.2006, will affect their seniority retrospectively. In their submission, the State Govt. notification of 11.4.1977 has basically to be read in the light of the Saran Singh Committee report, which according to them did not extend the recommendations to the cadre of the subordinate teachers. Mr. Akhilesh Kumar Pandey learned counsel, appearing for them, therefore submitted that the SLPs should be dismissed. 32. On behalf of the State of Bihar submissions were advanced by Mr. Nagendra Rai, learned senior counsel. He submitted that the notification passed by the State Govt. on 11.4.1977 ought to be read as confined to the Saran Singh Committee report only. There was no merger contemplated in the Govt. notification, and the order of this Court dated 19.4.2006 should not be read as confined only to the hearing of the Contempt Petition by the High Court. He su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Education Department of the State Govt. The Finance Department continued to maintain that the subordinate Education Service could not be merged into the Bihar Education Service Class-II. The Education Department however in its first affidavit, in this Writ Petition, recorded that the notification of 11.4.1977 did not state that it is concerning only 59 posts. Notings on the files of the Govt. clearly showed that the Education Department had understood that for the implementation of the notification, the merger of the two cadres was necessary, and had for that purpose prepared a draft resolution for the approval of the Finance Department. In view of this factual scenario, and also in view of the previous orders, the learned single judge allowed the CWJC No.8679/2002, and passed the order directing the steps for merger of the subordinate teachers into the Bihar Education Service. The appeal of State of Bihar was also dismissed by the Division Bench by observing that the controversy had already attained finality with the orders of the Supreme Court. 35. The order passed by this Court, thereafter, in the Civil Appeal filed by the State Govt. bearing No.4466 of 2003 dated 19.4.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Court, and thought that he had the liberty to reopen the controversy despite the decisions rendered in the first two rounds. He, therefore, passed the order allowing that Writ Petition. Now what we find is that the State Government once again changed its stand, and issued a Notification canceling the Resolution dated 7.7.2006. And when the appellants preferred their LPA, the State Government continued to maintain its changed position. To say the least this was not expected from the State Government. Unfortunately enough, the Division Bench also approved this re-opening of the controversy once again. 38. In the present appeals we are concerned with the legality of the Govt. Resolution dated 7.7.2006 which the State Govt. defended before the single judge but gave up the defence in the appeal before the Division Bench. The State Govt. went to the extent of contending that the decision in CWJC No.8679/2002 could not be treated as binding, although it had been confirmed by Division Bench and by this Court. Unfortunately enough we must record that the Division Bench also failed to interfere with this digression on the part of the State Govt. and the learned Single Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That apart, even if one looks to the merits of the rival contentions, there is no dispute that although the rules do provide for a channel of promotion to the subordinate teachers, actually the chances of promotion for them are very less. There is a serious stagnation as far as the subordinate teachers are concerned. The Saran Singh Committee was essentially constituted to go into this very issue. As can be seen from the report of the committee, the various service associations in the State were clamouring for appropriate provision for promotion on par with the Bihar Engineering Service. It is true that the report of the committee does refer to the 59 posts in the miscellaneous cadre while examining the problem. However, after directing the shifting of the engineers in the Education Department to the Public Works Department, and the doctors to the Health Services in sub-clause (1) and (2) of para 11.10, the committee recommended in sub-clause (3) that the remaining posts should be included in the general cadre and manned by officers of Bihar Education Service as far as possible . The notification issued by the State Govt. on 11.4.1977 approved the recommendation of the committee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... events of the Civil Appeals, the appellants have specifically referred to the fact that these subordinate services are included in Appendix-16 of the Bihar Service Code, and therefore, it is contended that it will be incorrect to state that the subordinate service is not a part of the State Service. If we refer to the code we find that all the posts in subordinate service other than those classified as Class-I and Class-II State Services are mentioned at Item 119 in Appendix-16 of the Bihar Service Code, 1952. Thus, there is no merit in this objection as well. 44. This entire discussion leads us to only one conclusion that the learned Single Judge who heard the petition CWJC No.10091/2006, which began the third round of litigation filed on behalf of the Bihar Education Service Association, had no business to re-open the entire controversy, even otherwise. The State Govt. had already passed a resolution dated 7.7.2006 after the order of this Court dated 19.4.2006. While examining the legality of that resolution (which was defended by the State Govt. at this stage before the learned Single Judge) the entire controversy was once again gone into. The law of finality of decisions whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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