principles of Resjudicata- Contempt of court - Service matter - In compliance of Apex court judgment a Resolution merging the cadre of BSES with BES was issued on 07.07.2006 and the BSES teachers were granted benefits of the merger, like enhancement of payscale, promotion etc. At this stage, a writ petition was filed by BES Association (BESA) challenging the merger. - A single judge of the High Court allowed it vide judgment dated 31.10.2007, which was affirmed by a Division Bench on 21.05.2010. - Govt. Recalled the merger and recalled the benefits immediately after the orders of single judge - This judgment was challenged before this Court by filing SLP.- implementation of court order - instead of getting clarity from Apex court - started second round of litigation - High court also ignored the principles of Resjudicata and Unveiled curtains for second round of litigation - Apex court gave some directions and directed to reopen this contempt petition on failure of the Govt. in implementation =
The conclusive portion of the detailed judgment dated 23.11.2012
reflects raison d’etre for arriving at such a conclusion and the
precise nature thereof. We, therefore, reproduce the same hereunder
for the sake of further discussion:
“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 07.07.2006
after the order of this Court dated 19.04.2006. 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 which is enshrined in the principle of res-judicata or
principles analogous thereto, does not permit any such re-
examination, and the learned Judge clearly failed to recognize
the same.
45. For the reasons stated above, these appeals (arising out of
SLP Nos.26675-76 of 2010) are allowed. The judgment and order
passed by the Division Bench of Patna High Court in LPA
No.4182009 and other LPAs dated 21.05.2010, and that of the
learned Single Judge dated 31.10.2007 in CWJC No.100912006 are
set-aside and the said Writ Petition is hereby dismissed.
Consequently the notification dated 19.11.2007 issued pursuant
to the decision of the Single Judge will also stand quashed and
set-aside. The State Govt. Resolution dated 07.07.2006 is
upheld. The state shall proceed to act accordingly. I.A.
Nos.19-202011 are dismissed. As stated by Mr. Patwalia, learned
senior counsel for the appellants, the appellants no longer
press for the action for contempt arising out of CWJC
No.86792002. Contempt Petiton Nos. 386-387/2011, will also
accordingly stand disposed of, as not pressed.
46. The attitude of the State Govt. in the matter has caused
unnecessary anxiety to a large number of teachers. The State
Govt. must realize that in a country where there is no much
illiteracy and where there are a large number of first
generation students, the role of the primary and secondary
teachers is very important. They have to be treated honourably
and given appropriate pay and chances of promotion. It is
certainly not expected of the State Govt. to drag them to the
Court in litigation for years together.
47. Though the appeals stand disposed of as above, we do record
our strong displeasure for the manner in which the State of
Bihar kept on changing its stand from time to time. This is not
expected from the State Govt. The manner in which the learned
Single Judge proceeded with the Writ Petition No.1009/2006 to
reopen the entire controversy, and also the Division Bench in
LPA No.418/2003 in approving that approach is also far from
satisfactory. If the orders passed by this Court were not clear
to the State Govt. or any party, it could have certainly
approached this Court for the clarification thereof. But it
could not have setup a contrary plea in a collateral proceeding.
We do not expect such an approach from the State Govt. and
least from the High Court. Having stated this, although we have
expressed out displeasure about the approach of the State
Government, we refrain from passing any order as to costs.”=
We thus, dispose of these Contempt Petitions with the following
directions:
(i) The combined gradation list issued on 17.8.2007 is revived
and is to be acted upon and implemented by the Respondents/
Authorities, or
Suitable amendment in the alternative be made in Rule 27 of 2014
Rules giving option to the teachers also, as permitted to other
sub cadres.
(ii) It would be open to the respondents not to demote those
BES Officers who are holding administrative assignment on the
higher posts. However, that would not be at the cost of those
petitioners belonging to teaching sub cadre who, as a result of
combined seniority list, have become senior to BES Officers. We
leave it to the Government to find whatever solution they have
to deal with this issue.
(iii) Consequential benefits which may accrue to the petitioners
shall be accorded to them.
(iv) The entire exercise be done and accomplished within a
period of 3 months.
(v) On failure on the part of the respondents/ administration
to take the aforesaid steps, it would be open to the petitioners
to move an I.A. in these very Contempt Petitions seeking its
revival with prayer to proceed further against the respondents
in accordance with law.
vi) The petitioner shall also be entitled to the costs of these
proceedings, which we fix at Rs. 50,000/-.
2014 ( May. Part ) http://judis.nic.in/supremecourt/filename=41520
SURINDER SINGH NIJJAR, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION (CIVIL) NO. 88-89 OF 2013
IN
CIVIL APPEAL No. 8226-8227 of 2012
Bihar State Govt. Sec. Scl. Teachers Assn. ….Petitioner(s)
Versus
Ashok Kumar Sinha & Ors. ….Respondent(s)
J U D G M E N T
A.K. SIKRI, J.
1. These contempt proceedings arise out of the judgment and order dated
23.11.2012 passed by this Court in CA Nos. 8226-8227 of 2012. Before
we take note of the exact nature of directions given in that judgment
which according to the petitioners have been flouted contumaciously and
deliberately, we would like to take note of the history of litigation
culminating in passing of the said judgment.
2. The petitioner is an Association representing the teachers of the Bihar
Subordinate Education Service (hereinafter referred to as BSES for
brevity). They had filed a writ petition in the Patna High Court
claiming merger of their cadre with the Bihar Education Service
(hereinafter referred to BES for brevity). The writ petition was
allowed and the LPA and the SLP filed against the same were dismissed.
Since the benefits of merger of cadre were still not being granted,
another writ petition was filed, which too was allowed and affirmed in
LPA. Although leave was granted in the SLP filed by the State of
Bihar, ultimately the Civil Appeal was dismissed by the judgment dated
19.04.2006 resulting in the outcome in favour of the petitioner.
3. In compliance of the said judgment of this Court, a Resolution merging
the cadre of BSES with BES was issued on 07.07.2006 and the BSES
teachers were granted benefits of the merger, like enhancement of
payscale, promotion etc. At this stage, a writ petition was filed by
BES Association (BESA) challenging the merger. A single judge of the
High Court allowed it vide judgment dated 31.10.2007, which was
affirmed by a Division Bench on 21.05.2010. This judgment was
challenged before this Court by filing SLP.
4. Immediately after the judgment of the learned single judge, the State
Government withdrew the Resolution of merger dated 07.07.2006 by a
notification dated 19.11.2007 expressly mentioning therein that the
same was being issued in light of the High court judgment dated
31.10.2007 and thereby all benefits of merger of cadre were withdrawn.
Several consequential benefits had been granted to the teachers
pursuant to the merger by issuing various Resolutions. These benefits
were also withdrawn and in fact a Resolution was passed by the state
government on 17.01.2008 directing that the teachers would get pay and
other benefits, as they were getting prior to the merger, thereby
nullifying the effect of earlier Resolution of merger dated 7.7.2006.
5. The Special Leave Petition was granted and appeal was ultimately heard
finally. Eventually this appeal was allowed by a detailed judgment
dated 23.11.2012, thereby setting aside the judgment of the High Court.
This Court also quashed the notification of the State Government dated
19.11.2007, by which the benefits of merger granted to the teachers had
been withdrawn. As a corollary State Government’s Resolution dated
07.07.2006 was upheld and restored by which the cadre of the BSES
teachers, Teaching Branch had been merged with that of BES and the
State Government was directed to act accordingly.
6. The conclusive portion of the detailed judgment dated 23.11.2012
reflects raison d’etre for arriving at such a conclusion and the
precise nature thereof. We, therefore, reproduce the same hereunder
for the sake of further discussion:
“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 07.07.2006
after the order of this Court dated 19.04.2006. 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 which is enshrined in the principle of res-judicata or
principles analogous thereto, does not permit any such re-
examination, and the learned Judge clearly failed to recognize
the same.
45. For the reasons stated above, these appeals (arising out of
SLP Nos.26675-76 of 2010) are allowed. The judgment and order
passed by the Division Bench of Patna High Court in LPA
No.4182009 and other LPAs dated 21.05.2010, and that of the
learned Single Judge dated 31.10.2007 in CWJC No.100912006 are
set-aside and the said Writ Petition is hereby dismissed.
Consequently the notification dated 19.11.2007 issued pursuant
to the decision of the Single Judge will also stand quashed and
set-aside. The State Govt. Resolution dated 07.07.2006 is
upheld. The state shall proceed to act accordingly. I.A.
Nos.19-202011 are dismissed. As stated by Mr. Patwalia, learned
senior counsel for the appellants, the appellants no longer
press for the action for contempt arising out of CWJC
No.86792002. Contempt Petiton Nos. 386-387/2011, will also
accordingly stand disposed of, as not pressed.
46. The attitude of the State Govt. in the matter has caused
unnecessary anxiety to a large number of teachers. The State
Govt. must realize that in a country where there is no much
illiteracy and where there are a large number of first
generation students, the role of the primary and secondary
teachers is very important. They have to be treated honourably
and given appropriate pay and chances of promotion. It is
certainly not expected of the State Govt. to drag them to the
Court in litigation for years together.
47. Though the appeals stand disposed of as above, we do record
our strong displeasure for the manner in which the State of
Bihar kept on changing its stand from time to time. This is not
expected from the State Govt. The manner in which the learned
Single Judge proceeded with the Writ Petition No.1009/2006 to
reopen the entire controversy, and also the Division Bench in
LPA No.418/2003 in approving that approach is also far from
satisfactory. If the orders passed by this Court were not clear
to the State Govt. or any party, it could have certainly
approached this Court for the clarification thereof. But it
could not have setup a contrary plea in a collateral proceeding.
We do not expect such an approach from the State Govt. and
least from the High Court. Having stated this, although we have
expressed out displeasure about the approach of the State
Government, we refrain from passing any order as to costs.”
7. It is clear from the above that the Court took the view that once
decision of merger was not only upheld by this Court in its earlier
judgment dated 19.04.2006, but thereafter it was even acted upon by the
State Government by passing Resolution dated 07.07.2006, there was no
reason for the High Court to reopen the matter in a Writ Petition at
the instance of BES Association. The Court, therefore, in categorical
terms upheld the Resolution dated 07.07.2006 effecting the merger of
two services namely BSES and BES. Since this merger was undone by the
State Government by passing another Resolution dated 19.11.2007, this
latter Resolution was quashed. The effect of these directions was to
restore status quo ante by reinforcing the position with the issuance
of Resolution merging the two cadres on 07.07.2006 and conferring all
benefits of merger on to the members of the petitioner's Association,
viz. teachers belonging to erstwhile BSES.
8. According to the Petitioner, after the aforesaid judgment was given,
several representations were made to the State Government, on a
virtually daily basis, to restore the earlier position consequent upon
the merger of the two cadres but it was of no avail. In these
representations, the Petitioners also called upon the State Government
to give the consequential benefits granted pursuant to merger
notification by restoring the same and stated that these benefits would
include upgradation of posts, fixation of higher pay, payment of
arrears, promotions etc. However, instead of implementing the
directions contained in the judgment, the Petitioner received letter
dated 24.01.2013 from Respondent No.4, namely, the Director (Admn.)-cum-
Additional Secretary, Department of Education, Government of Bihar)
stating therein that the proposal was sent for the approval of merger
and the Petitioner were asked to provide details of pay scales etc. of
the BSES teacher to expedite the matter. According to the Petitioner
referring the matter to the Cabinet to approve the merger itself was a
contemptuous act inasmuch as there was no question of fresh approval
from the Cabinet regarding merger. According to the Petitioner with the
upholding of the Resolution dated 7.07.2006, which was a Resolution of
merger, that Resolution stood revived and restored by the Court itself
and the Government was only required to grant the consequential
benefits to the BSES teachers by passing formal orders in this behalf.
Notwithstanding the same, in compliance with the request letter dated
24.01.2013, the Petitioner submitted the required details vide
communication dated 28.01.2003. However, even thereafter nothing
happened even when the matter was persued repeatedly and almost on
daily basis with the Government. It is at that stage that present
contempt petition was filed on 23.01.2013 alleging that the Respondents
herein had deliberately, willfully and intentionally failed to comply
with the directions contained in the judgment dated 23.11.2012 by
refusing to grant all admissible benefits of mergers to the
Petitioners.
9. Notice in this contempt petition was issued. Thereafter various orders
were passed from time to time taking note of the developments happening
at the government’s end which included approval for merger and grant of
certain benefits by the State Cabinet. It would be apt to take note of
steps taken by the State Government, in brief, hereunder:
(a) On 01.03.2013, the State Cabinet approved the proposal for
merger. This proposal which was approved was of the following
nature:
“6. At the time of issuance of Resolution No.1209 dated
07.07.2006 the estimated amount of expenditure was 64
Crore. Presently this amount is Rs.104 crores.
7. (i) In compliance of the order of the Hon’ble Supreme
Court dated 23.11.2012, it is proposed that the Resolution
No.1209 dated 07.07.2006 be revived and Notification
no.1855 dated 19.11.2007 be annulled.
(ii) Consequential Benefits are proposed to be given to
the cadre of teachers of Bihar Subordinate Education
Service (Teaching Branch) Male and Female after merger.
8. Approval of Finance Departments has been obtained.”
(b) After the approval of merger by the State Government,
Resolution dated 17.04.2013 was passed by the Education
Department, Government of Bihar. Though as per para 6, earlier
Notification dated 19.11.2007 was withdrawn and Resolution dated
07.07.2006 was revived, in para 7 while giving consequential
benefits it was mentioned that for the purpose of granting these
benefits upto date list from the Director, Secondary Education
was to be obtained and Bihar Education Service Department of
Examination Rules, 1973 and order of status quo given by the
Supreme Court on 04.07.2011 are to be scrutinized. It was
mentioned that separate orders would be issued only thereafter
in this regards.
As per the Petitioner, introduction of these conditions for
grant of consequential benefits was not only contrary to the
judgment of the Court but even contrary to the Cabinet approval
as no such conditions were prescribed in the approval granted by
the State Cabinet.
(c) Thereafter orders dated 24.04.2013 were passed reviving ACP
benefits which were earlier granted.
As per the Petitioner even while doing so, in Para 5 of the
said order it was mischievously mentioned that after the matter
for grant of consequential benefits w.e.f. 01.01.1997 was
examined, in course of such examination it has been found that
before issuing Resolution No.1209 dated 07.07.2006 all points
were not fully considered.
(d) On 20.07.2013 press release was issued by the Government
calling upon all the teachers of erstwhile BSES including heirs
of deceased teachers/retired teachers to submit service books,
appointment/promotion orders, testimonials of educational
qualifications within three days for the purpose of granting
them the benefits.
In the mean time BSES Association filed I.A. in disposed of C.A.
No. 8228-8229 of 2012 seeking modification of the said judgment
for direction of their seniority this I.A. was dismissed on
13.08.2013 and while doing so the Court observed that
implementation of orders dated 23.11.2012 was deliberately
obstructed by BSES Officers.
(e) On 13.08.2013 a Government Committee, in which BSES Officer
was special invitee, prepared draft Rules.
(f) On 26.07.2013 Government Order was passed creating
promotional post in the merged cadre w.e.f. 01.01.1977 to
31.12.1995 and as a result thereof 877 promotional posts were
created in merged BES.
On the same day, compliance was filed by the State in this Court
wherein it had been stated as to how the court orders were
complied with. It was followed by another compliance report
dated 26.08.2013 in the present contempt petitions.
(g) When these contempt petitions came up on 12.12.2013, the
Ld. ASG appearing for the State Government stated that seniority
list on 17.08.2007 shall be given effect to. This is a very
crucial statement. On this statement, direction was issued by
the Court to grant consequential benefits of merger within eight
weeks. Another specific direction was given to restore the
position consequent to orders dated 28.06.2007 posting BSES
teachers as Principals.
It resulted in partial obedience in the form of orders dated
08.01.2014 by which 100 BSES teachers were posted as Principals.
(h) On 26.01.2014, Resolution was passed creating posts of
Senior Professors, Senior Lecturers’ and Vice-Principals in the
Government schools and upgrading the post of Principal to the
highest level. Reason for this given in the Resolution is that
it became necessary as no new post for BSES teachers were
available after mereger.
(i) On 10.02.2014 orders were passed posting about 257
teachers. With this all serving BSES teachers were given
postings.
(j) By a different order of the same date time bound promotion
was granted to erstwhile BSES teachers.
(k) While all this was happening, on 12.02.2014, the State
Government promulgated Bihar Education Rules, 2014. This act,
according to the Petitioner shows inveterate behaviour of the
respondents who have attempted undo the real effect of merger.
These Rules create three sub cadres within BES. Under these
Rules BSES teachers are put in teaching sub cadre, where
Principal would be highest promotional post. In contrast BES
Officers are put in administration sub cadre, who would continue
to be controlling the schools. These Rules also provide that
each sub-cadre will have its own separate seniority list.
Further, teaching cadre of BSES is treated as “dying cadre”.
10. A glimpse of the aforesaid steps taken after the filing of the
CCP shows that some efforts are being made to comply with the
directions of this Court that too after the filing of this CCP.
However, the grievance of the Petitioner is that even when the orders
of creation and upgradation of post etc. are issued there are so many
discrepancies therein which would manifest lack of bona fides on the
part of the administration to comply with the directions in letter and
spirit. On the contrary in spite of merger, erstwhile BSES teachers
are given step motherly treatment on the one hand, and on the other
hand BES employees are still treated as the favourites of the
authorities, with the result the discrimination between the two
continues, even when with the merger of two cadres, they stood
amalgamated into one and there was no reason to identify them as BSES
and BES any longer. It is further argued that the provisions of Bihar
Education Rules, 2014 (the Rules, 2014) are deliberately made with the
aforesaid ragnant motive in mind and made in violation of directions in
the judgment of this Court. Various discrepancies in the orders issued
by the Government from time to time, as well as in the Rules, 2014 are
pointed out in the manner as below:
Discrepancies in the orders of posting
1. Posting orders have been issued with complete non application
of mind as even dead and retired teachers have been posted.
2. Seniority has been given a complete go by while issuing these
orders. Juniors have been posted as Principals and seniors posted
as Vice-Principals, Sr. Professor & Sr. Lecturers.
3. Posting the erstwhile BSES teachers in Training Colleges is
impermissible under 1973 Rules as well as the new 2014 Rules.
4. These notifications have been issued on 10.02.2013 posting
erstwhile BSES teachers as Vice-Principals, Sr. Professors, Sr.
Lecturers. However, the new Rules were notified on 12.02.2014
and therefore on the day these postings were made, the posts were
non existent.
Discrepancies in the creation & upgradation of posts
1. Posts of Sr. Professors & Sr. Lecturers are unheard of in
schools. Such posts have never existed in any school, let alone
govt. school and exist only in colleges.
2. Creation of these posts show malicious intent as it is an
attempt to prevent erstwhile BSES teachers from occupying higher
promotional posts in BES.
3. Para 7 of the Resolution dated 29.01.2014 says that these
posts would get finished once the incumbents retired. The
intention is therefore clear that these posts are not required
and are being used to only ‘park’ the erstwhile teachers till
they retire.
4. The BES officers had pleaded in IA 25-26 that their
seniority would be affected and they would lose the higher
posts. This IA was dismissed, despite that the respondents have
devised this creation of posts to protect the BES officers.
5. The purported reasoning behind creating these posts is that
adequate promotional posts were created for the period
01.01.1977 to 31.12.1995 in the merged BES cadre vide
notification dated 26.07.2013. Even the exercise qua post
01.01.1996 period has been completed vide notifications dated
10.11.2001, 10.12.2002 and 29.06.2004 initially and then vide
Resolution dated 15.06.2011 as need based posts promotional
posts, which are not to be created but merely identified, have
been identified for the BES.
6. Other posts/categories of posts were merged in the BES in
the past but this exercise of creating posts was never
undertaken. This is nothing but an attempt to overreach the
orders of this Court to protect the BES officers at any cost.
Discrepancies in the Bihar Education Rules 2014 and the Cabinet Memo
Approving New Rules.
1. This is the most brazen attempt to deny the petitioner the
fruits of its success in three rounds of litigation upto this
Hon’ble Court. AS a result of merger, the erstwhile BSES
teachers would have been entitled to the highest posts in BES, a
fact admitted specifically by the BES officers themselves. As a
result of these new Rules, they cannot go beyond the post of
Principal, which was the basic grade/entry level post of BES
till now.
2. Even though the BES officers rank much junior to them, these
BES officers would continue to be the Controlling Officers of
the schools in which the BSES teachers would be posted by virtue
of the nature of their posts.
3. Merely giving financial benefits to the erstwhile BSES
teachers is not enough and they could not be denied the higher
posts within BES.
4. The real intention to somehow protect the BES officers is
revealed from para 2 of cabinet memo dated 13.01.2014 which
speaks of “clearing the way for unobstructed promotion of BES
officers”.
5. A similar attempt to bifurcate cadres after the order of
merger in 2006 was shot down by the then Minister saying doing
so would amount to breaching court orders and against
organizational interest.
6. There is no direction by this Hon’ble Court to frame new
Rules and the respondents are completely misreading para 42 of
the judgment dated 23.11.2012. This Hon’ble Court had merely
considered and rejected the submission of BES officers opposing
merger on the ground of lack of new Rules.
7. Since 1973 Rules already exist, there is no occasion nor
need for new Rules.
8. These Rules take away the actual benefit of merger. The
very basis of the merger was to provide adequate promotional
avenues to the teachers but these Rules take that away.
9. The Ld. ASG appearing for the respondents had stated before
this Court on 12.12.2013 that the seniority list dated
17.08.2007 would be given effect to. These Rules completely
annul that seniority list as each sub cadre would have a
separate seniority list.
11. Mr. Patwalia, learned Senior Advocate who made detailed
submissions on the aforesaid aspects rapped up his arguments by
pointing out that Respondents continue to defy the orders of this Court
which would be clear from the following:
1. The erstwhile BSES teachers even now are getting far lower
salaries than what the BES officers, who rank much junior to
them in the combined gradation list, are being paid. Similar is
the case with regard to pension of retired BSES teachers. This
is hostile discrimination and blatant contempt.
2. Rather than getting increased, the pension of those BSES
teachers, who retired prior to 09.08.1999, would actually
decrease, a fact admitted by the Accountant general. This can
certainly not be a consequence of merger.
3. Despite the reprimand and caution in para 46 & 47 of the
judgment dated 23.11.2012, the state continues to defy the
orders of this Court.
4. The petitioner are being denied the benefits despite orders
of this Court because of malafides on the part of the (i)
present HRD Minister, who had defended the BES as Advocate
General before the High Court, (ii) one Rameshwar Singh, who was
proceeded for contempt by the High Court in this very matter but
is now the Finance Secretary, (iii) one Anjani Kumar Singh,
against whom contempt petition was filed for defying the interim
orders of this Hon’ble Court in this case but is now the
Principal Secretary to the Chief Minister. These three are
acting at the behest of the BES officers, who are hell bent to
not get the orders of this Hon’ble Court implemented.
5. The officers bearers of the petitioner Association are being
targeted. The General Secretary of the petitioner has not been
paid his GPF dues even though he retired six years ago.
6. As a result the erstwhile BSES teachers have not got either
the financial or promotional benefits of merger.”
12. Mr. L. Nageshwar Rao, learned ASG appeared on behalf of
Respondents. He countered the submissions of Mr. Patwalia by arguing
that there was substantial compliance of the directions contained in
the judgment dated 23.11.2012, and no case for proceedings against the
respondents for contempt was made out. He drew our attention to the
following steps which were taken by the State Government, which
according to him, amounted to due compliance:
(i) The direction of this Court was to restore the Notification
No. 994 dated 28.6.2007 within 4 weeks. Orders of postings were
issued as per the said notification/list. Upon scrutiny some
inadvertent mistakes were found, which have been rectified vide
office notification dated 10.02.2014.
(ii) The postings are as Principal of Schools and Lecturers of
Training Colleges which are the promotional posts. As regards
other allegation relating to their supervision/control, the
department vide notification No.436 dated 10.02.2014 has in
clear terms stated in paragraph no.4 of the notification that
the matter related to promotion/charge/transfer-
posting/retiremental benefit/service confirmation of merged
officer of Bihar education service Grade-II (merged officer of
subordinate education service teaching branch) shall be dealt
with under the directorate of administration of education
department.
(iii) The petitioners have been posted on promotional post and
previous consequential orders have been restored.
(iv) The petitioners have admitted that all the financial
benefits of merger have been granted and paid.
v) Mr. Rao further pointed out that admittedly merger of the Cadre
has taken place. Moreover this merger is w.e.f. 1977 and all
the benefits of merger including the time bound promotions or
the ACP have been granted accordingly. All the merged employees
who are in service have been granted posting on higher post and
pay-scale.
vi) He also submitted that the allegation regarding reduction in
pension or regarding ACP is only an apprehension. A categorical
statement was made at the Bar that there shall not be any
reductions in pensions and as per finance department decisions
the person retiring after 09.08.1990 shall also be granted 3rd
ACP.
13. According to Mr. Rao, the aforesaid steps taken by the
administration were sufficient to demonstrate that the judgment of this
Court was complied with. He submitted that under the garb of the
present Contempt Petitions, the Petitioners were now challenging the
rules framed in the year 2014 which was not permissible as validity of
the rules could not be gone into in contempt proceedings. Mr. Rao
justified the framing of these rules on the ground that it had become
necessary because of the merger of the two cadres and in fact 2014
Rules amounted to giving effect to merger that had been effected. If
the Petitioners had any grievance against any of the provisions of 2014
Rules, the remedy for the Petitioners was to file separate proceedings.
It was further submitted that the members of the Petitioner
Association belonged to Teaching Cadre and had worked only as teachers
throughout their service with no administrative experience. Therefore,
they could not take any posting on administrative side because of lack
of such an experience. Keeping in mind this position, 2014 Rules were
framed and postings had been given as per those rules. It was also
submitted that the members of the Petitioner Association were due to
retire in one or two years and at the fag end of their career they
could not be given administrative assignments. Moreover, the rank and
pay scale is same and therefore the Petitioners are not affected
adversely in any manner.
14. Mr. Rao also attempted to justify the provisions made in the
2014 Rules, which he submitted, was the prerogative of the employer.
His argument was that direction of this Court was only to merge the
cadre. However, what further benefits are to be given and the
entitlement of the officers in the merged cadre could not be gone into
in the Contempt Petitions. Moreover, it was for the Government to
decide as to what provisions are to be made for the career progressions
of the merged employees from two cadres. For that, Government had
complete freedom. To achieve this, 2014 Rules had been framed. He
thus, argued that there was no willful disobedience.
15. Mr. Rao referred to the following judgments:
J.S. Parihar v. Ganpat Duggar and others, [1996 (6) SCC 291]
“6. The question then is whether the Division Bench was right in
setting aside the direction issued by the learned Single Judge
to redraw the seniority list. It is contended by Mr S.K. Jain,
the learned counsel appearing for the appellant, that unless the
learned Judge goes into the correctness of the decision taken by
the Government in preparation of the seniority list in the light
of the law laid down by three Benches, the learned Judge cannot
come to a conclusion whether or not the respondent had wilfully
or deliberately disobeyed the orders of the Court as defined
under Section 2(b) of the Act. Therefore, the learned Single
Judge of the High Court necessarily has to go into the merits of
that question. We do not find that the contention is well
founded. It is seen that, admittedly, the respondents had
prepared the seniority list on 2-7-1991. Subsequently promotions
came to be made. The question is whether seniority list is open
to review in the contempt proceedings to find out whether it is
in conformity with the directions issued by the earlier Benches.
It is seen that once there is an order passed by the Government
on the basis of the directions issued by the court, there arises
a fresh cause of action to seek redressal in an appropriate
forum. The preparation of the seniority list may be wrong or may
be right or may or may not be in conformity with the directions.
But that would be a fresh cause of action for the aggrieved
party to avail of the opportunity of judicial review. But that
cannot be considered to be the wilful violation of the order.
After re-exercising the judicial review in contempt proceedings,
a fresh direction by the learned Single Judge cannot be given to
redraw the seniority list. In other words, the learned Judge was
exercising the jurisdiction to consider the matter on merits in
the contempt proceedings. It would not be permissible under
Section 12 of the Act. Therefore, the Division Bench has
exercised the power under Section 18 of the Rajasthan High Court
Ordinance being a judgment or order of the Single Judge; the
Division Bench corrected the mistake committed by the learned
Single Judge. Therefore, it may not be necessary for the State
to file an appeal in this Court against the judgment of the
learned Single Judge when the matter was already seized of the
Division Bench.”
Indian Airports Employees’ Union v. Ranjan Chatterjee and
Another, [(1999) 2 SCC 537]
“7. It is well settled that disobedience of orders of the court,
in order to amount to “civil contempt” under Section 2(b) of the
Contempt of Courts Act, 1971 must be “wilful” and proof of mere
disobedience is not sufficient (S.S. Roy v. State of Orissa).
Where there is no deliberate flouting of the orders of the court
but a mere misinterpretation of the executive instructions, it
would not be a case of civil contempt (Ashok Kumar Singh v.
State of Bihar).
8. In this contempt case, we do not propose to decide whether
these six sweepers do fall within the scope of the notification
dated 9-12-1976 or the judgment of this Court dated 11-4-1997.
That is a question to be decided in appropriate proceedings.
9. It is true that these six sweepers’ names are shown in the
annexure to WP No. 2362 of 1990 in the High Court. But the
question is whether there is wilful disobedience of the orders
of this Court. In the counter-affidavit of the respondents, it
is stated that there is no specific direction in the judgment of
this Court for absorption of these sweepers, if any, working in
the car-park area, and that the directions given in the judgment
were in relation to the sweepers working at the “International
Airport, National Airport Cargo Complex and Import Warehouse”.
It is stated that the cleaners employed by the licensee in
charge of maintenance of the car-park area do not, on a proper
interpretation of the order, come within the sweep of these
directions. It is contended that even assuming that they were
included in the category of sweepers working at the
“International Airport”, inasmuch as they were not employed for
the purpose of cleaning, dusting and watching the buildings, as
mentioned in the notification abolishing contract labour, they
were not covered by the judgment. It is also contended that the
case of such sweepers at the car-park area was not even referred
to the Advisory Board under Section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970 and it was highly doubtful
if they were covered by the notification.
10. On the other hand, learned Senior Counsel for the
petitioners contended that going by the map of the Airport, it
was clear that these sweepers at the car-park area were clearly
covered by the notification and the judgment. The fact that the
names of these six employees were shown in the annexures to the
writ petition was proof that they were covered by the judgment.
The licensee is in the position of a contractor.
11. In our view, these rival contentions involve an
interpretation of the order of this Court, the notification and
other relevant documents. We are not deciding in this contempt
case whether the interpretation put forward by the respondents
or the petitioners is correct. That question has to be decided
in appropriate proceedings. For the purpose of this contempt
case, it is sufficient to say that the non-absorption of these
six sweepers was bona fide and was based on an interpretation of
the above orders and the notification etc. and cannot be said to
amount to “wilful disobedience” of the orders of this Court.”
All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi and
others, [(2009) 5 SCC 417]
“78. We may now notice some judgments in which the courts have
considered the question relating to burden of proof in contempt
cases. In Bramblevale Ltd., Re Lord Denning observed: (All ER
pp. 1063 H-1064 B)
“A contempt of court is an offence of a criminal character. A
man may be sent to prison for it. It must be satisfactorily
proved. To use the time-honoured phrase, it must be proved
beyond reasonable doubt. It is not proved by showing that, when
the man was asked about it, he told lies. There must be some
further evidence to incriminate him. Once some evidence is
given, then his lies can be thrown into the scale against him.
But there must be some other evidence. …
… Where there are two equally consistent possibilities open to
the court, it is not right to hold that the offence is proved
beyond reasonable doubt.”
79. In Mrityunjoy Das v. Sayed Hasibur Rahaman the Court
referred to a number of judicial precedents including the
observations made by Lord Denning in Bramblevale Ltd., Re and
held: (SCC p. 746, para 14)
“14. … The common English phrase ‘he who asserts must prove’ has
its due application in the matter of proof of the allegations
said to be constituting the act of contempt. As regards the
‘standard of proof’, be it noted that a proceeding under the
extraordinary jurisdiction of the court in terms of the
provisions of the Contempt of Courts Act is quasi-criminal, and
as such, the standard of proof required is that of a criminal
proceeding and the breach shall have to be established beyond
reasonable doubt.”
80. In Chhotu Ram v. Urvashi Gulati a two-Judge Bench observed:
(SCC p. 532, para 2)
“2. As regards the burden and standard of proof, the common
legal phraseology ‘he who asserts must prove’ has its due
application in the matter of proof of the allegations said to be
constituting the act of contempt. As regards the ‘standard of
proof’, be it noted that a proceeding under the extraordinary
jurisdiction of the court in terms of the provisions of the
Contempt of Courts Act is quasi-criminal, and as such, the
standard of proof required is that of a criminal proceeding and
the breach shall have to be established beyond all reasonable
doubt.”
81. In Anil Ratan Sarkar v. Hirak Ghosh the Court referred to
Chhotu Ram v. Urvashi Gulati and observed: (SCC p. 29, para 13)
“13. … The Contempt of Courts Act, 1971 has been introduced in
the statute book for the purposes of securing a feeling of
confidence of the people in general and for due and proper
administration of justice in the country — undoubtedly a
powerful weapon in the hands of the law courts but that by
itself operates as a string of caution and unless thus otherwise
satisfied beyond doubt, it would neither be fair nor reasonable
for the law courts to exercise jurisdiction under the statute.””
16. In rejoinder Mr. Patwalia submitted that even a cursory glance
into the 2014 Rules and the provision made therein would amply bear out
that the whole intention of the Rule makers was to frustrate the effect
of the judgment. According to him that would amount to contempt and
from this angle the Court was competent to examine the matter even in
Contempt Petitions. He further submitted that the argument raised now
were precisely the grounds on which the Government had opposed the
merger but the Court had rejected those arguments. Therefore, under
the garb of implementation of that judgment, same very grounds could
not be raised to justify making such provisions in 2014 Rules. He
argued that the Report of the Committee which was relied upon by the
Respondents in fact rejected the entire issues of merger. He referred
to certain paras from the Report to support his submission. He also
made the grievance that initially, after the rendering of the judgment
of this Court, the Government had started implementing the same and had
even passed certain orders creating additional post to give effect to
the judgment. So much so even seniority was finalized. However,
thereafter the administration turned hostile and bent backward.
Therefore, the entire gamut was open to judicial review even in the
contempt proceedings. He further submitted that there was ample power
with this Court, particularly under Article 142 of the Constitution, to
do complete justice in the matter as held in Delhi Development
Authority v. Skipper Construction Co. (P) Ltd. and Another; (1996) 4
SCC 622.
“16. In Vinay Chandra Mishra, this Court dealt with the scope
and width of the power of this Court under Article 142. After
referring to the earlier decisions of the Court in extenso, it
is held that:
“… statutory provisions cannot override the constitutional
provisions and Article 142(1) being a constitutional power
it cannot be limited or conditioned by any statutory
provision”.
It is also held that:
“… the jurisdiction and powers of this Court under Article
142 which are supplementary in nature and are provided to do
complete justice in any matter ….”
In other words, the power under Article 142 is meant to
supplement the existing legal framework — to do complete justice
between the parties — and not to supplant it. It is conceived to
meet situations which cannot be effectively and appropriately
tackled by the existing provisions of law. As a matter of fact,
we think it advisable to leave this power undefined and
uncatalogued so that it remains elastic enough to be moulded to
suit the given situation. The very fact that this power is
conferred only upon this Court, and on no one else, is itself an
assurance that it will be used with due restraint and
circumspection, keeping in view the ultimate object of doing
complete justice between the parties. Now, coming to the facts
of the case before us, the question is not what can be done, but
what should be done? We are of the opinion that even while
acting under Article 142 of the Constitution of India, we ought
not to reopen the orders and decisions of the courts which have
become final. We do not think that for doing complete justice
between the parties before us, it is necessary to resort to this
extraordinary step. We are saying this in view of the contention
urged by S/Shri Salve and Dhavan that since the DDA has taken
over not only the plot but also the construction raised by
Skipper thereon (free from all encumbrances) in addition to the
sum of Rs 15.89 crores (said to have been paid by Skipper
towards the sale consideration of the said plot), the monies
required for paying the persons defrauded should come out of the
kitty of DDA. It must be remembered that the plot, the
construction raised thereon and the monies already paid towards
the sale consideration of the said plot have all vested
absolutely in the DDA free from all encumbrances under and by
virtue of the decision of the Delhi High Court dated 21-12-
1990/14-1-1991, which decision has indeed been affirmed by this
Court by dismissing the special leave petition preferred against
it. It may not be open to us to ignore the said decisions and
orders, including the orders of this Court, and/or to go behind
those decisions/orders and say that the amount received by DDA
towards sale consideration from Skipper or the value of the
construction raised by Skipper on the said plot should be made
available for paying out the persons defrauded by Skipper. We
must treat those decisions and orders as final and yet devise
ways and means of doing complete justice between the parties
before us.
The contemner should not be allowed to enjoy or retain the
fruits of his contempt.”
17. He also referred to the judgment in the case of Ashish Ranjan v.
Anupma Tandon and another; (2010) 14 SCC 274.
“20. In addition to the statutory provisions of the Contempt of
Courts Act, 1971 the powers under Articles 129 and 142 of the
Constitution are always available to this Court to see that the
order or undertaking which is violated by the contemnor is
effectuated and the court has all powers to enforce the consent
order passed by it and also issue further directions/orders to
do complete justice between the parties. Mutual settlement
reached between the parties cannot come in the way of the well-
established principles in respect of the custody of the child
and, therefore, a subsequent application for custody of a minor
cannot be thrown out at the threshold being not maintainable. It
is a recurring cause because the right of visitation given to
the applicant under the agreement is being consistently and
continuously flouted. Thus, the doctrine of res judicata is not
applicable in matters of child custody.”
18. He concluded his submissions by arguing that there were three
rounds of litigation earlier and the Petitioners were fighting for
justice since 1977 when decision was taken by the Government to merge
the two cadres. By framing 2014 Rules, the Government negated the
effect of merger thereby leaving the petitioners in lurch once again
and now the plea was taken to approach the Court again with fourth
round of litigation. He pointed out that during this period, most of
the members of the Petitioner Association had retired and very few who
were left were going to retire in near future. The whole intention of
the authorities was to tire out these petitioners and frustrate their
efforts which should not be countenanced.
19. At the outset, we may observe that we are conscious of the
limits within which we can undertake the scrutiny of the steps taken by
the respondents, in these Contempt proceedings. The Court is supposed
to adopt cautionary approach which would mean that if there is a
substantial compliance of the directions given in the judgment, this
Court is not supposed to go into the nitty gritty of the various
measures taken by the Respondents. It is also correct that only if
there is willful and contumacious disobedience of the orders, that the
Court would take cognizance. Even when there are two equally consistent
possibilities open to the Court, case of contempt is not made out. At
the same time, it is permissible for the Court to examine as to whether
the steps taken to purportedly comply with the directions of the
judgment are in furtherance of its compliance or they tend to defeat
the very purpose for which the directions were issued. We can certainly
go into the issue as to whether the Government took certain steps in
order to implement the directions of this Court and thereafter withdrew
those measures and whether it amounts to non-implementation. Limited
inquiry from the aforesaid perspective, into the provisions of 2014
Rules can also be undertaken to find out as to whether those provisions
amount to nullifying the effect of the very merger of BSES with BES. As
all these aspects have a direct co-relation with the issue as to
whether the directions are implemented or not. We are, thus, of the
opinion that this Court can indulge in this limited scrutiny as to
whether provisions made in 2014 Rules frustrate the effect of the
judgment and attempt is to achieve those results which were the
arguments raised by the respondents at the time of hearing of C.A. No.
8226-8227 of 2012 but rejected by this Court. To put it otherwise, we
can certainly examine as to whether 2014 Rules are made to implement
the judgment or these Rules in effect nullify the result of merger of
the two cadres.
20. As noted above, the resolution of merger earlier was passed on
7.7.2006 after rendition of the judgment dated 19.4.2006 by this Court
in the second round of litigation. This was preceded by a Note for the
Cabinet regarding merger. A perusal of this Cabinet Note shows that the
total history about the various proceedings culminating into judgment
dated 19.4.2006 is given. We have to keep in mind that original
Resolution for merger is Resolution No. 3512 dated 11.4.1977 which is
directed to be implemented. In the Cabinet Note dated 3.7.2006 it is
noted as under:-
“In the year 1977, the number of total created/ sanctioned post
of the male and female teachers was 2465, against which total
working strength were 1336, which decreased to 880 by the year
2006. Out of this if 301 units belonging to Jharkhand is
deducted, it comes to 579 only.
14. It is to be noted that in view of the provisions contained in
resolution No. 3521 dated 11.4.1977 several departments have
merged the lower scales with the higher ones. But the incumbents
of this cadre of the Education Deptt. have been denied their
promotions after 1977 which was otherwise due. Where as the
incumbents of Inspecting Branch of this cadre are reported to
have been promoted upto 2001.”
21. Thereafter, the proposal for creation of more posts is contained
in Para 15 which reads as under:
“15. Therefore, consequent upon complying the orders of the
Hon'ble Courts it is proposed to upgrade 2465 created/
sanctioned posts of teachers of subordinate education service
male and female cadre to Bihar Education Service Class-2 w.e.f.
1.1.1977.”
22. Resolution to this effect was passed on 7.7.2006. Thereafter,
combined gradation list of the merged cadre of BES dated 17.8.2007 was
issued. In this consolidated seniority list of officers of combined BES
Service, the employees of both the merged cadre is shown as per their
seniority. This was the precise manner in which the authorities had
understood the scheme of merger and acted earlier pursuant to the
judgment dated 19.4.2006. Directions contained in the judgment dated
23.11.2012 in C.A. Nos. 8226-8227 of 2012 are reiteration of earlier
judgment dated 19.4.2006. In fact, it is specifically held that
Resolution dated 7.7.2006 is valid and later Resolution dated 17.1.2008
annulling the earlier Resolution dated 7.7.2006 has been quashed. It
thus becomes obvious that the respondents were to revive the earlier
order/ Resolution of merger as well as combined gradation list issued
earlier. These remedial steps were necessitated to carry out the
direction of the judgment. Let us see whether such steps are taken now
or 2014 Rules are in the teeth of the aforesaid directions.
23. We find that Cabinet proposal dated 1.3.2013 regarding merger
was prepared on 1.3.2013 which referred to the earlier Resolution No.
1209 dated 7.7.2006, in the following manner:
“At the time of issuance of Resolution No. 1209 dated 7.7.2006
the estimated amount of expenditure was 64 crore. Presently this
amount is Rs. 104 crores.
(I) In compliance of the order of the Supreme Court dated
23.11.2012, it is proposed that the Resolution No. 1209
dated 7.7.2006 be revived and Notification No. 1855 dated
19.11.2007 be annulled.
(ii) Consequential benefits are proposed to be given to
the cadre of teachers of Bihar Subordinate Education Service
(Teaching Branch) Male and Female after merger.
Approval of Finance Departments has been obtained.”
24. Significantly, Resolution dated 2.4.2013 passed by the
Government revived earlier Resolution No. 1209 dated 7.7.2006 and
withdraws Notification No. 1855 dated 18.11.2007. So far so good. The
only thing that remained was to revive the combined seniority/
gradation list also which was issued on 17.8.2007 and give further
benefits of promotion, postings, ACP etc. based thereupon.
25. We find that first order dated 24.4.2013 was issued for grant of
ACP. While giving this benefit, seed of mischief is sown as is clear
from the following portion therein:
“For implementation of the order of the Supreme Court dated
23.11.2012, the grant of consequential benefits with effect from
1.1.1977 to the merged officers is being examined. In the course
of such examination, it has been found prima facie that before
issuing Resolution No. 1209 dated 7.7.2006, all points were not
fully considered.”
26. It is a matter of record that Resolution No. 1209/2006 was
passed by the Cabinet which means that it was the decision at the
highest level. It was not open to some officer sitting in the Education
Department to make such comments by exhibiting his superior knowledge
about the purported issued, that too in an order granting ACP to the
merged teachers as a consequence of merger. This was the starting
point to reopen the settled issue of merger of two cadres.
27. We would like to point out here that officers of erstwhile BES
i.e. BES Association had filed I.A. 25-26 of 2013 in this very decided
appeal i.e. C.A. No. 8226-8227 of 2012 seeking to rake up the same
issue about the gradation list. This was specifically contended that
merger takes effect from the date when posts are created. Apprehension
was expressed that affect the vested right of seniority of the members
of BES Association (BESA) who are already in the cadre, particularly
Respondent Nos. 2, 3 and 51 and some other members of BESA. It was
mentioned that some of the officers were holding the post of sub-
Director or RDDE who were appointed in December, 1983 and they may have
to face reversion. However, this I.A. was dismissed by the Court.
28. Notwithstanding the aforesaid, we find that 2014 Rules seek to
achieve the same result which was neither the intent of merger nor was
permitted by this Court at the instance of BESA in their application.
On the contrary, as noted below, by an ingenious method, effect of
merger is undone thereby.
29. These 2014 Rules created four sub-cadres within BES which are as
under:
“3. Constitution of service: The Bihar Education Service shall
be a state service. There shall be following four sub cadres in
this service:-
a) Bihar Education Service (Administration sub cadre)
b) Bihar Education Service (Teaching sub cadre), (Dying
Cadre)
c) Bihar Education Service (Research & Training sub
cadre) and
d) Bihar Education Service (Isolated sub cadre).”
Rule 4 states that none of the officers of one sub-cadre will be
transferred and posted in another sub cadre.
30. It follows from the above that the teaching sub cadre, to which
category members of the petitioner association belong to, is not only
isolated again but even treated as “dying cadre”. In order to ensure
that members of BESA continue to enjoy their promotions which were
given earlier and those are not disturbed, it is further provided that
persons belonging to teaching cadre namely the petitioners would not be
transferred and posted in administrative sub cadre. What BESA attempted
to achieve by means of C.A. Nos. 25-26/2013 and was declined by this
Court, is now accomplished with this methodology.
31. To add insult to the injury caused to the petitioner, Rule 27 of
the Rules gives option to the members of other sub cadre for inclusion
in a different cadre fulfilling the prescribed qualifications, but no
such option is given to the teaching cadre. This Rule 27 reads as
under:
“27. The officers appointed/ promoted and working on the above
posts of this sub cadre and having the prescribed qualification
of these posts shall give the option for inclusion in this sub
cadre. In case of having no qualification or not giving option
for inclusion in this sub cadre or in case of working on
deputation basis, they shall be reverted back to their own
cadre, if they are appointed on these posts, they shall remain
on their posts but they shall not get the benefit of regular
promotion in this sub cadre.”
32. By placing the erstwhile BSES teachers in teaching sub cadre,
are allowed to go upto the position of Principal which is the highest
promotional post in their sub cadre. On the other hand BES Officers who
are put in administrative sub cadre would continue to control the
schools. Moreover, each sub cadre is to have its separate seniority
list. It means the combined gradation list is given a go bye and even
by bringing BSES in BES, segregation between the two cadres is achieved
with these provisions. To our mind the aforesaid provisions of 2014
Rules negate the very effect of merger which was envisaged way back in
the year 1977. In spite of succeeding in three rounds of litigation,
the petitioners are not only treated as a distinct and separate class
with the creation of the aforesaid sub cadre, the benefit which could
accrue to them in a combined seniority list, as a result of merger,
have been snatched away from them. What was given to these petitioners
by the respondents in compliance of the judgment earlier, has now been
taken away with the promulgation of 2014 Rules.
33. Lest we may be misunderstood, we make it clear that it is the
prerogative of the Government to frame service rules in one or the
other manner. In case provisions contained in those Rules offend the
rights of any of the employees, they have an independent right to
challenge the same which can be judicially scrutinized by the Courts,
applying the settled principles of judicial review. However, if such an
exercise is undertaken on the premise that it is done to comply with
the directions contained in the judgment and the Court finds that, ex
facie, it is not so and on the contrary offends the directions in the
judgment, such a move cannot be countenanced.
34. It is also crystal clear and borne from the record that the
whole exercise was done to go out of way to help BES Officers. In fact,
Mr. Rao even argued on these lines by pointing out that the promotions
in BES cadres were made in two stages i.e. upto 31.12.1995 in one stage
and from 1.1.1996 till now in the second stage. From 1.1.1996 no
promotion was given to BES because it was need based and since the
posts were to be identified, only the additional charge was given to
them. What is lost sight of, in this entire arguments, is that, the
merger is to take effect from 1977 and even Resolution to that effect
is passed by the Cabinet. Further once that is done and the combined
gradation list issued in the year 2007 was to be necessarily revived,
further steps were to be taken from that stage. This Court is not
suggesting that those of the petitioners who become senior to their
counterparts in BES, should be given automatic promotion to second or
third stages which was the apprehension expressed. These officers, as a
result of merger and combined gradation list, would take their rightful
place and thereafter their career progression would be permissible as
per the Rules. For this purpose it was open to the Government to frame
the Rules and make provisions laying down eligibility conditions.
However, by well crafted technique of creating sub cadres and treating
teaching category as dying sub cadre, almost the same result, which was
the position before the merger, is achieved. It is obvious that such
provisions in 2014 Rules are made with the sole intention to frustrate
the effect of the judgment. We have no hesitation to say that this
would amount to contempt of the Court.
35. Having held so, let us consider as to what steps are required
for proper implementation of the judgment. Since the statement is made
by Mr. Rao, which is contained in Government written response as well,
that the petitioner would be given all due benefits of ACP and their
pension will also be not reduced, we take to that statement on record.
What remains is the restoration of combined gradation list and posting
of the officers of the petitioner's association and their promotions on
that basis. Having regard to the concession made by Mr. Patwalia in the
form of solution suggested by him, it is not necessary for us to give
directions to the administration to make all consequential amendments
in the 2014 Rules. Mr. Patwalia, submitted that if Rule 27 is amended
to give option to the teachers as well, the petitioners would be
satisfied with the same. We are of the opinion that it is a very fair
suggestion to solve the problem.
36. We thus, dispose of these Contempt Petitions with the following
directions:
(i) The combined gradation list issued on 17.8.2007 is revived
and is to be acted upon and implemented by the Respondents/
Authorities, or
Suitable amendment in the alternative be made in Rule 27 of 2014
Rules giving option to the teachers also, as permitted to other
sub cadres.
(ii) It would be open to the respondents not to demote those
BES Officers who are holding administrative assignment on the
higher posts. However, that would not be at the cost of those
petitioners belonging to teaching sub cadre who, as a result of
combined seniority list, have become senior to BES Officers. We
leave it to the Government to find whatever solution they have
to deal with this issue.
(iii) Consequential benefits which may accrue to the petitioners
shall be accorded to them.
(iv) The entire exercise be done and accomplished within a
period of 3 months.
(v) On failure on the part of the respondents/ administration
to take the aforesaid steps, it would be open to the petitioners
to move an I.A. in these very Contempt Petitions seeking its
revival with prayer to proceed further against the respondents
in accordance with law.
vi) The petitioner shall also be entitled to the costs of these
proceedings, which we fix at Rs. 50,000/-.
……………………....……J.
[Surinder Singh Nijjar]
...………………………….J.
[A.K. Sikri]
New Delhi
May 07,2014
The conclusive portion of the detailed judgment dated 23.11.2012
reflects raison d’etre for arriving at such a conclusion and the
precise nature thereof. We, therefore, reproduce the same hereunder
for the sake of further discussion:
“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 07.07.2006
after the order of this Court dated 19.04.2006. 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 which is enshrined in the principle of res-judicata or
principles analogous thereto, does not permit any such re-
examination, and the learned Judge clearly failed to recognize
the same.
45. For the reasons stated above, these appeals (arising out of
SLP Nos.26675-76 of 2010) are allowed. The judgment and order
passed by the Division Bench of Patna High Court in LPA
No.4182009 and other LPAs dated 21.05.2010, and that of the
learned Single Judge dated 31.10.2007 in CWJC No.100912006 are
set-aside and the said Writ Petition is hereby dismissed.
Consequently the notification dated 19.11.2007 issued pursuant
to the decision of the Single Judge will also stand quashed and
set-aside. The State Govt. Resolution dated 07.07.2006 is
upheld. The state shall proceed to act accordingly. I.A.
Nos.19-202011 are dismissed. As stated by Mr. Patwalia, learned
senior counsel for the appellants, the appellants no longer
press for the action for contempt arising out of CWJC
No.86792002. Contempt Petiton Nos. 386-387/2011, will also
accordingly stand disposed of, as not pressed.
46. The attitude of the State Govt. in the matter has caused
unnecessary anxiety to a large number of teachers. The State
Govt. must realize that in a country where there is no much
illiteracy and where there are a large number of first
generation students, the role of the primary and secondary
teachers is very important. They have to be treated honourably
and given appropriate pay and chances of promotion. It is
certainly not expected of the State Govt. to drag them to the
Court in litigation for years together.
47. Though the appeals stand disposed of as above, we do record
our strong displeasure for the manner in which the State of
Bihar kept on changing its stand from time to time. This is not
expected from the State Govt. The manner in which the learned
Single Judge proceeded with the Writ Petition No.1009/2006 to
reopen the entire controversy, and also the Division Bench in
LPA No.418/2003 in approving that approach is also far from
satisfactory. If the orders passed by this Court were not clear
to the State Govt. or any party, it could have certainly
approached this Court for the clarification thereof. But it
could not have setup a contrary plea in a collateral proceeding.
We do not expect such an approach from the State Govt. and
least from the High Court. Having stated this, although we have
expressed out displeasure about the approach of the State
Government, we refrain from passing any order as to costs.”=
We thus, dispose of these Contempt Petitions with the following
directions:
(i) The combined gradation list issued on 17.8.2007 is revived
and is to be acted upon and implemented by the Respondents/
Authorities, or
Suitable amendment in the alternative be made in Rule 27 of 2014
Rules giving option to the teachers also, as permitted to other
sub cadres.
(ii) It would be open to the respondents not to demote those
BES Officers who are holding administrative assignment on the
higher posts. However, that would not be at the cost of those
petitioners belonging to teaching sub cadre who, as a result of
combined seniority list, have become senior to BES Officers. We
leave it to the Government to find whatever solution they have
to deal with this issue.
(iii) Consequential benefits which may accrue to the petitioners
shall be accorded to them.
(iv) The entire exercise be done and accomplished within a
period of 3 months.
(v) On failure on the part of the respondents/ administration
to take the aforesaid steps, it would be open to the petitioners
to move an I.A. in these very Contempt Petitions seeking its
revival with prayer to proceed further against the respondents
in accordance with law.
vi) The petitioner shall also be entitled to the costs of these
proceedings, which we fix at Rs. 50,000/-.
2014 ( May. Part ) http://judis.nic.in/supremecourt/filename=41520
SURINDER SINGH NIJJAR, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION (CIVIL) NO. 88-89 OF 2013
IN
CIVIL APPEAL No. 8226-8227 of 2012
Bihar State Govt. Sec. Scl. Teachers Assn. ….Petitioner(s)
Versus
Ashok Kumar Sinha & Ors. ….Respondent(s)
J U D G M E N T
A.K. SIKRI, J.
1. These contempt proceedings arise out of the judgment and order dated
23.11.2012 passed by this Court in CA Nos. 8226-8227 of 2012. Before
we take note of the exact nature of directions given in that judgment
which according to the petitioners have been flouted contumaciously and
deliberately, we would like to take note of the history of litigation
culminating in passing of the said judgment.
2. The petitioner is an Association representing the teachers of the Bihar
Subordinate Education Service (hereinafter referred to as BSES for
brevity). They had filed a writ petition in the Patna High Court
claiming merger of their cadre with the Bihar Education Service
(hereinafter referred to BES for brevity). The writ petition was
allowed and the LPA and the SLP filed against the same were dismissed.
Since the benefits of merger of cadre were still not being granted,
another writ petition was filed, which too was allowed and affirmed in
LPA. Although leave was granted in the SLP filed by the State of
Bihar, ultimately the Civil Appeal was dismissed by the judgment dated
19.04.2006 resulting in the outcome in favour of the petitioner.
3. In compliance of the said judgment of this Court, a Resolution merging
the cadre of BSES with BES was issued on 07.07.2006 and the BSES
teachers were granted benefits of the merger, like enhancement of
payscale, promotion etc. At this stage, a writ petition was filed by
BES Association (BESA) challenging the merger. A single judge of the
High Court allowed it vide judgment dated 31.10.2007, which was
affirmed by a Division Bench on 21.05.2010. This judgment was
challenged before this Court by filing SLP.
4. Immediately after the judgment of the learned single judge, the State
Government withdrew the Resolution of merger dated 07.07.2006 by a
notification dated 19.11.2007 expressly mentioning therein that the
same was being issued in light of the High court judgment dated
31.10.2007 and thereby all benefits of merger of cadre were withdrawn.
Several consequential benefits had been granted to the teachers
pursuant to the merger by issuing various Resolutions. These benefits
were also withdrawn and in fact a Resolution was passed by the state
government on 17.01.2008 directing that the teachers would get pay and
other benefits, as they were getting prior to the merger, thereby
nullifying the effect of earlier Resolution of merger dated 7.7.2006.
5. The Special Leave Petition was granted and appeal was ultimately heard
finally. Eventually this appeal was allowed by a detailed judgment
dated 23.11.2012, thereby setting aside the judgment of the High Court.
This Court also quashed the notification of the State Government dated
19.11.2007, by which the benefits of merger granted to the teachers had
been withdrawn. As a corollary State Government’s Resolution dated
07.07.2006 was upheld and restored by which the cadre of the BSES
teachers, Teaching Branch had been merged with that of BES and the
State Government was directed to act accordingly.
6. The conclusive portion of the detailed judgment dated 23.11.2012
reflects raison d’etre for arriving at such a conclusion and the
precise nature thereof. We, therefore, reproduce the same hereunder
for the sake of further discussion:
“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 07.07.2006
after the order of this Court dated 19.04.2006. 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 which is enshrined in the principle of res-judicata or
principles analogous thereto, does not permit any such re-
examination, and the learned Judge clearly failed to recognize
the same.
45. For the reasons stated above, these appeals (arising out of
SLP Nos.26675-76 of 2010) are allowed. The judgment and order
passed by the Division Bench of Patna High Court in LPA
No.4182009 and other LPAs dated 21.05.2010, and that of the
learned Single Judge dated 31.10.2007 in CWJC No.100912006 are
set-aside and the said Writ Petition is hereby dismissed.
Consequently the notification dated 19.11.2007 issued pursuant
to the decision of the Single Judge will also stand quashed and
set-aside. The State Govt. Resolution dated 07.07.2006 is
upheld. The state shall proceed to act accordingly. I.A.
Nos.19-202011 are dismissed. As stated by Mr. Patwalia, learned
senior counsel for the appellants, the appellants no longer
press for the action for contempt arising out of CWJC
No.86792002. Contempt Petiton Nos. 386-387/2011, will also
accordingly stand disposed of, as not pressed.
46. The attitude of the State Govt. in the matter has caused
unnecessary anxiety to a large number of teachers. The State
Govt. must realize that in a country where there is no much
illiteracy and where there are a large number of first
generation students, the role of the primary and secondary
teachers is very important. They have to be treated honourably
and given appropriate pay and chances of promotion. It is
certainly not expected of the State Govt. to drag them to the
Court in litigation for years together.
47. Though the appeals stand disposed of as above, we do record
our strong displeasure for the manner in which the State of
Bihar kept on changing its stand from time to time. This is not
expected from the State Govt. The manner in which the learned
Single Judge proceeded with the Writ Petition No.1009/2006 to
reopen the entire controversy, and also the Division Bench in
LPA No.418/2003 in approving that approach is also far from
satisfactory. If the orders passed by this Court were not clear
to the State Govt. or any party, it could have certainly
approached this Court for the clarification thereof. But it
could not have setup a contrary plea in a collateral proceeding.
We do not expect such an approach from the State Govt. and
least from the High Court. Having stated this, although we have
expressed out displeasure about the approach of the State
Government, we refrain from passing any order as to costs.”
7. It is clear from the above that the Court took the view that once
decision of merger was not only upheld by this Court in its earlier
judgment dated 19.04.2006, but thereafter it was even acted upon by the
State Government by passing Resolution dated 07.07.2006, there was no
reason for the High Court to reopen the matter in a Writ Petition at
the instance of BES Association. The Court, therefore, in categorical
terms upheld the Resolution dated 07.07.2006 effecting the merger of
two services namely BSES and BES. Since this merger was undone by the
State Government by passing another Resolution dated 19.11.2007, this
latter Resolution was quashed. The effect of these directions was to
restore status quo ante by reinforcing the position with the issuance
of Resolution merging the two cadres on 07.07.2006 and conferring all
benefits of merger on to the members of the petitioner's Association,
viz. teachers belonging to erstwhile BSES.
8. According to the Petitioner, after the aforesaid judgment was given,
several representations were made to the State Government, on a
virtually daily basis, to restore the earlier position consequent upon
the merger of the two cadres but it was of no avail. In these
representations, the Petitioners also called upon the State Government
to give the consequential benefits granted pursuant to merger
notification by restoring the same and stated that these benefits would
include upgradation of posts, fixation of higher pay, payment of
arrears, promotions etc. However, instead of implementing the
directions contained in the judgment, the Petitioner received letter
dated 24.01.2013 from Respondent No.4, namely, the Director (Admn.)-cum-
Additional Secretary, Department of Education, Government of Bihar)
stating therein that the proposal was sent for the approval of merger
and the Petitioner were asked to provide details of pay scales etc. of
the BSES teacher to expedite the matter. According to the Petitioner
referring the matter to the Cabinet to approve the merger itself was a
contemptuous act inasmuch as there was no question of fresh approval
from the Cabinet regarding merger. According to the Petitioner with the
upholding of the Resolution dated 7.07.2006, which was a Resolution of
merger, that Resolution stood revived and restored by the Court itself
and the Government was only required to grant the consequential
benefits to the BSES teachers by passing formal orders in this behalf.
Notwithstanding the same, in compliance with the request letter dated
24.01.2013, the Petitioner submitted the required details vide
communication dated 28.01.2003. However, even thereafter nothing
happened even when the matter was persued repeatedly and almost on
daily basis with the Government. It is at that stage that present
contempt petition was filed on 23.01.2013 alleging that the Respondents
herein had deliberately, willfully and intentionally failed to comply
with the directions contained in the judgment dated 23.11.2012 by
refusing to grant all admissible benefits of mergers to the
Petitioners.
9. Notice in this contempt petition was issued. Thereafter various orders
were passed from time to time taking note of the developments happening
at the government’s end which included approval for merger and grant of
certain benefits by the State Cabinet. It would be apt to take note of
steps taken by the State Government, in brief, hereunder:
(a) On 01.03.2013, the State Cabinet approved the proposal for
merger. This proposal which was approved was of the following
nature:
“6. At the time of issuance of Resolution No.1209 dated
07.07.2006 the estimated amount of expenditure was 64
Crore. Presently this amount is Rs.104 crores.
7. (i) In compliance of the order of the Hon’ble Supreme
Court dated 23.11.2012, it is proposed that the Resolution
No.1209 dated 07.07.2006 be revived and Notification
no.1855 dated 19.11.2007 be annulled.
(ii) Consequential Benefits are proposed to be given to
the cadre of teachers of Bihar Subordinate Education
Service (Teaching Branch) Male and Female after merger.
8. Approval of Finance Departments has been obtained.”
(b) After the approval of merger by the State Government,
Resolution dated 17.04.2013 was passed by the Education
Department, Government of Bihar. Though as per para 6, earlier
Notification dated 19.11.2007 was withdrawn and Resolution dated
07.07.2006 was revived, in para 7 while giving consequential
benefits it was mentioned that for the purpose of granting these
benefits upto date list from the Director, Secondary Education
was to be obtained and Bihar Education Service Department of
Examination Rules, 1973 and order of status quo given by the
Supreme Court on 04.07.2011 are to be scrutinized. It was
mentioned that separate orders would be issued only thereafter
in this regards.
As per the Petitioner, introduction of these conditions for
grant of consequential benefits was not only contrary to the
judgment of the Court but even contrary to the Cabinet approval
as no such conditions were prescribed in the approval granted by
the State Cabinet.
(c) Thereafter orders dated 24.04.2013 were passed reviving ACP
benefits which were earlier granted.
As per the Petitioner even while doing so, in Para 5 of the
said order it was mischievously mentioned that after the matter
for grant of consequential benefits w.e.f. 01.01.1997 was
examined, in course of such examination it has been found that
before issuing Resolution No.1209 dated 07.07.2006 all points
were not fully considered.
(d) On 20.07.2013 press release was issued by the Government
calling upon all the teachers of erstwhile BSES including heirs
of deceased teachers/retired teachers to submit service books,
appointment/promotion orders, testimonials of educational
qualifications within three days for the purpose of granting
them the benefits.
In the mean time BSES Association filed I.A. in disposed of C.A.
No. 8228-8229 of 2012 seeking modification of the said judgment
for direction of their seniority this I.A. was dismissed on
13.08.2013 and while doing so the Court observed that
implementation of orders dated 23.11.2012 was deliberately
obstructed by BSES Officers.
(e) On 13.08.2013 a Government Committee, in which BSES Officer
was special invitee, prepared draft Rules.
(f) On 26.07.2013 Government Order was passed creating
promotional post in the merged cadre w.e.f. 01.01.1977 to
31.12.1995 and as a result thereof 877 promotional posts were
created in merged BES.
On the same day, compliance was filed by the State in this Court
wherein it had been stated as to how the court orders were
complied with. It was followed by another compliance report
dated 26.08.2013 in the present contempt petitions.
(g) When these contempt petitions came up on 12.12.2013, the
Ld. ASG appearing for the State Government stated that seniority
list on 17.08.2007 shall be given effect to. This is a very
crucial statement. On this statement, direction was issued by
the Court to grant consequential benefits of merger within eight
weeks. Another specific direction was given to restore the
position consequent to orders dated 28.06.2007 posting BSES
teachers as Principals.
It resulted in partial obedience in the form of orders dated
08.01.2014 by which 100 BSES teachers were posted as Principals.
(h) On 26.01.2014, Resolution was passed creating posts of
Senior Professors, Senior Lecturers’ and Vice-Principals in the
Government schools and upgrading the post of Principal to the
highest level. Reason for this given in the Resolution is that
it became necessary as no new post for BSES teachers were
available after mereger.
(i) On 10.02.2014 orders were passed posting about 257
teachers. With this all serving BSES teachers were given
postings.
(j) By a different order of the same date time bound promotion
was granted to erstwhile BSES teachers.
(k) While all this was happening, on 12.02.2014, the State
Government promulgated Bihar Education Rules, 2014. This act,
according to the Petitioner shows inveterate behaviour of the
respondents who have attempted undo the real effect of merger.
These Rules create three sub cadres within BES. Under these
Rules BSES teachers are put in teaching sub cadre, where
Principal would be highest promotional post. In contrast BES
Officers are put in administration sub cadre, who would continue
to be controlling the schools. These Rules also provide that
each sub-cadre will have its own separate seniority list.
Further, teaching cadre of BSES is treated as “dying cadre”.
10. A glimpse of the aforesaid steps taken after the filing of the
CCP shows that some efforts are being made to comply with the
directions of this Court that too after the filing of this CCP.
However, the grievance of the Petitioner is that even when the orders
of creation and upgradation of post etc. are issued there are so many
discrepancies therein which would manifest lack of bona fides on the
part of the administration to comply with the directions in letter and
spirit. On the contrary in spite of merger, erstwhile BSES teachers
are given step motherly treatment on the one hand, and on the other
hand BES employees are still treated as the favourites of the
authorities, with the result the discrimination between the two
continues, even when with the merger of two cadres, they stood
amalgamated into one and there was no reason to identify them as BSES
and BES any longer. It is further argued that the provisions of Bihar
Education Rules, 2014 (the Rules, 2014) are deliberately made with the
aforesaid ragnant motive in mind and made in violation of directions in
the judgment of this Court. Various discrepancies in the orders issued
by the Government from time to time, as well as in the Rules, 2014 are
pointed out in the manner as below:
Discrepancies in the orders of posting
1. Posting orders have been issued with complete non application
of mind as even dead and retired teachers have been posted.
2. Seniority has been given a complete go by while issuing these
orders. Juniors have been posted as Principals and seniors posted
as Vice-Principals, Sr. Professor & Sr. Lecturers.
3. Posting the erstwhile BSES teachers in Training Colleges is
impermissible under 1973 Rules as well as the new 2014 Rules.
4. These notifications have been issued on 10.02.2013 posting
erstwhile BSES teachers as Vice-Principals, Sr. Professors, Sr.
Lecturers. However, the new Rules were notified on 12.02.2014
and therefore on the day these postings were made, the posts were
non existent.
Discrepancies in the creation & upgradation of posts
1. Posts of Sr. Professors & Sr. Lecturers are unheard of in
schools. Such posts have never existed in any school, let alone
govt. school and exist only in colleges.
2. Creation of these posts show malicious intent as it is an
attempt to prevent erstwhile BSES teachers from occupying higher
promotional posts in BES.
3. Para 7 of the Resolution dated 29.01.2014 says that these
posts would get finished once the incumbents retired. The
intention is therefore clear that these posts are not required
and are being used to only ‘park’ the erstwhile teachers till
they retire.
4. The BES officers had pleaded in IA 25-26 that their
seniority would be affected and they would lose the higher
posts. This IA was dismissed, despite that the respondents have
devised this creation of posts to protect the BES officers.
5. The purported reasoning behind creating these posts is that
adequate promotional posts were created for the period
01.01.1977 to 31.12.1995 in the merged BES cadre vide
notification dated 26.07.2013. Even the exercise qua post
01.01.1996 period has been completed vide notifications dated
10.11.2001, 10.12.2002 and 29.06.2004 initially and then vide
Resolution dated 15.06.2011 as need based posts promotional
posts, which are not to be created but merely identified, have
been identified for the BES.
6. Other posts/categories of posts were merged in the BES in
the past but this exercise of creating posts was never
undertaken. This is nothing but an attempt to overreach the
orders of this Court to protect the BES officers at any cost.
Discrepancies in the Bihar Education Rules 2014 and the Cabinet Memo
Approving New Rules.
1. This is the most brazen attempt to deny the petitioner the
fruits of its success in three rounds of litigation upto this
Hon’ble Court. AS a result of merger, the erstwhile BSES
teachers would have been entitled to the highest posts in BES, a
fact admitted specifically by the BES officers themselves. As a
result of these new Rules, they cannot go beyond the post of
Principal, which was the basic grade/entry level post of BES
till now.
2. Even though the BES officers rank much junior to them, these
BES officers would continue to be the Controlling Officers of
the schools in which the BSES teachers would be posted by virtue
of the nature of their posts.
3. Merely giving financial benefits to the erstwhile BSES
teachers is not enough and they could not be denied the higher
posts within BES.
4. The real intention to somehow protect the BES officers is
revealed from para 2 of cabinet memo dated 13.01.2014 which
speaks of “clearing the way for unobstructed promotion of BES
officers”.
5. A similar attempt to bifurcate cadres after the order of
merger in 2006 was shot down by the then Minister saying doing
so would amount to breaching court orders and against
organizational interest.
6. There is no direction by this Hon’ble Court to frame new
Rules and the respondents are completely misreading para 42 of
the judgment dated 23.11.2012. This Hon’ble Court had merely
considered and rejected the submission of BES officers opposing
merger on the ground of lack of new Rules.
7. Since 1973 Rules already exist, there is no occasion nor
need for new Rules.
8. These Rules take away the actual benefit of merger. The
very basis of the merger was to provide adequate promotional
avenues to the teachers but these Rules take that away.
9. The Ld. ASG appearing for the respondents had stated before
this Court on 12.12.2013 that the seniority list dated
17.08.2007 would be given effect to. These Rules completely
annul that seniority list as each sub cadre would have a
separate seniority list.
11. Mr. Patwalia, learned Senior Advocate who made detailed
submissions on the aforesaid aspects rapped up his arguments by
pointing out that Respondents continue to defy the orders of this Court
which would be clear from the following:
1. The erstwhile BSES teachers even now are getting far lower
salaries than what the BES officers, who rank much junior to
them in the combined gradation list, are being paid. Similar is
the case with regard to pension of retired BSES teachers. This
is hostile discrimination and blatant contempt.
2. Rather than getting increased, the pension of those BSES
teachers, who retired prior to 09.08.1999, would actually
decrease, a fact admitted by the Accountant general. This can
certainly not be a consequence of merger.
3. Despite the reprimand and caution in para 46 & 47 of the
judgment dated 23.11.2012, the state continues to defy the
orders of this Court.
4. The petitioner are being denied the benefits despite orders
of this Court because of malafides on the part of the (i)
present HRD Minister, who had defended the BES as Advocate
General before the High Court, (ii) one Rameshwar Singh, who was
proceeded for contempt by the High Court in this very matter but
is now the Finance Secretary, (iii) one Anjani Kumar Singh,
against whom contempt petition was filed for defying the interim
orders of this Hon’ble Court in this case but is now the
Principal Secretary to the Chief Minister. These three are
acting at the behest of the BES officers, who are hell bent to
not get the orders of this Hon’ble Court implemented.
5. The officers bearers of the petitioner Association are being
targeted. The General Secretary of the petitioner has not been
paid his GPF dues even though he retired six years ago.
6. As a result the erstwhile BSES teachers have not got either
the financial or promotional benefits of merger.”
12. Mr. L. Nageshwar Rao, learned ASG appeared on behalf of
Respondents. He countered the submissions of Mr. Patwalia by arguing
that there was substantial compliance of the directions contained in
the judgment dated 23.11.2012, and no case for proceedings against the
respondents for contempt was made out. He drew our attention to the
following steps which were taken by the State Government, which
according to him, amounted to due compliance:
(i) The direction of this Court was to restore the Notification
No. 994 dated 28.6.2007 within 4 weeks. Orders of postings were
issued as per the said notification/list. Upon scrutiny some
inadvertent mistakes were found, which have been rectified vide
office notification dated 10.02.2014.
(ii) The postings are as Principal of Schools and Lecturers of
Training Colleges which are the promotional posts. As regards
other allegation relating to their supervision/control, the
department vide notification No.436 dated 10.02.2014 has in
clear terms stated in paragraph no.4 of the notification that
the matter related to promotion/charge/transfer-
posting/retiremental benefit/service confirmation of merged
officer of Bihar education service Grade-II (merged officer of
subordinate education service teaching branch) shall be dealt
with under the directorate of administration of education
department.
(iii) The petitioners have been posted on promotional post and
previous consequential orders have been restored.
(iv) The petitioners have admitted that all the financial
benefits of merger have been granted and paid.
v) Mr. Rao further pointed out that admittedly merger of the Cadre
has taken place. Moreover this merger is w.e.f. 1977 and all
the benefits of merger including the time bound promotions or
the ACP have been granted accordingly. All the merged employees
who are in service have been granted posting on higher post and
pay-scale.
vi) He also submitted that the allegation regarding reduction in
pension or regarding ACP is only an apprehension. A categorical
statement was made at the Bar that there shall not be any
reductions in pensions and as per finance department decisions
the person retiring after 09.08.1990 shall also be granted 3rd
ACP.
13. According to Mr. Rao, the aforesaid steps taken by the
administration were sufficient to demonstrate that the judgment of this
Court was complied with. He submitted that under the garb of the
present Contempt Petitions, the Petitioners were now challenging the
rules framed in the year 2014 which was not permissible as validity of
the rules could not be gone into in contempt proceedings. Mr. Rao
justified the framing of these rules on the ground that it had become
necessary because of the merger of the two cadres and in fact 2014
Rules amounted to giving effect to merger that had been effected. If
the Petitioners had any grievance against any of the provisions of 2014
Rules, the remedy for the Petitioners was to file separate proceedings.
It was further submitted that the members of the Petitioner
Association belonged to Teaching Cadre and had worked only as teachers
throughout their service with no administrative experience. Therefore,
they could not take any posting on administrative side because of lack
of such an experience. Keeping in mind this position, 2014 Rules were
framed and postings had been given as per those rules. It was also
submitted that the members of the Petitioner Association were due to
retire in one or two years and at the fag end of their career they
could not be given administrative assignments. Moreover, the rank and
pay scale is same and therefore the Petitioners are not affected
adversely in any manner.
14. Mr. Rao also attempted to justify the provisions made in the
2014 Rules, which he submitted, was the prerogative of the employer.
His argument was that direction of this Court was only to merge the
cadre. However, what further benefits are to be given and the
entitlement of the officers in the merged cadre could not be gone into
in the Contempt Petitions. Moreover, it was for the Government to
decide as to what provisions are to be made for the career progressions
of the merged employees from two cadres. For that, Government had
complete freedom. To achieve this, 2014 Rules had been framed. He
thus, argued that there was no willful disobedience.
15. Mr. Rao referred to the following judgments:
J.S. Parihar v. Ganpat Duggar and others, [1996 (6) SCC 291]
“6. The question then is whether the Division Bench was right in
setting aside the direction issued by the learned Single Judge
to redraw the seniority list. It is contended by Mr S.K. Jain,
the learned counsel appearing for the appellant, that unless the
learned Judge goes into the correctness of the decision taken by
the Government in preparation of the seniority list in the light
of the law laid down by three Benches, the learned Judge cannot
come to a conclusion whether or not the respondent had wilfully
or deliberately disobeyed the orders of the Court as defined
under Section 2(b) of the Act. Therefore, the learned Single
Judge of the High Court necessarily has to go into the merits of
that question. We do not find that the contention is well
founded. It is seen that, admittedly, the respondents had
prepared the seniority list on 2-7-1991. Subsequently promotions
came to be made. The question is whether seniority list is open
to review in the contempt proceedings to find out whether it is
in conformity with the directions issued by the earlier Benches.
It is seen that once there is an order passed by the Government
on the basis of the directions issued by the court, there arises
a fresh cause of action to seek redressal in an appropriate
forum. The preparation of the seniority list may be wrong or may
be right or may or may not be in conformity with the directions.
But that would be a fresh cause of action for the aggrieved
party to avail of the opportunity of judicial review. But that
cannot be considered to be the wilful violation of the order.
After re-exercising the judicial review in contempt proceedings,
a fresh direction by the learned Single Judge cannot be given to
redraw the seniority list. In other words, the learned Judge was
exercising the jurisdiction to consider the matter on merits in
the contempt proceedings. It would not be permissible under
Section 12 of the Act. Therefore, the Division Bench has
exercised the power under Section 18 of the Rajasthan High Court
Ordinance being a judgment or order of the Single Judge; the
Division Bench corrected the mistake committed by the learned
Single Judge. Therefore, it may not be necessary for the State
to file an appeal in this Court against the judgment of the
learned Single Judge when the matter was already seized of the
Division Bench.”
Indian Airports Employees’ Union v. Ranjan Chatterjee and
Another, [(1999) 2 SCC 537]
“7. It is well settled that disobedience of orders of the court,
in order to amount to “civil contempt” under Section 2(b) of the
Contempt of Courts Act, 1971 must be “wilful” and proof of mere
disobedience is not sufficient (S.S. Roy v. State of Orissa).
Where there is no deliberate flouting of the orders of the court
but a mere misinterpretation of the executive instructions, it
would not be a case of civil contempt (Ashok Kumar Singh v.
State of Bihar).
8. In this contempt case, we do not propose to decide whether
these six sweepers do fall within the scope of the notification
dated 9-12-1976 or the judgment of this Court dated 11-4-1997.
That is a question to be decided in appropriate proceedings.
9. It is true that these six sweepers’ names are shown in the
annexure to WP No. 2362 of 1990 in the High Court. But the
question is whether there is wilful disobedience of the orders
of this Court. In the counter-affidavit of the respondents, it
is stated that there is no specific direction in the judgment of
this Court for absorption of these sweepers, if any, working in
the car-park area, and that the directions given in the judgment
were in relation to the sweepers working at the “International
Airport, National Airport Cargo Complex and Import Warehouse”.
It is stated that the cleaners employed by the licensee in
charge of maintenance of the car-park area do not, on a proper
interpretation of the order, come within the sweep of these
directions. It is contended that even assuming that they were
included in the category of sweepers working at the
“International Airport”, inasmuch as they were not employed for
the purpose of cleaning, dusting and watching the buildings, as
mentioned in the notification abolishing contract labour, they
were not covered by the judgment. It is also contended that the
case of such sweepers at the car-park area was not even referred
to the Advisory Board under Section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970 and it was highly doubtful
if they were covered by the notification.
10. On the other hand, learned Senior Counsel for the
petitioners contended that going by the map of the Airport, it
was clear that these sweepers at the car-park area were clearly
covered by the notification and the judgment. The fact that the
names of these six employees were shown in the annexures to the
writ petition was proof that they were covered by the judgment.
The licensee is in the position of a contractor.
11. In our view, these rival contentions involve an
interpretation of the order of this Court, the notification and
other relevant documents. We are not deciding in this contempt
case whether the interpretation put forward by the respondents
or the petitioners is correct. That question has to be decided
in appropriate proceedings. For the purpose of this contempt
case, it is sufficient to say that the non-absorption of these
six sweepers was bona fide and was based on an interpretation of
the above orders and the notification etc. and cannot be said to
amount to “wilful disobedience” of the orders of this Court.”
All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi and
others, [(2009) 5 SCC 417]
“78. We may now notice some judgments in which the courts have
considered the question relating to burden of proof in contempt
cases. In Bramblevale Ltd., Re Lord Denning observed: (All ER
pp. 1063 H-1064 B)
“A contempt of court is an offence of a criminal character. A
man may be sent to prison for it. It must be satisfactorily
proved. To use the time-honoured phrase, it must be proved
beyond reasonable doubt. It is not proved by showing that, when
the man was asked about it, he told lies. There must be some
further evidence to incriminate him. Once some evidence is
given, then his lies can be thrown into the scale against him.
But there must be some other evidence. …
… Where there are two equally consistent possibilities open to
the court, it is not right to hold that the offence is proved
beyond reasonable doubt.”
79. In Mrityunjoy Das v. Sayed Hasibur Rahaman the Court
referred to a number of judicial precedents including the
observations made by Lord Denning in Bramblevale Ltd., Re and
held: (SCC p. 746, para 14)
“14. … The common English phrase ‘he who asserts must prove’ has
its due application in the matter of proof of the allegations
said to be constituting the act of contempt. As regards the
‘standard of proof’, be it noted that a proceeding under the
extraordinary jurisdiction of the court in terms of the
provisions of the Contempt of Courts Act is quasi-criminal, and
as such, the standard of proof required is that of a criminal
proceeding and the breach shall have to be established beyond
reasonable doubt.”
80. In Chhotu Ram v. Urvashi Gulati a two-Judge Bench observed:
(SCC p. 532, para 2)
“2. As regards the burden and standard of proof, the common
legal phraseology ‘he who asserts must prove’ has its due
application in the matter of proof of the allegations said to be
constituting the act of contempt. As regards the ‘standard of
proof’, be it noted that a proceeding under the extraordinary
jurisdiction of the court in terms of the provisions of the
Contempt of Courts Act is quasi-criminal, and as such, the
standard of proof required is that of a criminal proceeding and
the breach shall have to be established beyond all reasonable
doubt.”
81. In Anil Ratan Sarkar v. Hirak Ghosh the Court referred to
Chhotu Ram v. Urvashi Gulati and observed: (SCC p. 29, para 13)
“13. … The Contempt of Courts Act, 1971 has been introduced in
the statute book for the purposes of securing a feeling of
confidence of the people in general and for due and proper
administration of justice in the country — undoubtedly a
powerful weapon in the hands of the law courts but that by
itself operates as a string of caution and unless thus otherwise
satisfied beyond doubt, it would neither be fair nor reasonable
for the law courts to exercise jurisdiction under the statute.””
16. In rejoinder Mr. Patwalia submitted that even a cursory glance
into the 2014 Rules and the provision made therein would amply bear out
that the whole intention of the Rule makers was to frustrate the effect
of the judgment. According to him that would amount to contempt and
from this angle the Court was competent to examine the matter even in
Contempt Petitions. He further submitted that the argument raised now
were precisely the grounds on which the Government had opposed the
merger but the Court had rejected those arguments. Therefore, under
the garb of implementation of that judgment, same very grounds could
not be raised to justify making such provisions in 2014 Rules. He
argued that the Report of the Committee which was relied upon by the
Respondents in fact rejected the entire issues of merger. He referred
to certain paras from the Report to support his submission. He also
made the grievance that initially, after the rendering of the judgment
of this Court, the Government had started implementing the same and had
even passed certain orders creating additional post to give effect to
the judgment. So much so even seniority was finalized. However,
thereafter the administration turned hostile and bent backward.
Therefore, the entire gamut was open to judicial review even in the
contempt proceedings. He further submitted that there was ample power
with this Court, particularly under Article 142 of the Constitution, to
do complete justice in the matter as held in Delhi Development
Authority v. Skipper Construction Co. (P) Ltd. and Another; (1996) 4
SCC 622.
“16. In Vinay Chandra Mishra, this Court dealt with the scope
and width of the power of this Court under Article 142. After
referring to the earlier decisions of the Court in extenso, it
is held that:
“… statutory provisions cannot override the constitutional
provisions and Article 142(1) being a constitutional power
it cannot be limited or conditioned by any statutory
provision”.
It is also held that:
“… the jurisdiction and powers of this Court under Article
142 which are supplementary in nature and are provided to do
complete justice in any matter ….”
In other words, the power under Article 142 is meant to
supplement the existing legal framework — to do complete justice
between the parties — and not to supplant it. It is conceived to
meet situations which cannot be effectively and appropriately
tackled by the existing provisions of law. As a matter of fact,
we think it advisable to leave this power undefined and
uncatalogued so that it remains elastic enough to be moulded to
suit the given situation. The very fact that this power is
conferred only upon this Court, and on no one else, is itself an
assurance that it will be used with due restraint and
circumspection, keeping in view the ultimate object of doing
complete justice between the parties. Now, coming to the facts
of the case before us, the question is not what can be done, but
what should be done? We are of the opinion that even while
acting under Article 142 of the Constitution of India, we ought
not to reopen the orders and decisions of the courts which have
become final. We do not think that for doing complete justice
between the parties before us, it is necessary to resort to this
extraordinary step. We are saying this in view of the contention
urged by S/Shri Salve and Dhavan that since the DDA has taken
over not only the plot but also the construction raised by
Skipper thereon (free from all encumbrances) in addition to the
sum of Rs 15.89 crores (said to have been paid by Skipper
towards the sale consideration of the said plot), the monies
required for paying the persons defrauded should come out of the
kitty of DDA. It must be remembered that the plot, the
construction raised thereon and the monies already paid towards
the sale consideration of the said plot have all vested
absolutely in the DDA free from all encumbrances under and by
virtue of the decision of the Delhi High Court dated 21-12-
1990/14-1-1991, which decision has indeed been affirmed by this
Court by dismissing the special leave petition preferred against
it. It may not be open to us to ignore the said decisions and
orders, including the orders of this Court, and/or to go behind
those decisions/orders and say that the amount received by DDA
towards sale consideration from Skipper or the value of the
construction raised by Skipper on the said plot should be made
available for paying out the persons defrauded by Skipper. We
must treat those decisions and orders as final and yet devise
ways and means of doing complete justice between the parties
before us.
The contemner should not be allowed to enjoy or retain the
fruits of his contempt.”
17. He also referred to the judgment in the case of Ashish Ranjan v.
Anupma Tandon and another; (2010) 14 SCC 274.
“20. In addition to the statutory provisions of the Contempt of
Courts Act, 1971 the powers under Articles 129 and 142 of the
Constitution are always available to this Court to see that the
order or undertaking which is violated by the contemnor is
effectuated and the court has all powers to enforce the consent
order passed by it and also issue further directions/orders to
do complete justice between the parties. Mutual settlement
reached between the parties cannot come in the way of the well-
established principles in respect of the custody of the child
and, therefore, a subsequent application for custody of a minor
cannot be thrown out at the threshold being not maintainable. It
is a recurring cause because the right of visitation given to
the applicant under the agreement is being consistently and
continuously flouted. Thus, the doctrine of res judicata is not
applicable in matters of child custody.”
18. He concluded his submissions by arguing that there were three
rounds of litigation earlier and the Petitioners were fighting for
justice since 1977 when decision was taken by the Government to merge
the two cadres. By framing 2014 Rules, the Government negated the
effect of merger thereby leaving the petitioners in lurch once again
and now the plea was taken to approach the Court again with fourth
round of litigation. He pointed out that during this period, most of
the members of the Petitioner Association had retired and very few who
were left were going to retire in near future. The whole intention of
the authorities was to tire out these petitioners and frustrate their
efforts which should not be countenanced.
19. At the outset, we may observe that we are conscious of the
limits within which we can undertake the scrutiny of the steps taken by
the respondents, in these Contempt proceedings. The Court is supposed
to adopt cautionary approach which would mean that if there is a
substantial compliance of the directions given in the judgment, this
Court is not supposed to go into the nitty gritty of the various
measures taken by the Respondents. It is also correct that only if
there is willful and contumacious disobedience of the orders, that the
Court would take cognizance. Even when there are two equally consistent
possibilities open to the Court, case of contempt is not made out. At
the same time, it is permissible for the Court to examine as to whether
the steps taken to purportedly comply with the directions of the
judgment are in furtherance of its compliance or they tend to defeat
the very purpose for which the directions were issued. We can certainly
go into the issue as to whether the Government took certain steps in
order to implement the directions of this Court and thereafter withdrew
those measures and whether it amounts to non-implementation. Limited
inquiry from the aforesaid perspective, into the provisions of 2014
Rules can also be undertaken to find out as to whether those provisions
amount to nullifying the effect of the very merger of BSES with BES. As
all these aspects have a direct co-relation with the issue as to
whether the directions are implemented or not. We are, thus, of the
opinion that this Court can indulge in this limited scrutiny as to
whether provisions made in 2014 Rules frustrate the effect of the
judgment and attempt is to achieve those results which were the
arguments raised by the respondents at the time of hearing of C.A. No.
8226-8227 of 2012 but rejected by this Court. To put it otherwise, we
can certainly examine as to whether 2014 Rules are made to implement
the judgment or these Rules in effect nullify the result of merger of
the two cadres.
20. As noted above, the resolution of merger earlier was passed on
7.7.2006 after rendition of the judgment dated 19.4.2006 by this Court
in the second round of litigation. This was preceded by a Note for the
Cabinet regarding merger. A perusal of this Cabinet Note shows that the
total history about the various proceedings culminating into judgment
dated 19.4.2006 is given. We have to keep in mind that original
Resolution for merger is Resolution No. 3512 dated 11.4.1977 which is
directed to be implemented. In the Cabinet Note dated 3.7.2006 it is
noted as under:-
“In the year 1977, the number of total created/ sanctioned post
of the male and female teachers was 2465, against which total
working strength were 1336, which decreased to 880 by the year
2006. Out of this if 301 units belonging to Jharkhand is
deducted, it comes to 579 only.
14. It is to be noted that in view of the provisions contained in
resolution No. 3521 dated 11.4.1977 several departments have
merged the lower scales with the higher ones. But the incumbents
of this cadre of the Education Deptt. have been denied their
promotions after 1977 which was otherwise due. Where as the
incumbents of Inspecting Branch of this cadre are reported to
have been promoted upto 2001.”
21. Thereafter, the proposal for creation of more posts is contained
in Para 15 which reads as under:
“15. Therefore, consequent upon complying the orders of the
Hon'ble Courts it is proposed to upgrade 2465 created/
sanctioned posts of teachers of subordinate education service
male and female cadre to Bihar Education Service Class-2 w.e.f.
1.1.1977.”
22. Resolution to this effect was passed on 7.7.2006. Thereafter,
combined gradation list of the merged cadre of BES dated 17.8.2007 was
issued. In this consolidated seniority list of officers of combined BES
Service, the employees of both the merged cadre is shown as per their
seniority. This was the precise manner in which the authorities had
understood the scheme of merger and acted earlier pursuant to the
judgment dated 19.4.2006. Directions contained in the judgment dated
23.11.2012 in C.A. Nos. 8226-8227 of 2012 are reiteration of earlier
judgment dated 19.4.2006. In fact, it is specifically held that
Resolution dated 7.7.2006 is valid and later Resolution dated 17.1.2008
annulling the earlier Resolution dated 7.7.2006 has been quashed. It
thus becomes obvious that the respondents were to revive the earlier
order/ Resolution of merger as well as combined gradation list issued
earlier. These remedial steps were necessitated to carry out the
direction of the judgment. Let us see whether such steps are taken now
or 2014 Rules are in the teeth of the aforesaid directions.
23. We find that Cabinet proposal dated 1.3.2013 regarding merger
was prepared on 1.3.2013 which referred to the earlier Resolution No.
1209 dated 7.7.2006, in the following manner:
“At the time of issuance of Resolution No. 1209 dated 7.7.2006
the estimated amount of expenditure was 64 crore. Presently this
amount is Rs. 104 crores.
(I) In compliance of the order of the Supreme Court dated
23.11.2012, it is proposed that the Resolution No. 1209
dated 7.7.2006 be revived and Notification No. 1855 dated
19.11.2007 be annulled.
(ii) Consequential benefits are proposed to be given to
the cadre of teachers of Bihar Subordinate Education Service
(Teaching Branch) Male and Female after merger.
Approval of Finance Departments has been obtained.”
24. Significantly, Resolution dated 2.4.2013 passed by the
Government revived earlier Resolution No. 1209 dated 7.7.2006 and
withdraws Notification No. 1855 dated 18.11.2007. So far so good. The
only thing that remained was to revive the combined seniority/
gradation list also which was issued on 17.8.2007 and give further
benefits of promotion, postings, ACP etc. based thereupon.
25. We find that first order dated 24.4.2013 was issued for grant of
ACP. While giving this benefit, seed of mischief is sown as is clear
from the following portion therein:
“For implementation of the order of the Supreme Court dated
23.11.2012, the grant of consequential benefits with effect from
1.1.1977 to the merged officers is being examined. In the course
of such examination, it has been found prima facie that before
issuing Resolution No. 1209 dated 7.7.2006, all points were not
fully considered.”
26. It is a matter of record that Resolution No. 1209/2006 was
passed by the Cabinet which means that it was the decision at the
highest level. It was not open to some officer sitting in the Education
Department to make such comments by exhibiting his superior knowledge
about the purported issued, that too in an order granting ACP to the
merged teachers as a consequence of merger. This was the starting
point to reopen the settled issue of merger of two cadres.
27. We would like to point out here that officers of erstwhile BES
i.e. BES Association had filed I.A. 25-26 of 2013 in this very decided
appeal i.e. C.A. No. 8226-8227 of 2012 seeking to rake up the same
issue about the gradation list. This was specifically contended that
merger takes effect from the date when posts are created. Apprehension
was expressed that affect the vested right of seniority of the members
of BES Association (BESA) who are already in the cadre, particularly
Respondent Nos. 2, 3 and 51 and some other members of BESA. It was
mentioned that some of the officers were holding the post of sub-
Director or RDDE who were appointed in December, 1983 and they may have
to face reversion. However, this I.A. was dismissed by the Court.
28. Notwithstanding the aforesaid, we find that 2014 Rules seek to
achieve the same result which was neither the intent of merger nor was
permitted by this Court at the instance of BESA in their application.
On the contrary, as noted below, by an ingenious method, effect of
merger is undone thereby.
29. These 2014 Rules created four sub-cadres within BES which are as
under:
“3. Constitution of service: The Bihar Education Service shall
be a state service. There shall be following four sub cadres in
this service:-
a) Bihar Education Service (Administration sub cadre)
b) Bihar Education Service (Teaching sub cadre), (Dying
Cadre)
c) Bihar Education Service (Research & Training sub
cadre) and
d) Bihar Education Service (Isolated sub cadre).”
Rule 4 states that none of the officers of one sub-cadre will be
transferred and posted in another sub cadre.
30. It follows from the above that the teaching sub cadre, to which
category members of the petitioner association belong to, is not only
isolated again but even treated as “dying cadre”. In order to ensure
that members of BESA continue to enjoy their promotions which were
given earlier and those are not disturbed, it is further provided that
persons belonging to teaching cadre namely the petitioners would not be
transferred and posted in administrative sub cadre. What BESA attempted
to achieve by means of C.A. Nos. 25-26/2013 and was declined by this
Court, is now accomplished with this methodology.
31. To add insult to the injury caused to the petitioner, Rule 27 of
the Rules gives option to the members of other sub cadre for inclusion
in a different cadre fulfilling the prescribed qualifications, but no
such option is given to the teaching cadre. This Rule 27 reads as
under:
“27. The officers appointed/ promoted and working on the above
posts of this sub cadre and having the prescribed qualification
of these posts shall give the option for inclusion in this sub
cadre. In case of having no qualification or not giving option
for inclusion in this sub cadre or in case of working on
deputation basis, they shall be reverted back to their own
cadre, if they are appointed on these posts, they shall remain
on their posts but they shall not get the benefit of regular
promotion in this sub cadre.”
32. By placing the erstwhile BSES teachers in teaching sub cadre,
are allowed to go upto the position of Principal which is the highest
promotional post in their sub cadre. On the other hand BES Officers who
are put in administrative sub cadre would continue to control the
schools. Moreover, each sub cadre is to have its separate seniority
list. It means the combined gradation list is given a go bye and even
by bringing BSES in BES, segregation between the two cadres is achieved
with these provisions. To our mind the aforesaid provisions of 2014
Rules negate the very effect of merger which was envisaged way back in
the year 1977. In spite of succeeding in three rounds of litigation,
the petitioners are not only treated as a distinct and separate class
with the creation of the aforesaid sub cadre, the benefit which could
accrue to them in a combined seniority list, as a result of merger,
have been snatched away from them. What was given to these petitioners
by the respondents in compliance of the judgment earlier, has now been
taken away with the promulgation of 2014 Rules.
33. Lest we may be misunderstood, we make it clear that it is the
prerogative of the Government to frame service rules in one or the
other manner. In case provisions contained in those Rules offend the
rights of any of the employees, they have an independent right to
challenge the same which can be judicially scrutinized by the Courts,
applying the settled principles of judicial review. However, if such an
exercise is undertaken on the premise that it is done to comply with
the directions contained in the judgment and the Court finds that, ex
facie, it is not so and on the contrary offends the directions in the
judgment, such a move cannot be countenanced.
34. It is also crystal clear and borne from the record that the
whole exercise was done to go out of way to help BES Officers. In fact,
Mr. Rao even argued on these lines by pointing out that the promotions
in BES cadres were made in two stages i.e. upto 31.12.1995 in one stage
and from 1.1.1996 till now in the second stage. From 1.1.1996 no
promotion was given to BES because it was need based and since the
posts were to be identified, only the additional charge was given to
them. What is lost sight of, in this entire arguments, is that, the
merger is to take effect from 1977 and even Resolution to that effect
is passed by the Cabinet. Further once that is done and the combined
gradation list issued in the year 2007 was to be necessarily revived,
further steps were to be taken from that stage. This Court is not
suggesting that those of the petitioners who become senior to their
counterparts in BES, should be given automatic promotion to second or
third stages which was the apprehension expressed. These officers, as a
result of merger and combined gradation list, would take their rightful
place and thereafter their career progression would be permissible as
per the Rules. For this purpose it was open to the Government to frame
the Rules and make provisions laying down eligibility conditions.
However, by well crafted technique of creating sub cadres and treating
teaching category as dying sub cadre, almost the same result, which was
the position before the merger, is achieved. It is obvious that such
provisions in 2014 Rules are made with the sole intention to frustrate
the effect of the judgment. We have no hesitation to say that this
would amount to contempt of the Court.
35. Having held so, let us consider as to what steps are required
for proper implementation of the judgment. Since the statement is made
by Mr. Rao, which is contained in Government written response as well,
that the petitioner would be given all due benefits of ACP and their
pension will also be not reduced, we take to that statement on record.
What remains is the restoration of combined gradation list and posting
of the officers of the petitioner's association and their promotions on
that basis. Having regard to the concession made by Mr. Patwalia in the
form of solution suggested by him, it is not necessary for us to give
directions to the administration to make all consequential amendments
in the 2014 Rules. Mr. Patwalia, submitted that if Rule 27 is amended
to give option to the teachers as well, the petitioners would be
satisfied with the same. We are of the opinion that it is a very fair
suggestion to solve the problem.
36. We thus, dispose of these Contempt Petitions with the following
directions:
(i) The combined gradation list issued on 17.8.2007 is revived
and is to be acted upon and implemented by the Respondents/
Authorities, or
Suitable amendment in the alternative be made in Rule 27 of 2014
Rules giving option to the teachers also, as permitted to other
sub cadres.
(ii) It would be open to the respondents not to demote those
BES Officers who are holding administrative assignment on the
higher posts. However, that would not be at the cost of those
petitioners belonging to teaching sub cadre who, as a result of
combined seniority list, have become senior to BES Officers. We
leave it to the Government to find whatever solution they have
to deal with this issue.
(iii) Consequential benefits which may accrue to the petitioners
shall be accorded to them.
(iv) The entire exercise be done and accomplished within a
period of 3 months.
(v) On failure on the part of the respondents/ administration
to take the aforesaid steps, it would be open to the petitioners
to move an I.A. in these very Contempt Petitions seeking its
revival with prayer to proceed further against the respondents
in accordance with law.
vi) The petitioner shall also be entitled to the costs of these
proceedings, which we fix at Rs. 50,000/-.
……………………....……J.
[Surinder Singh Nijjar]
...………………………….J.
[A.K. Sikri]
New Delhi
May 07,2014
