Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
1
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4862 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO.20 OF 2018)
STATE OF BIHAR & ORS. …Appellants
VERSUS
THE BIHAR SECONDARY TEACHERS STRUGGLE
COMMITTEE, MUNGER & ORS. …Respondents
WITH
CIVIL APPEAL NO. 4872 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.708 OF 2018)
CIVIL APPEAL NO. 4867 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.238 OF 2018)
CIVIL APPEAL NO. 4866 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.242 OF 2018)
CIVIL APPEAL NO. 4864 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.169 OF 2018)
CIVIL APPEAL NO. 4865 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.162 OF 2018)
CIVIL APPEAL NO. 4869 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.254 OF 2018)
CIVIL APPEAL NO. 4863 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.164 OF 2018)
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
2
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
CIVIL APPEAL NO. 4868 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.251 OF 2018)
CIVIL APPEAL NO. 4870 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.240 OF 2018)
CIVIL APPEAL NO. 4871 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.572 OF 2018)
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. These appeals are directed against common judgment and order
dated 31.10.2017 passed by the High Court of Judicature at Patna in Civil
Writ Jurisdiction Case No.21199 of 2013 and all connected matters.
3. In 1981, all non-Government Secondary Schools were
nationalized and the management was taken over by State of Bihar.
Consequently, all teaching and non-teaching staff were given salaries and
emoluments at the Government scales. With the schemes like Sarva
Shiksha Abhiyan, introduction of Article 21A in the Constitution and
coming into force of the Right of Children to Free and Compulsion
Education Act, 2009 (‘RTE Act’, for short), the State was required to
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
induct large number of teachers in order to meet the required obligations.
These teachers employed at Panchayat, Nagar Panchayat and Municipal
levels were not given same salaries and emoluments like the teachers who
were paid at the Government scales. The petitions seeking same salaries
and emoluments on the principle of “equal pay for equal work” filed by
the latter category of teachers, were allowed by the High Court. The view
taken by the High Court is presently under challenge at the instance of the
State.
4. By the Bihar non-Government Secondary Schools (Taking over of
Management and Control) Act, 1981 (‘1981 Act’, for short), management
and control of non-Government Secondary Schools were taken over by
the State. In terms of Section 3, all non-Government Secondary Schools
other than Minority Secondary Schools based on religion or language and
Centrally sponsored, autonomous and proprietary schools were taken over
by the State Government w.e.f. 02.10.1980. Consequently, every Head
Master, Teacher and other employees of such school became employees of
the State Government, with Management and Control of all the
nationalized schools vesting in the Director of Education of State
Government (In charge of Secondary education). Section 10 dealt with
establishment of School Service Board which was entrusted with the
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
power of appointment of Teachers, Head Masters in nationalized schools
and the Board would make recommendations for appointment of teachers
and for appointment or promotion of Head Masters of nationalized
secondary schools. The District Secondary Education Fund was
constituted under Section 11 and the application of the fund under Section
12 would inter alia be for payment of salaries and allowances of the Head
Master, Teachers and other staff of the secondary schools.
5. Bihar Nationalized Secondary Schools (Service Conditions)
Rules, 1983 were framed by the State Government in exercise of powers
conferred under Sections 9 & 15 of the 1981 Act. Under these Rules the
service conditions were prescribed for Head Master, Teachers of superior
category, teachers of inferior category and teachers of junior category as
well as in respect of non-teaching employees such as clerks, peons etc.
These Rules prescribed minimum qualifications for each of those
categories. The Rules also dealt with subjects such as procedure for
appointment, permission, and disciplinary action. Rule 6 dealt with cadre
of teachers and was to the following effect:
“6. Cadre of teachers:-
1. There shall be Dist. Cadre of junior category teachers,
of whose controlling officer shall be Dist. Education
Officer.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
2. There shall be Commissionaire Cadre of the teachers
of inferior and superior category of whose controlling
officer shall be Regional Director.
3. There shall be State Cadre of Headmaster whose
controlling officer shall be Director.”
6. By the Constitution (73rd amendment) Act, 1992 Part IX
(containing Articles 243, 243A to 243-O) was inserted in the Constitution.
Article 243B mandates that in every State there shall be constituted
Panchayats at the village, intermediate and district levels in accordance
with Part IX of the Constitution Article 243G is to the following effect:-
“243G Powers, authority and responsibilities of
Panchayats. – Subject to the provisions of this
Constitution, the Legislature of a State may, by law,
endow the Panchayats with such powers and authority as
may be necessary to enable them to function as institutions
of self-government and such law may contain provisions
for the devolution of powers and responsibilities upon
Panchayats at the appropriate level, subject to such
conditions as may be specified therein, with respect to –
(a) the preparation of plans for economic development
and social justice;
(b) The implementation of schemes for economic
development and social justice as may be entrusted to
them including those in relation to the matters listed in the
Eleventh Schedule.”
One of the matters listed in the Eleventh Schedule under Serial
No.17 is “Education, including primary and secondary schools”.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
7. By the Constitution (74th Amendment Act, 1992) Part IXA
(containing Articles 243P to 243Z, 243ZA to 243ZG) was inserted in the
Constitution. In terms of Article 243Q there shall be constituted in every
State, a Nagar panchayat for a transitional area, a municipal council for a
small urban area and a municipal corporation for a larger urban area in
accordance with the provisions of said Part IXA of the Constitution.
Article 243W dealing with powers, authority and responsibilities of
Municipalities etc. is as under:
“243W. Powers, authority and responsibilities of
Municipalities, etc. – Subject to the provisions of this
Constitution, the Legislature of a State may, by law,
endow –
“(a) The Municipalities with such powers and authority as
may be necessary to enable them to function as institutions
of self-government and such law may contain provisions
for the devolution of powers and responsibilities upon
Municipalities, subject to such conditions as may be
specified therein, with respect to –
(i) the preparation of plans for economic development
and social justice;
(ii) the performance of functions and the implementation
of schemes as may be entrusted to them including those in
relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as
may be necessary to enable them to carry out the
responsibility conferred upon them including those in
relation to the matters listed in the Twelfth Schedule.”
One of the matters mentioned in the Twelfth Schedule at Serial
No.13 states, “Promotion of cultural, educational and aesthetic aspects”.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
8. By the Constitution (86th Amendment Act, 2002) which came into
effect on 01.04.2010, Article 21A dealing with right to education was
inserted in the Constitution. Said Article 21A reads as under:-
“21A. Right to education. – The State shall provide free
and compulsory education to all children of the age of six
to fourteen years in such manner as the State may, by law,
determine.”
9. By Bihar Act 25 of 2006, 1981 Act was amended. Section 2 of the
Amending Act was as under:
“Amendment of Section 10 of the Act, 1981 (Bihar Act 33,
1982) – The Words “The recommendation for the
appointment to Posts of teachers in nationalized Schools
shall be sent to the Director, Secondary Education
Department by the Bihar Staff Selection Commission used
in Section 10 as substituted by Bihar Act 14, 2004 are
hereby deleted.”
The role of the Director in matters concerning appointments to the
posts of teachers in nationalised schools was thus done away with.
10. In May 2006, two draft Notes for approval of the Cabinet were
prepared. The Notes dealt with issues like requirements to increase the
number of teachers to reach the national level of teacher to students’ ratio
and to meet the goals set by the provisions of Article 21A of the
Constitution. Some of the relevant portions of the Notes were:-
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
“As per the provisions of Article 21A of the Constitution
of India, imparting of free Education to the childrens’ of
age group of 6-14 has become their fundamental rights.
This is the responsibility of the State to provide quality
education keeping in mind the equality and social justice.
At present in Government schools ratio of teachers and
student is1:62. Whereas as per the national Educational
policy and in light of standard fixed at national level, for
the purposes of imparting quality education, this ratio
should be 1:40. There are 64:391 posts vacant for the
trained teachers and around 24 Lakhs childrens are not
even registered in the schools. Due to lack of teachers,
school and classes childrens in huge numbers are
compelled to leave the school even prior to completing
their education up to 8 years. This year there is scheme
for consolidated development of 15000 new primary
schools and around 24,000 existing schools. At present
education is being imparted to the childrens at “Shiksha
Kendras” with the help of instructors. It is thought in light
of equality and social justice that they be also provide
education in fully developed schools with the help of
teachers.”
“9. In new rules basic changes are being made in salary
of the trained teachers and in their appointment procedure.
They will be provided fixed salary of Rs.5000/- per month
and on the basis of their evaluation, in a situation of them
being successful, in each three years, an increment of
Rs.500/- per month shall be given. Appointment shall be
decentralized. At the Block levels, it shall be provided
under the panchayati Raj arrangements on the basis of
merit list.
In Gramin area they shall be called as “Panchayat
teachers” and in Urban area they will be called “Nagar
teachers”.
It is expected that in this new scheme of things and on
fixed salary/stipend generally locals will be appointed on
the post of teachers and amount which shall be saved
consequent to expenses of providing of present full salary,
could be available for the purposes of extension of
primary education and for the purposes of enhancement of
its quality.
10. New rule shall not have any effect in salary of the
teachers and in terms and condition of their appointments
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
made earlier. But their vacant posts shall be omitted and
same number of posts shall be created under the new
arrangements/Rules and appointment on it shall be made
under the new rules. Same arrangement/procedure shall
follow in the vacancies falling in future.
Under these provisions, Panchayat Raj institutions are
being provided with the power of appointment of new
teachers, payment of salary and other terms and conditions
of service as per the proposed new Rules of appointment.
Movable/Immovable Property of the schools, training of
teachers, construction of building of school, construction
of syllabus of study/study material, construction of book,
evaluation etc all the works shall be under the state
Government like in past.”
… … …
“5. Difficulties in previous appointment procedure:- In
the centralized examination test as adopted earlier has
following difficulties in selection and appointment of
teachers.
i. Previous experience shows that in
organizing and evaluating of such
examinations so many hurdles are faced
and in entire appointment process, it takes
a lot of time.
ii. If selection is done in a centralized way,
there is possibility of participation of
candidates from other states too and a
practical difficulty would come in,
verification of eligibility certificates etc.
iii. After centralized selection process, a
practical difficulty would be faced in
transfer and posting etc and candidates
would also suffer.
6. Proposed process of employment:- While considering
the above said facts/aspects, proposal is that procedure of
appointment of Secondary and higher Secondary teachers
is decentralized and in light of 73rd and 74th amendment of
the Constitution of India, its responsibility be given to the
Panchayati Raj Sansthan’s/bodies. Movable and
immovable property of school, Training of teachers,
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
construction of school building, syllabus/study materials,
construction of study materials, evaluation etc, shall be
under the control of state Government like in past.”
… … …
“8. Under the above said process, if payment is made at
the rate of Rs.6000/- per teacher (Six thousand only)
financial implication would be Rs.89,82,72,000/- (Eighty
nine crores eighty two lakhs seventy two thousand only)
which would be required to be incurred. If appointment is
made on all these posts under the present procedure, total
amount of Rs.160,83,56,016 (rupees one hundred sixty
crores eighty three lakhs fifty six thousand sixteen rupees
only) is estimated required to be spent. In this manner if
appointment of teachers of secondary schools are done
under the new proposed Rules, total amount of
Rs.71,00,84,016 (Seventy one crores, eighty four thousand
sixteen rupees only) shall be saved. From this saved
amount, on fixed salary total 10,000 posts of teachers
could be created. From these created posts, for the
purposes of extension of secondary education in the state,
following schemes shall be floated by the Department of
Human Resources Development.”
11. Thereafter, Bihar Panchayat Elementary Teachers (Employment
and Service Conditions) Rules, 2006 came into effect on 01.07.2006. The
opening recitals of said Rules stated:
“In the exercise of the powers conferred by provision of
Article 243-G (11th schedule section no.17) of the
Constitution of India and Article-47 and 48 read with
Article 146 of Bihar Panchayat Raj Act-2006, the State
Government is pleased to make the following rules for
employment of teachers in the Elementary schools of rural
areas of the state.
Rules:
The Elementary education for the children between 6-14
years of age, has become their fundamental Right under
the Article 21(A) of the Constitution of India. For this it
has become necessary to adopt the comprehensive
programmes for improvement and expansion of
Elementary education (system). It is required to open
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
thousands of new elementary schools and employment of
teachers in large number. It has also become necessary to
handover the responsibility of elementary Education to
Panchayat Raj Institutions considering their important
roles in Elementary Education in the light of 73rd and 74th
amendments of the constitution. Consequently, to achieve
the above goal, this rule is being made for the employment
of teachers in elementary schools.”
Rules 3 and 4 of said Rules were to the following effect:
“3. Grade of Panchayat Elementary Teacher- There will
be two grades of Panchayat Elementary Teachers:-
(A) Block Teacher (Those teachers including physical
Education Teachers employed at block level.)
(B) “Panchayat Teachers” (Teachers employed at
Panchayat level).
4. Employment of Panchayat Elementary Teachers-
(1) Block Teachers will be employed in Middle schools
by Panchayat samiti and Panchayat teachers will be
employed in primary schools by Gram Panchayat.
(2) Category wise panel at both above mentioned level
will be prepared separately for trained and untrained
candidates. At first trained teachers will be employed.
Thereafter if posts remain vacant, untrained teachers may
be employed. Thereafter if posts remain vacant, untrained
teachers may be employed and arrangement will be made
for imparting two years teachers training to them.
(3) In reserved category if higher secondary/intermediate
passed candidates would not be available, secondary
examination (Matriculation) passed candidates may be
employed. But it will be necessary for them to acquire
prescribed qualification within maximum six years.”
Rule 9 dealt with “process of employment” and stated that the
vacant posts would be advertised within the block/panchayat, whereafter
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
application forms from interested candidates would be received by Block
Education Extension Officer for Block Teachers and by the Secretary of
Gram Panchayats from Panchayat Teachers. Sub-Rule 7 of Rule 9 dealt
with constitution and approval of Committee for preparation of panel as
under:-
“7. Constitution and Approval of Committee for
preparation of panel:
Panel will be prepared on the basis of application forms
obtained by the following Committee:
(A) For Block teacher and physical Teacher:-
(i) Pramukh of Panchayat samiti-Chairman
(ii) Executive Officer panchayat Samiti - Member.
(iii) One member elected by education committee of
Panchayat Samiti. (if parmukhe is male member, the
elected member Executive shall be a female)
(iv) Block Education Extension Officer – Member
Secretary
(B) For Panchayat teacher:
(i) Mukhiya of Gram Panchayat – Chairman
(ii) One member elected by Education Committee of
Gram Panchayat case Mukhiya is a male, the elected
member will be female -Member.
(iii) The member of Panchayat samiti whose area covers
most of the area Panchayat – Member
(iv) One teacher from the secondary school either from
to the panchayat nearer to the panchayat nominated
by the D.E.O. – Member.
(v) Secretary Gram Panchayat – Member Secretary.
But the term of the elected members of both the
above committees will of one year.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Note: - In case of (non-existence) non-constituent of
the Education Committee of panchayat samiti and
Gram panchayat, one member of panchayat
samiti/gram Panchyat nominated by the Block
Education Extension officer, will be a member of the
Committee.
(vi) After preparation, the panel will be published or
make available to the public one-week time will be
given for their objection/grievances. Resolving the
grievances obtained, panel will be finalised.
(vii) Panel prepared for employment of Block teachers
and panchayat teacher will be approved by
panchayat samiti and Gram panchayat respectively.
(viii) Selected members will be employed in their willing
schools through counselling by the above
committees in descending order of the preference
mentioned in Anusuchi-II from the panel prepared
on the basis of merit.
(ix) Employment letter will be given to the selected
candidate (Anusuchi-III)
(x) Their joining will be accepted on the basis of their
consent letter.”
In terms of Rule 12, trained Block Teachers and Panchayat
Teachers as well as untrained Block Teachers and Panchayat Teachers
were to be employed on fixed pay and the trained Block Teachers and
Panchayat Teachers would be entitled to an increase in their fixed pay by
Rs.500/- every three years, while untrained block teachers and panchayat
teachers would be entitled to increment of Rs.300/- every three years.
Under Rule 13 the posts were non-transferable. Under Rule 20 dealing
with Repeal and Savings it was stated that Panchayat Shiksha Mitras
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
employed under previous circulars, orders, instructions were deemed to be
employed as panchayat teachers under these Rules.
12. On 11.07.2006, two sets of Rules were framed by the State. First,
dealing with subject of appointment of teachers in Government
Nationalized Secondary Schools in the Urban Areas of the States while
the second set dealt with the subject of appointment of teachers in
Government Nationalized Secondary Schools in Rural areas of the State.
The opening recitals in respect of both the sets of Rules were identical and
were to the following effect:-
“The State Government has taken a policy decision for the
expansion and strengthening of the Secondary and Higher
Secondary Schools of the state. At present, it is necessary
to fill up a large number of vacancies of the teachers.
Apart from this, more schools and teachers are also
needed. It has been decided to organize + 2 level of higher
secondary schools under 10 + 2 + 3 pattern in accordance
with the National Education Policy, 1986/1992. As per the
73rd and 74th Amendment of the Constitution, the
Government has decided, to decentralize the appointment
of the teachers of the Secondary and Higher Secondary
Schools and to entrust the responsibility of the
appointment of teachers of Secondary Schools to the
Panchayati Raj Institutions. These rules are being made to
achieve this aim under special planning for the
appointment of teachers in the Secondary Schools.”
A) The First set of Rules were called the Bihar Municipal Body
Secondary and Higher Secondary Teachers (Employment and Service
Conditions) Rules 2006. Rule 4 dealt with the subject of eligibility for
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
appointment to the posts of Municipal Secondary Teachers under Part A
while Part B dealt with similar issues as regards Municipal Higher
Secondary Teachers. The procedure for employment was dealt with in
Rule 6, according to which the information of subject-wise vacant posts of
teachers in Government Nationalized Secondary Schools situated in
Municipal areas would be advertised in that area. Sub-Rule (6) of Rule 6
dealt with Constitution of Committees for preparation of panels in respect
of Municipal Panchayat/Municipal board and for Municipal Corporations
as under:
“Constitution of Committee for the preparation of panel and its
approvalOn the basis of received applications, the following committee
shall prepare the panel:
(a) Committee for Municipal Panchayat/Municipal Board
1. Chairman of Municipal Panchayat
/Municipal Board
President
2. One selected Member of Education
Committee of Municipal panchayat/
Municipal board (In case of male
president, the selected member shall be
female)
Member
3. Executive Officer of Municipal
Panchayat/ Municipal Board
Member
4
.
Concerned Sub-divisional
Officer
Member
Secretary
If Scheduled Caste/Scheduled Tribe are not there in the
aforesaid committee, then the District Welfare Officer shall be
the additional member of the Committee.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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But the tenure of the member selected by the Education
Committee of Municipal Panchayat/Municipal Board shall be of
1 year.
Note: - In case of non-constitution of the education committee
of Municipal Panchayat/Municipal Board, one officer of the
district level shall be nominated by the executive officer of the
Municipal Panchayat/Municipal Board.
(b) Committee for the Municipal Corporation
1. Mayor of Municipal Corporation President
2. One selected member of Education
Committee of Municipal Corporation
(In case of male president, the selected
member shall be female)
Member
3. Executive Officer of Municipal
Corporation
Member
4 Concerned District Education Officer Member
Secretary
If Scheduled Caste/Scheduled Tribe are not there in the
aforesaid committee, then the District Welfare Officer shall be
the additional member of the Committee.
But the tenure of the member selected by the Education
Committee of Municipal Corporation shall be of 1 year.
Note: In case of non-constitution of the education committee of
Municipal Corporation an officer of the district level shall be
nominated by the Chief Officer of the Municipal Corporation.”
In terms of Rule 8, Municipal Secondary Teachers, trained and
untrained, would be entitled to fixed salary every month and also increase
of Rs.600 per month and Rs.500 per month respectively on completion of
3 years. Similarly, salary of Municipal Higher Secondary Teachers,
trained and untrained, was also a fixed salary with increase of Rs.700 per
month and Rs.600 per month for trained and untrained categories on
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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competition of 3 years. Under Rule 10, the posts of Municipal Secondary
and Higher Secondary Teachers were normally not transferable, but after
completion of three years, the teachers could avail the facility of
maximum two transfers within the jurisdiction of the Municipal Body.
Rule 16(2) was to the following effect:-
These Rules shall not affect the salary and service
conditions of the teachers of Government, Nationalised
Secondary and Higher Secondary Schools appointed under
the provisions of the previous Rules.”
B) The Second set of Rules were called the Bihar District Board
Secondary and Higher Secondary Teachers (Employment and Service
Conditions) Rules, 2006. Rule 4 dealt with the subject of eligibility for
appointment to the posts of District Board Secondary Teachers under PartA while Part-B dealt with similar issues as regards District Board Higher
Secondary Teachers. The procedure for employment was dealt with in
Rule 6, according to which the information of subject-wise vacant posts in
Government nationalized secondary schools situated in the District Board
areas would be advertised in the District. Sub-Rule (6) of said Rule 6
dealt with constitution of Committees for the preparation of panels in
respect of District Boards as under:-
“vi. Constitution of Committee for the preparation of panel and
its approval-
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
On the basis of received applications, the following Committee
shall prepare the panel:
a Chairman of District Board President
b One selected Member of Education
Committee of District Board
(In case of male President, the selected
member shall be female)
Member
C Deputy Development Commissioner Member
d District Education Officer Member
Secretary
If Scheduled Caste/ Scheduled Tribes are not there in the
aforesaid committee, then the District Welfare Officer shall be
the additional member of the committee.
But the tenure of the member selected by the Education
Committee of District Board shall be of 1 year.
Note:- In case of non-constitution of the education committee of
District Board, one officer of the district level shall be
nominated by the Deputy Development Commissioner.”
In terms of Rule 8, District Secondary Teachers, trained and
untrained, would be entitled to fixed salary every month and also an
increase of Rs.600/- per month and Rs.500/- per month respectively on
completion of three years. Similarly, the District Board Higher Secondary
Teachers, trained and untrained, would also be entitled to a fixed salary
with increase of Rs.700/- per month and Rs.600/- per month respectively
for trained and untrained categories on completion of three years. Under
Rule 10, the posts of District Board Secondary and District Board Higher
Secondary Teachers were normally non-transferable, but on completion of
three years, the teachers could avail the facility of maximum two transfers
within the jurisdiction of the District Board. Rule 16(2) was as under:-
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
“These Rules shall not affect the salary and service
conditions of the teachers of Government, Nationalised
Secondary and Higher Secondary Schools appointed under
the provisions of the previous Rules.”
13. Thus, three sets of Rules came into effect in July, 2006. Bihar
Panchayat Elementary Teachers (Employment and Service Conditions)
Rules, 2006 dealing with elementary teachers come into force on
01.07.2006; Bihar Municipal Body Secondary and Higher Education
Teachers (Employment and Service Conditions) Rules, 2006 dealing with
teachers employed in secondary and higher secondary teachers in urban
areas came into effect on 11.7.2006. Bihar District Board Secondary
Higher Secondary Teachers (Employment and Service Conditions) Rules,
2006 dealing with secondary and higher secondary teachers in rural areas
also came into effect on 11.7.2006. These three sets of Rules, for facility,
are hereinafter referred to as ‘2006 Rules’ and the teachers appointed in
terms of said Rules, again for facility, are referred to as ‘Niyojit Teachers’,
which expression appears in all official circulars and resolutions.
After the framing of Rules of 2006, the appointments to the posts of
teachers in urban as well as rural areas in respect of nationalized schools
in the State were made on the basis of said Rules of 2006. The service
conditions and emoluments payable to those teachers were governed
under the provisions of the respective sets of 2006 Rules as aforesaid.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
20
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
The emoluments payable to those teachers were, however, lower than the
emoluments paid to all the teachers who were appointed before said Rules
of 2006 had come into force. Thus, there were two categories of teachers,
the first being those teachers who upon nationalization continued or were
appointed in all Government schools before 2006 and the second category
was all the teachers appointed under 2006 Rules. The First category i.e.
regular Government Teachers were entitled to a pay-scale and certain
emoluments, whereas the Second category of teachers were appointed by
Local Authorities on a fixed salary.
It was, however, the policy decision of the State that post 2006
there would not be any fresh regular appointments in the First category
and all regular appointments post 2006 would be only in terms of 2006
Rules i.e. in the Second category. There is, however, an exception under
which certain teachers were appointed under the First category even after
2006 which will be dealt with hereafter. Barring such exception, the
policy decision had been that no fresh appointments be made in the First
category and that the First category would be treated as a dying or
vanishing cadre.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
21
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
14. The RTE Act enacted by the Parliament to provide for free and
compulsory education to all children in the age bracket of 6 to 14 years,
came into force on 01.04.2010.
A. Sections 2 (a), (f) and (n) which define terms ‘appropriate
Government’, ‘elementary education’ and ‘school’ are as under:-
“2. Definitions.- In this Act, unless the context otherwise
requires, -
(a) “appropriate Government” means –
(i) In relation to a school established, owned or
controlled by the Central Government, or the
administrator of the Union territory, having no
legislature, the Central Government;
(ii) In relation to a school, other than the school referred
to in sub-clause (i), established within the territory
of –
(A) A State, the State Government;
(B) A Union Territory having legislature, the
Government of that Union territory;
… … …
(f) “elementary education” means the education from
first class to eighth class;
… … …
(n) “school” means any recognised school imparting
elementary education and includes –
(i) a school established, owned or controlled by the
appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole
or part of its expenses from the appropriate
Government or the local authority;
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
22
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or
grants to meet its expenses from the appropriate
Government or the local authority;”
B. Chapter III of the Act deals with “Duties of Appropriate
Government, Local Authority and Parents” and Sections 6 and 7
appearing in this Chapter are as under:-
“6. Duty of appropriate Government and local
authority to establish school. – For carrying out the
provisions of this Act, the appropriate Government and the
local authority shall establish, within such area or limits of
neighbourhood, as may be prescribed, a school, where it is
not so established, within a period of three years from the
commencement of this Act.
7. Sharing of financial and other responsibilities. – (1)
The Central Government and the State Governments shall
have concurrent responsibility for providing funds for
carrying out the provisions of this Act.
(2) The Central Government shall prepare the estimates of
capital and recurring expenditure for the implementation
of the provisions of the Act.
(3) The Central Government shall provide to the State
Governments, as grants-in-aid of revenues, such
percentage of expenditure referred to in sub-section (2) as
it may determine, from time to time, in consultation with
the State Governments.
(4) The Central Government may make a request to the
President to make a reference to the Finance Commission
under sub-clause (d) of clause (3) of article 280 to
examine the need for additional resources to be provided
to any State Government so that the said State
Government may provide its share of funds for carrying
out the provisions of the Act.
(5) Notwithstanding anything contained in sub-section (4),
the State Government shall, taking into consideration the
sums provided by the Central Government to a State
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
23
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Government under sub-section (3), and its other resources,
be responsible to provide funds for implementation of the
provisions of the Act.
(6) The Central Government shall-
(a) develop a framework of national curriculum with
the help of academic authority specified under
Section 29;
(b) develop and enforce standards for training of
teachers;
(c) provide technical support and resources to the
State Government for promoting innovations,
researches, planning and capacity building.”
C. Chapter IV deals with “Responsibilities of Schools and Teachers”
and Sections 23 and 25 deal with issues such as qualifications and
conditions of service of teachers as well as Pupil-Teacher Ratio as under:
“23. Qualifications for appointment and terms and
conditions of service of teachers. –
(1) Any person possessing such minimum qualifications,
as laid down by an academic authority, authorised by the
Central Government, by notification, shall be eligible for
appointment as a teacher.
(2) Where a State does not have adequate institutions
offering courses or training in teacher education, or
teachers possessing minimum qualifications as laid down
under sub-section (1) are not available in sufficient
numbers, the Central Government may, if it deems
necessary, by notification, relax the minimum
qualifications required for appointment as a teacher, for
such period, not exceeding five years, as may be specified
in that notification:
Provided that a teacher who, at the commencement of this
Act, does not possess minimum qualifications as laid
down under sub-section (1), shall acquire such minimum
qualifications within a period of five years.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
24
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Provided further that every teacher appointed or in
position as on the 31st March, 2015, who does not possess
minimum qualifications as laid down under sub-section
(1), shall acquire such minimum qualifications within a
period of four years from the date of commencement of
the Right of Children to Free and Compulsory Education
(Amendment) Act, 2017.
(3) The salary and allowances payable to, and the terms
and conditions of service of, teacher shall be such as may
be prescribed.
… … …
25. Pupil-Teacher Ratio. – (1) Within three years from
the date of commencement of this Act, the appropriate
Government and the local authority shall ensure that the
Pupil-Teacher Ratio, as specified in the Schedule, is
maintained in each school.
(2) For the purpose of maintaining the Pupil-Teacher Ratio
under sub-section (1), no teacher posted in a school shall
be made to serve in any other school or office or deployed
for any non-educational purpose, other than those
specified in section 27.”
D. Section 35 empowers the Central Government to issue directions
while Section 38 empowers appropriate Government to make rules. In
exercise of powers conferred by Section 38 of the RTE Act, the Central
Government made “The Right of Children to Free and Compulsory
Education Rules, 2010” (hereinafter referred to as “2010 Rules”), which
came into effect on 8.4.2010. Part VI of 2010 Rules deals with topic
‘Teachers’ and Rule 20 appearing in said Part VI is as under:-
“20. Salary and allowances and conditions of service of
teachers. – (1) The Central Government or the appropriate
Government or the local authority, as the case may be,
shall notify terms and conditions of service and salary and
allowances of teachers of schools owned and managed by
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
25
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
them in order to create a professional and permanent cadre
of teachers.
(2) In particular and without prejudice to sub-rule (1), the
terms and conditions of service shall take into account the
following, namely:-
(a) accountability of teachers to the School Management
Committee;
(b) provisions enabling long-term stake of teachers in the
teaching profession.
(3) The scales of pay and allowances, medical facilities,
pension, gratuity, provident fund, and other prescribed
benefits of teachers shall be at par for similar qualification,
work and experience.”
15. In exercise of powers conferred by Section 38 of the RTE Act, State
of Bihar made, The Bihar State Free and Compulsory Education of
Children Rules, 2011. The concept of neighbourhood was dealt with in
Rule 2(1)(k) and Rule 4 speaking about establishment of a primary school
within 1 km of all habitations was as under:-
“4. (1) the areas or limits of neighbourhood within which
a school has to be established by the State Government
shall be as under –
(a) A primary school has to be established within a
limit of 1(one) km. of all habitations, where number of
children between the ages of 6-14 years are at least 40
(forty):
(b) An elementary school has to be established
within a limit of 3 (three) km. of any habitation:
(2) wherever required, the State Government shall upgrade
a primary school to elementary school.
(3) In places with difficult terrain, risk of floods,
landslides, erosion, lack of roads and in general, danger
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
26
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
for young children in the approach from their homes to the
school, the State Government or the local authority may
consider to locate the school in such a manner as to avoid
such dangers, by relaxing the limits specified under sub
rule (1) of rule 4.
(4) For children from very small habitations as identified
by the State Government/Local Authority, where no school
exists within the area or limits of neighbourhood specified
under Sub-Rule (1) above, the State Government/Local
Authority shall make adequate arrangements, such as free
transportation, residential facilities and other facilities, for
providing elementary education.
(5) In areas with high population density, the State
Government/local authority may consider establishment of
more than one neighbourhood school, having regard to the
number of Children in the age group of 6-14 years in such
areas.
(6) The Local Authority shall identify the neighbourhood
school(s) where children can easily be admitted and made
such information public for each habitation within its
jurisdiction.
(7) In respect of children with disabilities, which prevent
them from accessing the school the State
Government/Local Authority will endeavour to make
appropriate and safe transportation arrangements for them
to attend school and complete elementary education.
(8) The State Government/Local Authority shall ensure
that access of children to the School is not hindered by
social and cultural factors.”
Part 6 of the Rules dealt with “minimum qualifications of teachers for
the purpose of sub section (1) of Section 23 of the Act and Rule 17 was as
under:-
“Salary, allowances and conditions of service of
teachers for the purpose of sub-Section (3) of Section
23 of the Act
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
27
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
17. (1) The State Government shall notify salary,
allowances and conditions of service for creation of a
professional and permanent cadre of teachers.
(2) Following points shall be taken into
consideration without prejudice for sub-rule (1) and
especially for the determination of conditions of service:-
(a) The teachers should be accountable to the school
education committee constituted under Section 21 of the
Act.
(b) The provision of creation of favourable
conditions for teachers to stay in teaching profession for
long period.”
16. Soon thereafter Bihar Panchayat Elementary Teachers
(Employment and Services Conditions) Rules, 2012 came into force on
03.04.2012. The terms Primary School, Middle School and Elementary
School by defining Rules 2 (i)(ii)(iii) respectively as under:-
“(i) “Primary school” means the government or
government taken-over schools where at present education
is provided upto class-V level.
(ii) “Middle school” means government/government
taken over schools where at present education is provided
upto class VIII level.
(iii)“Elementary school” means government/
government taken over primary and Middle schools.”
Rule 5 prescribed minimum qualifications for employment in respect
of teachers for classes I to V and classes VI to VIII. Rule 15 dealt with
consolidated pay of the teachers as under:-
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
28
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
“15. Service Conditions of Niyojit teachers.-(a) Consolidated
Pay.-(i) the Panchayat elementary teachers will get the
consolidated pay as follows:-
Trained teachers (basic grade) -7000/- per month
Untrained teachers (basic grade) -6000/- per month
Trained teachers (Graduate grade) -8000/-per month
Untrained teachers (Graduate grade) -7500/- per month
Trained teachers (H.M. Middle School) -14000/- per month
(ii) The instructors will get 4000/- consolidated pay per
month.
(iii) If in future, the state government takes a decision to
revise their consolidated pay, they will get the pay accordingly.
(iv) No other allowances like dearness allowance, house
rent allowance, medical allowances, transport allowance etc.
will be given to the Panchayat elementary teachers and
instructors employed under these rules.”
Sub rule (b) then dealt with pay increase and stated that the
evaluation (“efficiency test”) of Niyojit Teachers as directed by the
Government according to Employment Rules, 2006 would be undertaken
and based on evaluation, the trained teachers securing 45% in general
category and 40% in reserved category would get an increase of Rs.500 in
their consolidated pay while untrained teachers wold get increase of
Rs.300/- in their fixed pay after three years.
Sub rule (f) dealt with “Promotion” and clause 3 thereafter stated that
the promotion to the post of headmaster in fixed pay of middle schools
would be given from the seniority list of graduate trained teachers and from
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
29
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
the seniority list of teachers having at least 5 years of minimum satisfactory
service in graduate grade at block level.
Similar provisions for teachers working in urban areas were made by
the Bihar Nagar Elementary Teachers (Employment and Service
Conditions) Rules, 2012.
17. Though after the enforcement of 2006 Rules, the regular cadre of
Government Teachers was to be taken as a dying or vanishing cadre and
fresh appointments were to be made only in terms of 2006 Rules on fixed
pay and power appointment was vested with Panchayati Raj Institutions,
there was an exception and some Assistant Teachers in regular pay scale as
Government Teachers in secondary schools came to be appointed in the
year 2013 in following circumstances.
Sometime in December 2003, an advertisement was issued by the
State to fill up the posts of Assistant teachers. However, certain
irregularities were found in the preparation of panels during selection
process. Therefore, orders were issued for cancellation of panels. A
challenge was raised by some candidates and the High Court directed the
State to recalculate the vacancies and to go ahead with the process of
selection. Special Leave Petition No.22882 of 2004 filed in this Court by
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
30
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
the State was withdrawn. Thereafter, the State attempted to fill the
vacancies in terms of 2006 Rules which led to the filing of Contempt
Petition No.297 of 2007 in this Court. By order dated 9.12.2009, this Court
directed the State Government to fill up 34540 posts of Assistant teachers
as per advertisement published in December 2003 as one time appointment.
The Bihar Special Primary Teachers Appointment Rules, 2010 were
therefore framed. These Rules were to deal with exceptional situation
which was styled as “One Time Appointment.” Accordingly, 34540
teachers were appointed in 2013 as Government Teachers on regular pay
scales. The developments including the difficulty expressed by the State in
accommodating teachers because of change in policy were dealt with by
this Court in Nand Kishore Ojha v. Anjani Kumar Singh1
as under:-
“1. Contempt Petition (C) No. 297 of 2007, filed in SLP
(C) No. 22882 of 2004, arose out of an alleged breach of
undertaking said to have been given on 18-1-2006 by the
State of Bihar and the order passed on the basis thereof on
23-1-2006 by this Court in State of Bihar v. Nand Kishor
Ojha (2014 11 SCC 404) As we have indicated in our
order dated 9-1-2009, a number of writ petitions had been
filed against the State of Bihar, raising issues relating to
recruitment of teachers in primary schools. At one stage, it
was brought to our notice that on account of changes in
the policy, trained teachers who were in place at the time
when the undertakings were given, could not be
accommodated. Accordingly, we had passed orders
directing that the trained teachers who at one time were
less than the number of vacant posts, should be given
appointment in the vacancies that were available.
1(2014) 11 SCC 405
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
31
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Subsequently, however, there was some discrepancy as to
the number of vacancies available as against the number
of teachers to be accommodated. Accordingly, we adopted
a figure from an advertisement which had been published
for recruitment of primary school teachers and took the
number of available vacancies to be 34,540.
2. We had directed that the said vacancies be filled up with
the said number of trained teachers as a one-time measure
to give effect to the undertakings which had been given on
18-1-2006 and 23-1-2006. Accordingly, without issuing a
rule of contempt, we had directed that the said vacancies
be filled up from amongst the trained teachers who are
available in order of seniority. Subsequently, however, it
came to light that the number of candidates available were
much more than the number of vacancies and there were
also serious doubts raised about the eligibility of some of
the candidates and some of the institutions from which
they alleged to have received their training.”
As a result, 34,540 primary school teachers came to be appointed in
the year 2012-13. These teachers though appointed after 2006 were not
appointed in terms of 2006 Rules but Special Recruitment Rules called
2013 Rules were formulated.
18. An association of teachers called Parivartankari Prarambhik
Shikshak Sangh approached the High Court by filing Civil Writ
Jurisdiction Case No.7089 of 2013 contending that the Panchayat
elementary teachers were entitled, under the principle of “equal pay for
equal work”, to same pay-scales which were being given to the teachers
appointed under the State Government. The matter was contested and the
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
32
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Single Judge of the High Court dismissed said Writ Petition by his
judgment and order dated 5.4.2013. It was observed:-
“Here is a case where the State as a matter of policy came
up with a scheme of mass employment at grass root level
at the Panchayats to ensure that sufficient teachers are
available at the local level so that children who have no
ready access to education also have such opportunity. In
the aforesaid background, as far as the State exchequer is
concerned, the policy/scheme was in accordance with the
burden it could bear for such recruitment under which the
members of the petitioner’s society have been appointed.
That being the case, it is entirely at the discretion of the
State Government to decide the service conditions
including pay-scale for persons appointed under the
aforesaid Rules. The Court would not substitute is own
views or force the State to make payment from the public
exchequer as it is the State which is also accountable for
such expenditure and has to justify such payment.
If the State Government has framed a policy/scheme for
evolving a way of balancing between the requirement of
teachers and the financial liability together with
devolution of power to the Panchayats, the Court would
not interfere and disturb the equilibrium.”
19. Around this time, several other writ petitions were filed, being
aggrieved by the differential treatment, where the Niyojit Teachers
appointed under Rules of 2006 were not been given the same pay-scales
and were differentially treated. These petitions highlighted denial of
concept of “equal pay for equal work” and challenged the validity of
relevant provisions of 2006 Rules. The matters were taken up by the
Division Bench of the High Court, the lead matter being CWJC 21199 of
2013 filed by the Bihar Secondary Teachers Struggle Committee, Munger.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
33
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
20. In response, the stand of the State was that there were differences
between two categories of teachers. In supplementary counter affidavit
filed by the Director, Secondary Education, the difference was projected
as under:-
“13. That the comparative difference between the aforesaid two
categories of teachers is more apparent from the tabular chart
prepared hereinafter:-
Sl.
No.
Head Earlier District
Cadre Teacher
Niyojit Teacher
1. Cadre District/Division Respective Panchayat,
Block, Nagar Panchayat,
Nagar Parishad, Nagar
Nigam or Zila Parishad, as
the case may be.
2. Status Employee of State
Government
Employee of respective
institution of Panchayati
Raj Institution/Urban
Local bodies/Zila Parishad
3. Nature
of
Cadre
Dying/diminishing
cadre
To continue
4. Nomen
clatur
e of
post
Assistant Teacher Panchayat
Teacher/Prakhand Teacher/
Nagar Teacher/Zila
Parishad Madhyamic
Teacher/Nagar Parishad
Madhyamic Teacher/Zila
Parishad Uchhtar
Madhyamic Teacher/Nagar
Parishad Uchttar
Madhyamic Teacher
5. Appoi
nting
Autho
rity
District
Superintendent of
Education now
District Education
Officer/Director,
Secondary
Education
Respective PRI’s/Urban
Local Bodies/Zila Parishad
6. Mode
of
BPSC based on
competitive
Based on Marks obtained
in academic course and
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
34
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Recru
itment
examination/Erstw
hile Vidyalaya
Seva Board
training course
7. Rules Bihar Elementary
Schools Teachers
Appointment
Rules, 1991 as
amended AND
Bihar Secondary
Schools Teachers
Appointment
Rules.
Bihar Panchayat
Elementary Teachers
(Employment and Service
Conditions) Rules, 2012;
Bihar Nagar Elementary
Teachers (Employment and
Service Conditions) Rules,
2012; Bihar District Board
Secondary and Higher
Secondary Teachers
(Employment and Service
Conditions) Rules, 2006;
Bihar Municipal Body
Secondary and Higher
Secondary Teachers
(Employment and Service
Conditions) Rules 2006; as
amended.
8 Status
of
appoi
ntmen
t
Rules
The said relevant
Rules has already
repealed.
It is in existence
9. No. of
teache
rs
Upto 2006 in
Primary &
Secondary about
1,30,000
After 2006 in Primary &
Secondary about 4.4 lakhs
10. Appell
ate
Autho
rity
RDDE/Director,
Secondary
Education
District Appellate
Authority/State Appellate
Authority.
21. During the pendency of these matters, a Resolution was passed by
the State Government on 11.08.2015, under which the Niyojit Teachers
were granted a pay-scale instead of fixed salary that was contemplated
under 2006 Rules. The Resolution also indicated number of primary
teachers, secondary teachers and higher secondary teachers as well as
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
35
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
librarians that were appointed and the pay-scale that was given to those
teachers. The tabular chart given in the Resolution was as under:-
“2.1 Primary Teacher
Sl.
No.
Post No. of
Vacancies
Pay-scale Grade
pay
1 2 3 4 5
1. Primary
Teacher
(Untrained)
62031 5200-
20200
5
2. Primary
Teacher
(Trained)
245344 5200-
20200
0
3. Primary
Teacher
(Graduate
untrained)
14000 5200-
20200
0
4. Primary
Teacher
(Graduate
trained)
22739 5200-
20200
2400
Total
Teachers
(inclusive
of number
of teachers
to be
appointed
in future as
against the
declared
vacancies)
344114
2.2 Secondary Teacher/Librarian
Sl.
No.
Post No. of
Vacancies
Pay-scale Grade
pay
1 2 3 4 5
1. Secondary
Teacher
(Untrained)
4463 5200-
20200
0
2. Secondary
Teacher
(Trained)
25038 5200-
20200
2400
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
36
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
3. Librarian 1900 5200-
20200
0
4. Higher
Secondary
Teacher
(10+2)
(untrained)
3058 5200-
20200
0
5. Higher
Secondary
Teacher
(10+2)
(trained)
26774 5200-
20200
2800
Total
Teachers
(inclusive
of numbers
of teachers
to be
appointed
in future as
against the
declared
vacancies)
61233
Para 2.5 of the Resolution was as under:-
“2.5 The benefit of Dearness Allowances; Medical Allowances;
House Rent Allowances and Annual Increment, as announced
for State Govt. Employee from time to time, will be extended to
Niyojit Trained, Untrained |Primary, Secondary, Higher
Secondary Teachers and Librarians.”
The Resolution further prescribed the minimum basic pay-scale for
trained primary, secondary and higher secondary teachers as well as the
librarians from 1.7.2015. Additionally, the Resolution stated that amounts
of Rs.2,000/- for trained teachers, Rs.2,400/- for secondary trained
teachers and librarians and Rs.2,800/- for higher secondary trained
teachers would be payable as Grade Pay. Similarly, in cases of untrained
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
37
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
teachers it was stipulated that with effect from 1.7.2015 there would be
rise of at least 20% in their emoluments and they would also be entitled to
Special Allowance. The Resolution further stated that the revised
emoluments would entail financial impact as under:-
Particulars of additional financial impact
Sl.
No.
Grade Number of
Niyojit
Teachers
who
would
benefit
Total
emoluments
payable in
terms of the
pay-scale
Total
emoluments
being paid
presently
Total
additional
financial
impact
(figure in
crores)
1 Primary
Teacher
344114 6693.23 4173.21 2520.04
2 Secondary
Teachers,
Higher
Secondary
Teachers
and
Librarians
61233 1259.30 830.85 428.45
Total 405347 7952.55 5004.06 2948.49
22. When the matters were taken up for consideration by the Division
Bench, it was submitted on behalf of the Writ Petitioners that both
categories of teachers i.e. Government Teachers and Niyojit Teachers
were imparting instructions in the same nationalized schools and yet there
was considerable difference in the emoluments paid to Niyojit Teachers;
that both the categories of teachers were discharging same responsibility
and were teaching the same syllabus and there was no difference in the
performance of their duties and responsibilities; that the distinction made
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
38
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
between these two categories was completely unreasonable and that on
the basis of constitutional principle of “equal pay for equal work” Niyojit
Teachers were entitled to same salary, pay-scales and emoluments as were
payable to the Government Teachers in nationalised schools. Strong
reliance was placed on the decision of this Court in State of Punjab and
others vs. Jagjit Singh and others2
and particularly on paras 42 and 44
thereof.
While defending the action on part of the State, the learned
Advocate General submitted inter alia that the Writ Petitioners were
appointed under the provisions of 2006 Rules and as such, they could not
challenge the validity of the Rules under which they were appointed; that
the teachers appointed before 2006 were appointed by the Director on the
recommendations of Vidyalaya Seva Board/Bihar Public Service
Commission/Subordinate Service Selection Board whereas Niyojit
Teachers were appointed under completely different sets of Rules; that the
teachers appointed prior to 2006 was a dying or a vanishing cadre and
there were no fresh appointments in that category; thus the Niyojit
Teachers could not claim any parity on the basis of “equal pay for equal
work”.
2(2017) 1 SCC 148
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
39
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
At the conclusion of the hearing, written submissions were also
filed on behalf of the State to the following effect:-
“1. That in the instant matter argument proceedings are
completed and order reserved on 09.10.2017, the instant
written submission is being filed with a view to
supplement the contentions raised in the earlier affidavits
in respect of claim raised by the petitioners in this case.
2. That it is stated that at present 3,19,703 teachers in
Elementary Education and 37,529 teachers in Secondary
& Higher Secondary Education are working under
Panchayati Raj institutions and Urban Local Bodies and
the State Government provides grants-in-aid to the local
bodies for the payment of salary to such teachers and at
present the estimated budgetary expenditure is about
Rs.8924.48 Crores per annum.
3. That if the teachers appointed by the local bodies are
allowed salary at par with teachers of dying cadre of State
Government, the estimated budget will come to
Rs.18853.96 crores, for which additional budgetary
allocation of Rs.9929.48 crores will be required.
4. That it is relevant to mention here that there are large
number of vacancies of teachers from Elementary level to
Higher Secondary level which are likely to be filled up in
due course. As per available information, 1,71,775 vacant
posts of teachers in Elementary Education and 38000
vacant posts in Secondary/Higher Secondary Education
exist and this way, an additional amount of Rs.6144.02
crores would be required to meet salary for payment of
future recruitments.
5. That in view of aforementioned discussions, it would
be evident that an additional budgetary allocation of
Rs.16073.50 crores would be required to meet the
expenses likely to be incurred in payment of salary to the
working teachers as well as teachers likely to be recruited
in near future under local bodies in addition to the present
estimated budgetary expenditure of Rs.8924.84 crores,
which would be apparent from the chart annexed herewith.
A photocopy of composite chart is annexed herewith an is
marked as Annexure-R in this written submission.
6. That it is relevant to point out here that at present the
total budgetary provision on education by the State
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
40
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Government is Rs.25251 crores which is about 16% of
total budgetary provision of the State Government and if
the prayer of the petitioner of these bunch of writ
applications would be allowed, the fiscal condition of the
State would get adversely affected and further, it would
also affect all other duties and functions including welfare
programme of the State Government.
7. That in view of the aforementioned facts, the
deponent humbly submits that while deciding the issue in
question, the aforesaid fact needs to be considered by this
Hon’ble Court.
23. All the Writ Petitions were allowed by the High Court by its judgment
and order dated 31.10.2017. During the course of said judgment, following
issues were framed:-
“(i) Whether Rules 6 and 8 of Rules 2006 are consistent
with Article 14 of the Constitution of India or it is
violative of Article 14 of the Constitution.
(ii) Whether the Niyojit Teachers are entitled to equal
pay for equal work at par with the teachers
appointed in the nationalised school prior to coming
into force 2006 Rules or not?
(iii) Whether the writ petitioners are entitled to a
direction for fixation of their pay at par with their
counterparts teachers appointed in the nationalised
school prior to framing of 2006 Rules or not?”
24. It was observed that there was no pleading that the Niyojit
Teachers appointed after 2006 were, in any manner, inferior in
qualification or training and that there was no material to suggest that they
were discharging different duties and responsibilities in the same
institution. It was found that the admitted position was that both
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
41
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
categories of teachers were discharging similar duties of imparting
instructions in same schools and were having necessary qualifications as
were possessed by the teachers appointed before 2006. The High Court
placed reliance on the decisions of this Court in Jagjit Singh2
and Jaipal
and others vs. State of Haryana and others3
and found that the action on
part of the State in denying the pay-scales to Niyojit Teachers was
arbitrary and unreasonable. It was concluded as under:-
“58. Thus materials on the record are clinching on the
point that the Niyojit Teachers are regular teachers
working in the nationalised school under the control of the
State Government. The State Government has adopted two
different pay-scales one for the Niyojit Shikshak and the other
for the teachers known as regular teachers appointed prior
to framing of 2006 Rules. Such discrimination in the payscale on the basis of artificial distinction is unreasonable.”
25. During the course of its discussion, it was also observed as under:-
“46. I also find that the poor scale to the Niyojit Shikshak
has adversely affected the academic atmosphere in the
state of Bihar. The ill paid teachers without having any
promotional prospects cannot be expected to deliver the
best. The settled principle of personal management is that
incentive and prospect boost the moral of man force in
service. The better salary and prospect in the career is
catalyst for the best performance, the teachers in such
schools drawing less than the class 4 employee are not
good to the institution and the society. It is a matter to
introspect and the State Government must rise to the
situation and undo the injustice by making payment at par
with the other regular teaches to the Niyojit teachers. It
appears that the poor payment to the teachers appointed
under 2006 Rules has adversely affected the recruitment of
3 AIR 1988 SC 1504
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
42
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
the best and most competent teachers and probably that is
one of reasons that there is mushrooming of coaching
Institutes where the students are more attracted then
regular teaching in the school. The Court cannot ignore
the ground reality.”
Finally, the High Court directed, inter alia,
“(ii) The petitioners are entitled to “equal pay for equal
work”
(iii) The respondents are directed to fix their pay-scale
like regular teachers of the nationalised school with effect
from the initial date of appointment notionally and actual
payment with effect from 8.12.2009, the date of filing of
CWJC No.17176 of 2009, in view of the fact that such
grant of relief from the date of filing of the writ
application was approved by the Apex Court in the case of
State of Haryana vs. Charanjit Singh 4
discussed in the
judgment of Jagjit Singh’s2
case (supra) and I have held
that Rule 8 is inoperative, in effective, inapplicable from
the date of inception as it is arbitrary and unconstitutional
and violative of Article 14 of the Constitution so far as the
Niyojit Shikshak are concerned.
(iv) The respondents are also directed to revise the payscale of the petitioners according to the principles of pay
revision under recommendation of the 7th Pay Revision to
the Niyojit Shikshak like other regular employees after
granting equal pay for equal work notionally from the date
of their appointment and actual payment with effect from
the date of filing of 1st of the batch of writ petitions, i.e.
8.12.2009.
(v) Such exercise must be completed within a period of
three months from today and monetary benefits admissible
to the Niyojit Shikshak must be paid to them within a
further period of three months.”
4 (2006) 9 SCC 321
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
43
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
26. State of Bihar, being aggrieved, has challenged the aforesaid
decision of the High Court in these appeals. On 29.01.2018 this Court
passed the following order:-
“The question raised in this batch of petitions is whether
there must be parity in the teachers recruited by the local
bodies and teachers recruited by the State Government.
According to the stand of the State Government, the
teachers recruited by the State Government prior to 2006
are a dieing cadre. There are about 50,000 teachers in the
category of teachers recruited by the State Government as
against approximately 3,50,000 teachers in the category of
the teachers recruited by the local bodies. It is submitted
that there is thus, only one permanent category i.e. those
recruited by local bodies. The salary paid to the second
category is roughly Rs.20,000/- as against the salary of
Rs.56,000/- on an average paid to the teachers recruited by
the State Government as of now.
… … …
Even though, on principle, there has to be parity in the
salary of the teachers, whether recruited by the State
Government or by the local bodies. If any filters,
consistent with the law, are required to be employed for
giving the parity, the same can be done. However,
question is of applicability of such principle where
category of teachers in first category is declared a dieing
cadre. Secondly, we need to consider whether it is
practical to fasten the State Government with the liability
for the arrears. The stand of the State is that in future there
will be only one category i.e. teachers recruited by the
local bodies. Even in such situation, there has to be
rational in the pay package of the teachers recruited by the
local bodies. In doing so, the amount paid by the Central
Government ought to be utilised by the State Government
and the State government may consider the view-point of
the respondents and come out with a proposal which may
be reasonable. It may constitute an Expert Committee of
at least 3 officers in the rank of Chief Secretary. The said
Committee will also be free to interact and consider the
view-point of the concerned teachers as well as any other
stakeholders, in case any suggestion is received by it.
Such suggestion may be addressed/given to the Chief
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
44
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Secretary which in turn can be considered by the Expert
Committee.
We accordingly adjourn the matter to 15th March,
2018 for further consideration.
We consider it necessary to request Mr. P.S.
Narasimha, learned Additional Solicitor General, to assist
the Court to place the view-point of the Central
Government before the Court.
Status quo, as on today, be maintained in the
meantime.”
27. Accordingly, an Expert Committee consisting of Chief SecretaryBihar, Principal Secretary-General Administration Department and
Principal Secretary-Water Resources Department was constituted. The
Committee set out the background facts as under:-
“… … …The Committee perused the Rules relating to
niyojan of teachers under the Panchayati Raj Institutions
as well as Municipal Bodies which was promulgated in the
year 2006 and was amended from time to time. In view of
provisions under rule-20 of the Bihar Panchayat Primary
Teachers (appointment & Service conditions) Rules, 2006,
the earlier contractual appointees on the post of Panchayat
Shiksha Mitra were adjusted/absorbed as panchayat/block
teachers w.e.f. 01.07.2006. Panchayat Shiksha Mitra were
appointed on contractual basis for a period of 11 months
on a fixed remuneration of Rs.1500/- per month from the
year 2002-03 in the rural areas. The total number of such
contractual appointees was 1,04,114 on 01.07.2006, who
were adjusted/absorbed on the post of panchayat/block
teacher and were paid a fixed pay of Rs.5000/- per month
in case they were trained and Rs.4000/- per month in case
they were untrained.
In the said rules, 2006 it was also provided that after
every three years there shall be an increment of Rs.500/-
in case of trained and Rs.300/- in case of untrained on the
basis of their evaluation as prescribed.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
45
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
The Rules, 2006 was amended in the year 2009
wherein provision for Evaluation Test was made and it
was provided that after qualifying in the said test, the
increment in pay shall be granted. It was further provided
that maximum three attempts would be given for
qualifying in the said test failing which they shall be
terminated by their respective employer. The said
evaluation test was only for the purpose of increment in
pay and not for grant of pay-scale, equivalency or
certification, if any.
6. In view of provisions under Article-21A of the
Constitution of India, the education to the children of age
group 6-14 has been made a fundamental right and in the
light of Right of Children to Free & Compulsory
Education Act, 2009 which came into force w.e.f.
01.04.2010, the National Council for Teachers Education
(NCTE) has been notified as the academic authority by the
Central Govt. The NCTE has fixed the minimum
eligibility criteria for appointment on the post of primary
teachers and in that background, Bihar Panchayat Primary
Teachers (appointment & Service conditions) Rules, 2012
has been framed wherein the minimum eligibility criteria
for appointment has been fixed that a candidate should be
qualified in Teachers Eligibility Test conducted by the
Central or State Govt. Thus, the Teachers Eligibility Test
is merely an eligibility to make an application for his/her
selection. In other words, no person can be appointed on
the post of a teacher unless he successfully passes through
the requisite selection process.
7. Similarly, rules for selection on the post of teacher in
Secondary & Higher Secondary Schools were also
promulgated. Selection/appointment in the primary &
secondary segment was made after 2006 by the Gram
Panchayat & Municipal bodies and no provision for any
examination/test was made in the said selection process.
8. For appointment on the post of primary teacher, prior
to 2006 Rules, rules were also framed in 2003 wherein it
was provided that recommendation shall be made for such
appointment after conducting preliminary & mains
examination by the Staff Selection Commission, Bihar.
9. Similarly, for appointment on the post of Secondary
Teacher, prior to 2006 Rules, rules were also framed in
2004 wherein it was also provided that recommendation
shall be made for such appointment after conducting
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
46
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
preliminary & mains examination by the Staff Selection
Commission, Bihar.”
It, thereafter, considered the current situation after the Resolution
dated 11.8.2015 and implementation of the recommendations of 7th Pay
Commission. The Committee went on to observe:-
“18. It may be noted that in the elementary schools there
are about 3,19,703 niyojit teachers whereas; in the
secondary/higher secondary schools there are about
38,715 niyojit teachers (including librarians). Out of those
teachers working in the elementary schools, 2,65,000
teachers are covered under the Sarv Shiksha Abhiyan. For
payment of salary to the teachers covered under the Sarv
Shiksha Abhiyan, the percentage of share of Central
Government and State Government is 60% and 40%
respectively.
… … …
22. … … 1. It is financially impractical to act upon
suggestions received for implementation of order of the
Hon’ble High Court dated 31.10.2017 relating to grant of
pay scale to the niyojit teachers notionally from the date of
their initial joining and actual benefits from 08.12.2009 at
par with that of Assistant Teachers appointed by the State
Government, for the reasons that if the said order is
implemented, the State Government would be liable to pay
an amount of about Rs.52000/- crores in terms of arrears
to such teachers, which would not be possible from the
financial resources of the State Government.”
The Committee, then, suggested:-
“Taking into account the financial resources of the State
Government and procedure adopted for niyojan of such
teachers, upgraded pay structure can be granted to such
niyojit teachers (including teachers who have qualified in
the Teachers Eligibility Test) after going through a
filtration process. The basis of filtration process should be
a special examination conducted for the said purpose.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
47
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Two separate chances shall be given for appearing in the
special examination.”
It was further suggested that upgraded pay structure could be
granted to such Niyojit Teachers who succeeded in special examination
conducted for said purpose and thus, teachers who pass such special
examination be covered under the upgraded pay structure with an
increment of 20% in their pay.
28. An affidavit in reply was, thereafter, filed on behalf of the
Ministry of Human Resource Development, Union of India. It was stated
that Sarva Shiksha Abhiyhan (SSA) and Rastriya Madhyamik Shiksha
Abhiyan (RMSA) were operational from the financial years 2000-2001
and 2009-2010 respectively till 2017-2018 and that both the programmes
were Centrally Sponsored Schemes under which funding was shared
between Central and State Governments. These programmes were
conceived to achieve Universal Elementary Education. It was then
stated:-
“23. To summarise, it is submitted that the Sarva Shiksha
Abhiyan (SSA), the erstwhile Centrally Sponsored
Scheme was being implemented since 2001-02 in
partnership with the State Governments and Union
Territory Administrations for universalising elementary
education across the country. Its overall goals included
universal access and retention, bridging of gender and
social category gaps in education and enhancement of
learning levels of children. Subsequent to the enactment
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
48
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
of the RTE Act, 2009 by Parliament, the SSA norms were
revised to harmonise with RTE provisions. Funds under
SSA are provided for more than 40 interventions such as
opening of new schools, residential school facilities,
additional class rooms, provisioning for teachers, periodic
teacher training etc. The SSA Framework also provides
support for additional teachers to maintain Pupil Teacher
Ratio (PTR) in schools and teachers for new elementary
schools opened under SSA programme. Part of the funds
required for such positions approved and filled-up under
the SSA programme were met by the Central and State
Governments. Since the recruitment and other service
matters of these teachers are under the domain of State
Govts. and UTs, the salary and pay fixation for these
teachers was done by the respective States and UTs.
24. That the Chapter-III point 21 of the Financial
Management and Procurement (FMP) Manual under the
heading “Appointment of teachers” provided that SSA
would be an addition to States and UTs and the States and
UTs would have their own norms for recruitment of
teachers and payments of salary to new recruits. The
States will be free to follow their own norms as long as
these are consistent with the norms prescribed by NCTE
and Assistance will not be available for filling up existing
vacancies that have arisen on account of attrition. A true
typed copy of the FMP Manual of SSA is attached and
marked herewith as ANNEXURE-8.
New Scheme – Samagra Shiksha
25. The Sarva Shiksha Abhiyan (SSA), Rashtriya
Madhyamiik Shiksha Abhiyan (RMSA) and Centrally
Sponsored Scheme on Teacher Education (CSSTE) were
the three major flagship school education development
programmes of the Ministry of Human Resource
Development (MHRD), Government of India being
implemented in partnership with State/UTs since 2000-01,
2009-10 and 1987 respectively. While the SSA covered
the elementary level (grades I-VIII), the RMSA covered
grades IX-X, whereas CSSTE aims to provide
infrastructural and institutional support to Government
Teacher Education Institutions (TEIs) to enhance the
quality of teachers. The approval of these schemes was
upto the end of 12th five year plan in 2016-17. These were
extended for a period of one year i.e. 2017-18, pending
their Evaluation and further approval. Although, the
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
49
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Central Sponsored Schemes of SSA, RMSA and TE have
significantly contributed towards the government’s efforts
to provide access to education in the country, their scope
and coverage remained segmented and did not provide for
any intervention for the pre-school level and only very
limited support for senior secondary levels. Also, there
was a need to focus on the improvement of quality of
education and learning out comes of students. Further,
independent evaluations of the Schemes instituted at the
end of the 12th five year plan, had also suggested increased
convergence and integration between the Schemes through
a single school education development programme
covering grades I-X/XII. Therefore, it has been decided to
formulate a single scheme for School Education by
merging the different school education development
schemes and programmes like the SSA, RMSA and
CSSTE into an overarching programme with the broader
goal of improving school effectiveness measured in terms
of equal opportunities for schooling and equitable learning
outcomes. The draft guidelines for the new scheme were
circulated among the States and UTs for their comments
vide letter No.2-16/2017-EE.3 dated 22nd January, 2018
and also discussed in the National Workshop of all States
and UTs held on 30th January 2018. The new scheme –
‘Samagra Shiksha’ – has been approved by the Cabinet on
28th March, 2018 and it came into the effect from 1st April,
2018.
26. The vision of the scheme is to ensure inclusive and
equitable quality education from pre-school to senior
secondary stage in accordance with the sustainable
Development Goal (SDG) for Education. The major
objectives of the scheme are provision of quality education
and enhancing learning outcomes of students; Bridging
Social and Gender Gaps in School Education; Ensuring
equity and inclusion at all levels of school education;
Ensuring minimum standards in schooling provisions;
Promoting Vocationalisation of Education; Support States
in implementation of Right of Children to Free and
Compulsory Education (RTE) Act, 2009; and
Strengthening and Upgradation of State Councils of
Educational Research and Training (SCERTs/State
Institutes of Education (SIEs) and District Institutes of
Education and Training (DIETs) as nodal agencies for
teacher training.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
50
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
27. The Samagra Shiksha envisages the ‘school’ as a
continuum from pre-school, primary, upper primary,
secondary to senior secondary levels. This will smoothen
the transition across the various levels of school education
and aid in promoting universal access to children to
complete school education. The major interventions
across all levels of school education, under the scheme
are: (i) Universal access including infrastructure
development and retention; (ii) Gender and Equity; (iii)
Inclusive Education; (iv) Enhancement of Quality; (v)
Financial Support for Teachers Salary; (vi) Digital
Initiatives; (vii) RTE entitlements including uniforms, text
books, etc; (viii) Pre-school Education; (ix) Vocational
Education; (x) Sports and Physical Education; (xi)
Strengthening of Teacher Education and Training; (xii)
Monitoring; and (xiii) Programme Management.
28. The Budget for all the three schemes is being merged
into a single Budget provision. This will be the Central
share to be provided to the States and UTs with the
existing fund sharing pattern of 60:40 for all the States,
with the exception that the pattern will be 90:10 for NorthEastern and three Himalayan States and 100% for Union
Territories without Legislature.
29. In order to focus on improvement of educational
indicators and quality of education, part of the funds will
be allocated amongst the States and UTs based on an index
of requirements/performance. The use of funds would be
governed by approved interventions within the ceilings
decided by the empowered committee of the department
i.e., the Project Approval Board headed by Secretary,
Department of School Education & Literacy. A single
Utilisation Certificate would be required from the State
streamlining the merged Schemes. Further, it was noticed
that in the erstwhile schemes of SSA and RMSA, the
support for teacher salary was as per the State notified
salary structures which showed a wide variation.
Therefore, to maintain uniformity in central support for
teacher salary for all States/Uts and provide funds for
quality enhancement, the ceiling limits for support for
teacher salaries have been laid down under the integrated
scheme. Thus, while the teachers will continue to be
governed by the Terms and Conditions of the respective
States/Uts, the support under the Integrated Scheme would
be the same across all States and Uts in the Country. The
focus of the scheme is to support States in taking
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
51
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
initiatives to improve the learning outcomes, strengthen
teacher training institutions, enhanced capacity building of
teachers and use of digital technology for effective
outcomes. The norms for salary of teachers has been
attached and marked herewith as ANNEXURE-9.”
29. The affidavit then gave details of the funds allocated to the
States/UTs under the SSA from the year 2014-15 to 2017-18 in a tabular
chart as under:-
Status of Four year Central Releases under SSA
S.
No.
2014-15 2015-16 2016-17 2017-18
BE 28258
crore
22000
crore
22500 crore 23500
crore
RE 24380
Crore
22015.10
crore
22500 crore 23593.86
crore
(Rs. In lakh)
State Central
Releases
Central
Releases
Central
Releases
Central
Releases
1 Andaman &
Nicobar
147.21 359.46 479.14 1945.53
2 Andhra
Pradesh
154566.67 66810.81 63302.18 70431.00
3 Arunachal
Pradesh
33607.82 18179.44 19956.64 23022.07
4 Assam 97782.19 100464.64 87652.30 123584.00
5 Bihar 216336.05 251557.32 270688.45 255797.00
6 Chandigarh 3893.53 3521.81 3333.56 9265.50
7 Chhattisgarh 92705.30 62219.70 59262.77 67412.85
8 Dadar &
Nagar Haveli
911.74 594.91 1068.37 5476.54
9 Daman &
Diu
72.77 78.38 300.00 1038.57
10 Delhi 6223.74 7293.80 8306.20 10976.90
11 Goa 1310.39 813.58 869.11 862.60
12 Gujarat 78476.49 61563.84 77740.52 65046.00
13 Haryana 42110.65 34501.21 32000.88 36355.00
14 HP 12547.30 12139.13 12825.46 30874.00
15 J & K 51276.52 129980.54 107250.05 153797.98
16 Jharkhand 75775.18 55863.31 50945.73 58984.54
17 Karnataka 66213.52 41759.34 54495.51 54882.00
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
52
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
18 Kerala 21844.02 12858.86 11316.74 13680.00
19 Lakshadweep 58.83 139.55 239.87 406.52
20 Madhya
Pradesh
149094.92 160197.86 154455.08 173814.00
21 Maharashtra 58288.54 41225.28 60369.65 64232.00
22 Manipur 21465.81 18355.46 4405.31 18377.00
23 Meghalaya 20404.52 16627.04 20067.01 33579.51
24 Mizoram 14739.70 9437.51 10934.31 12000.34
25 Nagaland 20568.74 8739.53 10725.35 11717.00
26 Puducherry 100.00 583.14 304.68 622.73
27 Punjab 36215.98 30003.22 30002.69 31665.00
28 Rajasthan 248041.55 193462.08 182578.48 198973.00
29 Sikkim 4526.78 4054.36 3479.24 5684.35
30 Telangana 81406.78 21776.01 41776.09 44244.72
31 Tamil Nadu 135819.79 82111.73 82111.30 86644.00
32 Tripura 19800.14 16956.75 19190.95 20220.38
33 UP 449867.53 505434.32 505433.98 424980.68
34 Uttarakhand 22880.57 22588.40 25268.98 62499.00
35 West Bengal 97240.30 84679.41 82185.33 89657.00
Central Releases
Total
2403016.41 2159013.36 2165744.89 2349361.32
30. The affidavit then considered the financial implications if the
directions issued by the High Court in the present case were to be
implemented in all States/UTs. It was stated:-
“31. That consequent to the interim order of this Hon’ble Court
dated 27th March, 2018 in the present Petition, the Department
of School Education & Literacy, Ministry of Human Resource
Development, Government of India has attempted to estimate
the financial implication of the impugned judgment across the
States. The department has collected information from all 36
States and UTs regarding number of teachers sanctioned under
the erstwhile schemes of Sarva Shiksha Abhiyan (SSA),
Rashtriya Madhyamik Shiksha Abhiyan (RMSA) and number of
teachers available under the State cadres at elementary and
secondary level. The information was collected disaggregated
for Permanent Teachers, Contractual Teachers and Teachers
appointed by Local Bodies under SSA, RMSA and State Cadre.
Information on average monthly salary for each category of
teachers was also collected.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
32. That the Financial implication of the impugned judgment has
been estimated based on the number of teachers reported by
States for the year 2017-18 under the above mentioned three
categories and their average monthly salary. In case the Local
Body appointed teachers/Contractual Teachers are given salary
at par with the regular teachers of State cadre, it is estimated that
financial implication will be a minimum of Rs.Thirty Six
Thousand Nine Hundred Ninety Eight Crores (Rs.36998 crores)
per year. This estimation does not include perks and other
benefits which are applicable as per the extant rules of the
respective States/UTs, which will further add to the cost. A true
typed copy of the Estimation sheet is annexed and marked
herewith as ANNEXURE-11”
Annexure 11 to the affidavit was as under:-
S.
No.
State Tentative requirement of
additional Salary funding
1 Andaman & Nicobar 4.87
2 Andhra Pradesh 57.82
3 Arunachal Pradesh 183.16
4 Assam 316.94
5 Bihar 10460.70
6 Chandigarh 17.83
7 Chhattisgarh 5867.79
8 D & N Haveli 19.76
9 Daman & Diu 4.75
10 Delhi 56.66
11 Goa 7.82
12 Gujarat .78
13 Haryana 267.77
14 HP 463.56
15 Jammu & Kashmir 117.83
16 Jharkhand 3861.98
17 Karnataka 0
18 Kerala 31.54
19 Lakshadweep 2.34
20 Madhya Pradesh 2971.13
21 Maharashtra 157.49
22 Manipur NA
23 Meghalaya 288.09
24 Mizoram 102.64
25 Nagaland 90.03
26 Odisha 429.19
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
54
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
27 Puducherry .98
28 Punjab 147.04
29 Rajasthan 0
30 Sikkim 131.68
31 Tamil Nadu 0
32 Telangana 0
33 Tripura 103.31
34 Uttar Pradesh 8448.78
35 Uttarakhand 67.74
36 West Bengal 2316
Total Fund required 36998.00
31. When the matters were taken up for hearing, the submissions for
the State Government were made by Shri Dinesh Dwivedi, Shri Rakesh
Dwivedi and Shri Shyam Divan, learned Senior Advocates.
A) Shri Dinesh Dwivedi, learned Senior Advocate submitted that the
teachers appointed before 2006 and the Niyojit Teachers appointed in terms
of 2006 Rules stood on a different footing and the distinction made by the
State Government on that basis was quite natural and rational. It was the
decision of the State Government not to make any further appointments in
the category of State Government Teachers and as such, those appointed
before 2006 were part of a dying or vanishing cadre. The reliance on pay-
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
55
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
scales of such dying or vanishing cadre and to apply them to more than
four lakh teachers appointed in terms of 2006 Rules would not only be an
incorrect and imperfect idea but would also entail tremendous economic
burden on the State. In such matters, the economic capacity has always
been considered by this Court to be a relevant circumstance. In his
submission, the distinction between those appointed prior to 2006 forming
a dying cadre and those appointed in terms of 2006 Rules, who were
appointed at local or block levels, was a valid classification. He relied
upon judgments of this Court in i) Tarsem Lal Gautam and anotherr. vs.
State Bank of Patiala and others5
, ii) V. Markendeya and others vs. State
of Andhra Pradesh and others.6
, iii) Dharwad Distt. P.W.D. Literate Daily
Wage Employees Association and others vs. State of Karnataka and
others7
, iv) Secretary, Finance Department and others vs. West Bengal
Registration Service Association and others8
, v) State of U.P. and others vs.
Ministerial Karamchari Sangh9
, vi) State of Haryana and another vs.
Haryana Civil Secretariat Personal Staff Association10 and vii) S.C.
Chandra and others vs. State of Jharkhand and others11
.
5 (1989) 1 SCC 182
6 (1989) 3 SCC 191
7 (1990) 2 SCC 396
8 1993 Supp (1) SCC 153
9 (1998) 1 SCC 422
10 (2002) 6 SCC 72
11 (2007) 8 SCC 279
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
56
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
B) Shri Rakesh Dwivedi, learned Senior Advocate submitted that with
the insertion of Article 21A in the Constitution and Right to Free and
Compulsory Education of Children being a Fundamental Right, the State
was required to spread educational opportunities and establish schools in
remotest areas. The State had never been averse to granting pay-scales
which could be more remunerative but initially the emphasis had to be on
spread of education within the constraints of its resources. He submitted
that as a part of the Constitutional obligation of providing free and
compulsory education, the State has set up 21261 new primary schools,
upgraded 19617 primary schools to middle school level and also upgraded
3129 middle schools to secondary or senior secondary level and that the
State has presently been spending 20% of its budget on education. Since
the first and foremost objective was to achieve spread of education, with
the passage of time, the State has consciously been improving the
emoluments which were initially granted to Niyojit Teachers. He further
submitted that in terms of provisions of the Act it is the responsibility of the
State to spread education in every neighbourhood and in every nook and
corner of the State. He submitted that the policy of roll out of
universalisation and spread of education was carefully crafted keeping in
mind the capacity of the State. First task having been achieved, the State is
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
now gearing up for improving the quality of education and in that pursuit
the State would certainly make the service conditions more remunerative to
attract better talent and render its constitutional obligation with greater
emphasis, but to compare the present scales with that of a dying or
vanishing cadre was completely unjustified. He relied upon decisions of
this Court in i) Official Liquidator vs. Dayanand and others12, ii) State of
Punjab and another vs. Surjit Singh and others13, iii) Steel Authority of
India Limited and others vs. Dibyendu Bhattacharya14, iv) Gopal Chawala
and others vs. State of Madhya Pradesh and others15 and v) M.M.L.
Aurora and others vs. Union of India and others16
.
Shri Rakesh Dwivedi, learned Senior Advocate also gave a Note, the
relevant part of which was as under:-
“After change of government in Bihar in November 2005, it was
found that 12% (23,15,362) children between the ages of 6-14
years were out of school. Due to the pro-active stance of the
State of Bihar and implementation of the Right to Education Act
and the mandate of 73rd and 74th Amendments read with 11th and
12th Schedule, thisstands reduced to less than 1% (2,01,806)
children today.
In order to rectify this and extend the reach of education (both
rural and urban) within its meagre resources, State of Bihar took
a policy decision and resolved to recruit new teachers through
its Panchayati Raj Institutions. New Rules were enacted and all
recruitments to the post of teachers at all levels of school
12 (2008) 10 SCC 1
13 (2009) 9 SCC 514
14 (2011) 11 SCC 122
15 (2014) 13 SCC 792
16 1995 Supp (1) SCC 279
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
education were made through this mode only. Old method of
recruitment was abolished and the cadre of existing Assistant
Teachers became a Dying Cadre, as per chart below:
School Regular
Teachers
in 2006
Regular Teachers (at present)
Elementary 1,04,259 57293
By its order dated 13.10.2011 in
a Contempt Petition, Bihar was
compelled to appoint 34,540
Assistant Teachers on the basis
of a merit list prepared by this
Hon’ble Court (reported as 2014
(11) SCC 405.
32,327 were appointed and
dispute was raised in respect of
2213. 6170 out of them have
retired and 26157 still remain in
service.
(31136+26157 = 57293)
Secondary 18458 7800
After Right to Education Act, 2009, Union Govt. declared Sarva
Shiksha Abhiyan as the main instrument to implement the
provisions of the Right of Children to Free & Compulsory
Education Act, 2009 and consequently, the same was renamed as
SSA-RTE. Niyojit Teachers (respondents) are governed by new
Rules framed under the 73rd and 74th Constitution Amendment.
RTE provides for sharing of resources between Centre and
States for implementation of the Act.
Population of the State of Bihar is 10.41 crores. After 2005, it
has opened 21261 new Primary Schools and Upgraded 19617
Primary Schools to Middle School under Sarva Shiksha
Abhiyan. 3129 Middle Schools were upgraded to Secondary or
Senior Secondary School, which on date is as follows:
Primary Schools 42614
Middle Schools 29149
Secondary/Senior Secondary 5615
Impugned judgment has treated the matter as a simple service
dispute. It has failed to appreciate the larger objective sought to
be achieved, financial capacity of the State, financial impact on
the Union of India and the State of Bihar, balancing competing
interests of the regular and niyojit teachers, its financial
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
ramification for other States in the implementation of Right to
Education Act and Sarva Shiksha Abhiyan, its implication for all
the other employees either working on contract or under
different Schemes of the Center or the State and such like social
objectives.”
C) Shri Shyam Divan, learned Senior Advocate submitted that the
concept of “equal pay for equal work” was alien to this case and the case
involved complex policy issues. He submitted that the matter must be
considered from the standpoint of the approach adopted by the State
Government and all the constitutional options that were open to the State.
On one hand it was the goal set out under Article 21A which was sought to
be effectuated by the spread the education and on the other hand, the idea
was devolution of powers to Panchayats in terms of Parts IX and IXA of
the Constitution. The peculiar situation in Bihar was that at least 12% of
the children were not being educated at all. This was essentially because of
inadequate number of schools and inadequate number of teachers. This
was sought to be remedied by appointment of one lakh Shiksha Mitras
initially to cater to rural areas. The challenge to bring those 12% children
who were outside the schools into the stream of education itself required
tremendous efforts and consequent constraints on budgetary allocations. It
is in this background that the attempts on the part of the State must be seen.
The State not only absorbed those Shiksha Mitras but also recruited more
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
than 3.50 lakh Niyojit Teachers. It was his submission that the attempts
and advances so made by the State could neither be called exploitative nor
was dignity of any individual teacher compromised in any manner. The
developments since 2006 are indicative that the State has substantially been
improving the pay-scales and emoluments available to the Niyojit Teachers.
He further submitted that the changes in Education System brought about
in the State of Bihar post 2006 and the substantial spread in education had
also improved enrolment of girl students and helped achieve reduction in
Total Fertility Rate. He submitted a Note as under:-
“1. Improvement in Girls Enrolment & Education
The enrolments of girls increased significantly from 57.75
Lac (43.47% of total enrolment) in 2005-06 to 101.37 Lac
(50.69% of total enrolment) in 2016-17 in elementary classes (1-
VIII) of Government schools. Similarly, enrolments of girls
considerably increase from 4.24 Lac in 2006-07 to 14.41 Lac in
2016-17 in secondary classes (IX-X) of government schools.
The details are as under:-
Elementary Classes (I to VIII)
Year Total
Enrolment
Girls Enrolment % Increase
2005-06 13282932 5775325 43.47%
2016-17 19995608 10137266 50.69%
Secondary Classes (IX-X)
2006-07 1158904 424790 36.65%
2016-17 2865460 1441176 50.29%
The result of 10th and 12th Board also support the arguments and
the status of passed out girls from 2006 to 2017 of 10th and 12th
Board is as follows:-
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Year 10th board 12th board
Total
Appeared
Student
Girls
Appeared
% App. Total
Appeared
Student
Girls
App.
% App.
2005 560376 186613 33.30% 314802 99238 31.52%
2006 599104 207705 34.67% 339604 110579 32.56%
2007 688508 255463 37.10% 460609 170117 36.93%
2008 769244 294514 38.29% 508332 194456 38.25%
2009 901965 362506 40.19% 583209 234116 40.14%
2010 974393 403226 41.38% 607718 246830 40.62%
2011 931332 399328 42.88% 702069 283384 40.36%
2012 1262026 565228 44.79% 812315 328391 40.43%
2013 1364023 604247 44.30% 820590 323514 39.42%
2014 1338268 610388 45.61% 996954 414533 41.58%
2015 1424423 653307 45.86% 1219315 480491 39.41%
2016 1577840 725169 45.96% 1152826 484110 41.99%
2017 1763471 866283 49.12% 1257342 556084 44.23%
2. Reduction in Total Fertility Rate (TFR)
As per Sample Registration System (Registrar General of
India), the Total Fertility Rate (TFR) of Bihar has been reduced
significantly from 4.3 in 2005 to 3.3 in 2016. This is directly
related to educational standard of girls, who are potential
mother. This can be seen from the report of sample Registration
System (SRS) for the year 2016 for the State of Bihar (copy
enclosed as Annexure A) and report of NITI Aayog (copy
enclosed as Annexure-B) which is as follows:
Education Level Total Fertility Rate (TFR)
Illiterate 4.2
Without formal education 3.9
Below Primary 3.9
Primary 3.3
Middle 3.0
Class-X 2.7
Class-XII 2.2
Graduate & above 2.1
State Average 3.3
National Average 2.3
Source: - Sample Registration System (SRS) published
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Annually (Registrar General of India)
3. Breakup of Out of School Children (6-14 years)
Out of School Children (6-14 years)
Year Total Girls SC
2005-06 2315362 1128110 588491
2017-18 201806 94974 55297
Following chart was also placed on record indicating Literacy Rate in
State of Bihar in last seven decades:-
Year Total Male Female
India Bihar India Bihar India Bihar
1951 18.33 13.49 27.16 22.68 8.66 4.22
1961 28.30 21.95 40.40 35.85 15.35 8.11
1971 34.45 23.17 46.96 35.86 21.97 9.86
1981 43.57 32.32 56.38 47.11 29.76 16.61
1991 52.21 37.49 64.13 51.37 39.29 21.99
2001 64.83 47.53 75.26 60.32 53.70 33.57
2011 73.04 61.80 80.14 71.20 64.60 51.50
It is evident from above table that the decadal growth in female
literacy in Bihar between 2001 and 2011 was 18%, which was
highest in India. For this State Literacy Mission Authority
(Govt. of India) gave award to the Principal Secretary,
Department of Education, Govt. of Bihar in 2012.”
Shri Divan relied upon decisions of this Court in Bidi Supply
Company vs. The Union of India and others17
, The State of Gujarat and
another vs. Shri Ambica Mills Limited, Ahmedabad and another18, The
Superintendent and Remembrancer of Legal Affairs, West Bengal vs.
17 1956 SCR 267
18 (1974) 4 SCC 656
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Girish Kumar Navalakha and others19, H.H. Shri Swamiji of Shri Amar
Mutt and others vs. Commissioner, Hindu Religious and Charitable
Endowments Department and others20, Col. A.S. Iyer and others vs. V.
Balasubramanyam and others21, Javed Niaz Beg and another vs. Union of
India and another22, Malpe Vishwanath Acharya and others vs. State of
Maharashtra and another23, Javed and others vs. State of Haryana and
others24, State of Maharashtra and others vs. Jalgaon Municipal Council
and others25, Sooraram Pratap Reddy and others vs. District Collector,
Ranga Reddy District and others26
and Shivashakti Sugars Limited vs.
Shree Renuka Sugar Limited and others27
.
32. Responding to the observations of the High Court in the Judgment
under appeal and queries raised by this Court during the course of hearing
whether the emoluments received by Niyojit Teachers were lesser than the
salaries of non-teaching staff in schools, following details were furnished
by the State in a tabular chart.
“(1) What are the salaries of non-teaching staff in schools?
19 (1975) 4 SCC 754
20 (1979) 4 SCC 642
21 (1980) 1 SCC 634
22 1980 Supp SCC 155
23 (1998) 2 SCC 1
24 (2003) 8 SCC 369
25 (2003) 9 SCC 731
26 (2008) 9 SCC 552
27 (2017) 7 SCC 729
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
There are posts of clerk and peon only under non-teaching
staff category in secondary/senior secondary schools. There are
no posts of non-teaching staff in Primary Schools (Class I-V)
and Middle Schools (Class I-VIII).
Comparison of salary of Peon, Clerk and Niyojit Teachers
A. On initial appointment
(Amount in Rs.)
Descri
ption
Peon
(Worki
ng
under
State
Govt.
Clerk
(Workin
g under
State
Govt.)
Primary
Niyojit
Teachers
(Trained)
Primary
Niyojit
Teachers
(Graduate
Trained)
Secondary
Niyojit
Teachers
(Trained)
Senior
Secondary
(10+2)
Niyojit
Teachers
(Trained)
Basic 18000 19900 13370 13370 13370 13370
D.A. @
7%
1260 1393 936 936 936 936
HRA
@ 4%
720 796 535 535 535 535
Medica
l
1000 1000 1000 1000 1000 1000
Gross
salary
20980 23089 15841 15841 15841 15841
Note: No Grade Pay for Teacher for first two years of their
Services.
B. After completion of two years of service
Descri
ption
Peon
(Workin
g under
State
Govt.
Clerk
(Working
under
State
Govt.)
Primary
Niyojit
Teachers
(Trained)
Primary
Niyojit
Teachers
(Graduate
- Trained)
Secondary
Niyojit
Teachers
(Trained)
Senior
Secondary
(10+2)
Niyojit
Teachers
(Trained)
Basic 19100 21100 19650 20740 20740 21820
D.A.
@ 7%
1337 1477 1376 1452 1452 1527
HRA
@ 4%
764 844 786 830 830 873
Medic
al
1000 1000 1000 1000 1000 1000
Gross
salary
22201 24421 22812 24022 24022 25220
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
C. After completion of two years of service with 20%
proposed enhancement of salary as per recommendation of
three persons committee constituted by the Hon’ble Supreme
Court.
Descri
ption
Peon
(Working
under
State
Govt.
Clerk
(Working
under
State
Govt.)
Primary
Niyojit
Teachers
(Trained)
Primary
Niyojit
Teachers
(Graduate
Trained)
Secondar
y Niyojit
Teachers
(Trained)
Senior
Secondary
(10+2)
Niyojit
Teachers
(Trained)
Basic 19100 21100 23610 24930 24930 26240
D.A.
@ 7%
1337 1477 1653 1745 1745 1837
HRA
@ 4%
764 844 944 997 997 1050
Medic
al
1000 1000 1000 1000 1000 1000
Gross
salary
22201 24421 27207 28672 28672 30127
33. The State also placed on record, increases in emoluments granted to
Niyojit Teachers at various stages, as under:-
Increases in Salary of Elementary Niyojit Teachers (Trained)
– At a Glance
Description Initial
fixed
Salary
per
Month
(in rs.)
Present
Gross
Salary
per
Month*
(In Rs.)
Increase
in
Amount
of Salary
(In Rs.)
%
Increase
Remarks
Recruited in
2003
Shiksha Mitra
(Trained)
1500 25564 24064 1604 Pay Scale
w.e.f.
01.07.2015 &
increment of
2.57 times in
the basic pay
w.e.f.
01.04.2017 as
per
recommendat
Recruited in
2006 –
Panchayat/
Prakhand/
Nagar
Shikshak
5000 24843 19843 397
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
(Trained) ion of 7th Pay
Recruited in Commission
2010 –
Panchayat
/Prakhand/
Nagar
Shikshak
(Trained)
7000 24134 17134 245
Recruited in
2013 –
Panchayat/
Prakhand/
Nagar
Shikshak
(Trained)
10000 22812 12812 128
*Note – Gross Salary includes Dearness Allowances (DA),
House Rent Allowances (HRA) & Medical Allowances.
After proposed enhancement of salary by 20%, as per
recommendation of three persons committee constituted by
Hon’ble Supreme Court.
Description Present
Basic
Revised
Basic **
DA
(7%)
HRA Medical Proposed
Gross
Salary
Recruited in 2003 –
Shiksha Mitra
(Trained)
22130 26590 1861 1064 1000 30515.00
Recruited in 2006 –
Panchayat/prakhand/
Nagar Shikshak
(Trained)
21480 25810 1807 1032 1000 29649
Recruited in 2010 –
panchayat/Prakhand/
Nagar Shikshak
(Trained)
20850 25050 1754 1002 1000 28806
Recruited in 2013 –
panchayat/Prakhand/
Nagar Shikshak
(Trained)
19650 23610 1653 944 1000 27207
**Note – As per recommendation of three persons committee
constituted by Hon’ble Supreme Court, those Niyojit teachers,
who pass the special examination, would be covered under the
upgraded pay structure, as per the category mentioned as against
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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their designation in the proposed pay-matrix, with an increment
of 20% in their pay of the pre-upgraded scale, which are being
paid w.e.f. 01.01.2016.”
34. Shri K.K. Venugopal, learned Attorney General for India, advanced
submissions on behalf of Union of India. It was submitted that though the
teachers appointed prior to 2006 and Niyojit Teachers were working in the
same schools and carrying on similar functions, they formed separate
cadres and came from different streams. The learned Attorney General
relied upon decisions of this Court in State of Punjab vs. Joginder Singh28
and in Zabar Singh and others vs. the State of Haryana and others29 and
more particularly paragraphs 25, 27, 28, 29, 30, 32, 33, 35, 36, 37 and 42
of said decision. According to the learned Attorney General, if there are
two different or dissimilar groups there can be disparity. He submitted that
for employees of the State Government it was a matter of status while
Niyojit Teachers were recruited through completely different source. In his
submission for doctrine of “equal pay for equal work” to be invoked there
has to be wholesale identicality and if there be any distinction in matters
including mode of recruitment, the doctrine could not be made applicable.
He also relied upon decisions of this Court in Kishori Mohanlal Bakshi vs.
28 1963 Suppl. 2 SCR 169
29 (1972) 2 SCC 275
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
Union of India & Ors.30 and Randhir Singh vs. Union of India and
others31, State of Haryana and others vs. Jasmer Singh and others32, State
of U.P. and others vs. Ministerial Karamchari Sangh9, Orissa University of
Agriculture and Technology and another vs. Manoj K Mohanty33
,
Government of W. B. vs. Tarun K. Roy and others34, State of Haryana and
others vs. Charanjit Singh and Others4
and S.C. Chandra and others vs.
State of Jharkhand and others11
. It was submitted by him that the spread of
education as was sought to be achieved in terms of the mandate of the RTE
Act required the resources of the State to be utilised to the maximum and
in such executive functions and policy matters the Court ought not to
interfere. He relied upon decision of this Court in Indian Drugs &
Pharmaceuticals Limited Vs. Workmen, Indian Drugs & Pharmaceuticals
Limited35 and also invited attention to paragraphs 23 onwards from the
affidavit of the Union of India as well as the estimation of additional
financial burden as quoted hereinabove. It was submitted that the direction
passed by the High Court would result in complete budgetary mismatch
and tremendous burden on the State.
30 AIR 1962 SC 1139
31 (1982) 1 SCC 618
32 (1996) 11 SCC 77
33 (2003) 5 SCC 188
34 (2004) 1 SCC 347
35 (2007) 1 SCC 408
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
35. In response to certain questions raised by the Court during the
course of hearing, the learned Attorney General submitted that education
being a concurrent list topic, the recruitment and other service conditions
of teachers including the matters concerning salary and pay fixation were
within the domain of the concerned State Government; that the provisions
of the Act did not prescribe the percentage share of grant-in-aid by Central
Government and that there was no obligation on part of the Central
Government to provide 60% of the State’s education budget or estimates;
that no funds were sought by the State of Bihar to address the issues of
disparity in salary of teachers and that State of Bihar was getting second
highest funds under ‘Sarva Shiksha Abhiyan’. With respect to applicability
of Rule 20(3) of 2010 Rules, the learned Attorney General submitted that
said Rule was applicable only to Union Territories without Legislatures,
Kendriya Vidyalayas, Navodaya Vidyalayas and the States and Union
Territories with Legislatures were expected to have their own Rules and
State of Bihar had published its own set of Rules in 2011.
36. The submissions on behalf of Niyojit Teachers and their
organizations who appeared as respondents and intervenors were led by
Mr. Kapil Sibal, learned Senior Advocate on behalf of Bihar Rajya
Prarambhik Shikshak Sangh. The submissions of the other learned counsel
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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who followed him are dealt with in the order that they appeared and
argued. It was submitted by Mr. Sibal:-
(i) Niyojit Teachers were working in same schools, the management
and control of which, was taken over by the State. The Niyojit
Teachers were imparting education in same schools and discharging
same functions as were being discharged by the Government
Teachers.
(ii) RTE Act contemplated schools owned by the appropriate
Government and those which are owned by the local authorities. In
the present case all the schools in question were owned by the State.
(iii) Under Section 6 of the RTE Act the appropriate Government was
obliged to carry out the provisions of the Act within a period of three
years.
(iv) Section 7 of the RTE Act put the responsibility on the Central
Government as well as the State Government concurrently for
carrying out the provisions of the Act.
(v) The Union Government had actually collected Education Cess
and as such the budgetary constraints could never be an argument to
defeat the rights of Niyojit Teachers.
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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(vi) As a matter of law, financial difficulty would be no ground to
oppose the rightful demands of Niyojit Teachers for equal pay for
equal work which has always been held to be a constitutional
obligation.
(vii) In fact, the obligation to raise money was on the State and it
cannot be heard to raise a plea of budgetary constraint.
(viii) Rule 7 of 2010 Rules obliged the Central Government to
prepare annual estimates of capital and recurring expenditure for
carrying out the provisions of the Act for a period of 5 years. Raising
of resources was integral to the functioning of and carrying out the
obligations under the RTE Act.
He distinguished the decisions cited by the learned counsel appearing
for State of Bihar and relied upon decisions of this Court in Dhirendra
Chamoli and Another vs. State of U.P36., Bhagwan Dass and others vs.
State of Haryana and others37, Jaipal and others. vs. State of Haryana and
others3
, State of Punjab & others. vs. Jagjit Singh and others.2
. He
submitted that education has always been at the core and of immense
importance for advancement of a society and the State having failed to
discharge its duty in ensuring non-discriminatory treatment to its teachers,
36 (1986) 1 SCC 637
37 (1987) 4 SCC 634
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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the Court may set to malaise right. He submitted that the drift of the
submissions advanced by the State as well as the Union of India would
mean that there ought not to be cadre of quality teachers.
37. Mr. C.A. Sundaram, learned Senior Advocate appeared for certain
associations of teachers and submitted that it was not open to the State to
plead and argue financial burden or difficulty in carrying out responsibility
enjoined by the provisions of the constitution and particularly Article 21A
of the Constitution. It was his submission that effectively Niyojit Teachers
were made to carry the burden and pay for the constitutional goals which
the States was obliged to achieve. He emphasized that nature of
responsibility, qualifications, experience and duties discharged by Niyojit
Teachers were at par with the Government Teachers that both the
categories were discharging their functions and imparting education in
same schools and as such there could be no distinction. He relied upon
decisions of this Court in Ashoka Kumar Thakur vs. Union of India and
others.38, Society for Unaided Private Schools of Rajasthan vs. Union of
India and Another39, Karnataka State Private College Stop-Gap Lecturers
Association vs. State of Karnataka and Others40, Baseeruddin M. Madari
38 (2008) 6 SCC 1
39 (2012) 6 SCC 1
40 (1992) 2 SCC 29
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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and others. vs. State of Karnataka and Others41, State of Uttar Pradesh
and another vs. Anand Kumar Yadav and others42
38. Mr. Vijay Hansaria, learned Advocate submitted that Article 21A
was inserted by the 86th Constitutional Amendment Act on 12th December,
2002 but came into force on 01.04.2010. After enactment of the RTE Act
on 26.08.2009, two notifications were issued on 16.02.2010. Under the
first notification, the provisions of Article 21A were directed to come into
force on 01.04.2010 while under the second notification the provisions of
the RTE Act were directed to come into force on 01.04.2010. These
developments indicate that though the Constitutional Amendment Act was
passed in the year 2002, period of almost 8 years was given to the States to
gear themselves up and cope up with the obligations which were to be
discharged in terms of Article 21A read with the provisions of RTE Act.
He emphasised that the idea of free and compulsory education first
germinated in the decision in Unni Krishnan, J.P. and others vs. State of
Andhra Pradesh and others43
, which was later recommended in 165th Law
Commission Report. The States thus had enough time at their disposal to
equip themselves adequately to cope up with the obligations as aforesaid.
41 1995 Supp (4) SCC 111
42 (2018) 13 SCC 560
43(1993) 1 SCC 645
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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He further submitted that under various enactments namely National Food
Security Act, 2013, Juvenile Justice Act, 2015, Mahatma Gandhi National
Rural Employment Guarantee Act, 2005. Child and Adolescent Labour
(Prevention and Regulation) Act, 1986, separate funds are constituted and
if budgetary constraints is the reason, a mandamus on the lines that was
issued by this Court in M.C. Mehta vs. State of T.N. and others44
, could be
issued. He also invited attention of the Court to the report of the Controller
and Auditor General which indicated that substantial sums were collected
as primary education cess and higher and secondary education cess. The
information in that behalf available in para 2.3.3 of the Report of CAG for
the year 2016-17 was as under:
“2.3.3 Secondary and Higher Education Cess
The Secondary and Higher Education Cess (SHEC) was
introduced in the Finance Act, 2007, to fulfil the commitment of
Secondary and Higher Education.
Scrutiny of the Union Finance Accounts for the period 2006-07
to 2016-17 revealed that a total collection of SHEC of ₹ 83,497
core has been made and is being credited in the CFI without
creating any reserve fund in Public Account.
Unlike the creation of Prarambhik Siksha Kosh in the case of
primary/elementary education cess, for the SHEC neither a Fund
was designated to deposit the proceeds of SHEC nor were
schemes identified on which the cess proceeds were to be spent.
Consequently, the commitment of furthering Secondary and
Higher Education Cess as envisaged in the Finance Act was not
transparently ascertainable.
44(1996) 6 SCC 756 para 29
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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The matter of non-creation of Fund and non-dentification of
schemes was raised in previous years’ Report but the trend is
persistent.”
He also relied upon decision of this Court in Secretary, State of
Karnataka and others vs. Umadevi (3) and others45 (para 55).
39. Mr. Salman Khurshid, learned Senior Advocate submitted that the
content of Right under Article 21A of the Constitution would be
meaningless unless the role of a teacher was not considered in proper
perspective. For a child to be given good quality education, the teachers
must be well qualified and ensured decent wages. In his submission that
would be the true import of Rule 20(3) of 2010 Rules and it was the
responsibility of a State to garner resources. He relied upon extracts from a
book46 and particularly paragraphs 5 and 6 captioned “Public Expenditure
and Education Policy”. The relevant extract which was relied upon was:-
“While the development of low-cost schooling facilities has
helped to expand the reach of elementary education in spite of
widespread budgetary crises at the state level, gaping
inadequacies remain (both in quantitative and qualitative terms)
in the schooling infrastructure, as the findings mentioned in the
preceding section indicate. Further, the trend towards increasing
reliance on second-track education facilities has some troubling
features. At least three serious issues arise in this context,
related respectively to quality, equity and sustainability.
The quality issue is concerned with the fact that teacher
qualifications and infrastructural facilities are often poorer in
45 (2006) 4 SCC 1
46 [“India – Development and Participation” by Jean Dreze and Amartya Sen]
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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second-track schooling facilities than in regular schools. In
some cases there are also compensating features, especially
greater accountability (e.g. due to better work incentives or
closer community involvement), but the question remains
whether these facilities can really be expected to deliver
education of acceptable quality.
The equity issue follows from that concern: if ‘second-track’
means ‘second-rate’, the expansion of alternative schooling
facilities involves a real danger of diluting the right of
underprivileged children to quality education. While these
facilities might help them in the short term, this might be done at
the risk of perpetuating the deep inequities of India’s schooling
system, whereby children of different social backgrounds have
vastly different educational opportunities (not only in terms of
the divide between government and private schools but now also
within the framework of government schools.”
40. Ms. Vibha Datta Makhija, learned Senior Advocate placed
comparative chart of salary and emoluments drawn by Niyojit Teachers as
against Government Teachers at various levels. She submitted that the
introduction of Article 21A in the Constitution was not an exercise done
overnight but considerable thought process had gone into, in making such
Right a reality. Even after the introduction of Article 21A, substantial
period of eight years was afforded to the States to equip themselves on
every front. In her submission, Sections 23 and 25 of the Act ensure
qualitative and quantitative aspects and if both the aspects are taken
together it would be inevitable that the teachers must be in adequate
numbers and also must have decent wages. According to her, there were
three sets of guarantees available to Niyojit Teachers. First, under Article
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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41 of the Constitution, the second under Article 14 of the Constitution and
the third under the provisions of the RTE Act, on the basis of which the
Niyojit Teachers could rightfully claim parity in salary and emoluments.
She relied upon the Report of the Finance Commission47, the relevant
portion being:-
“12.19… ….The MHRD estimations have assumed a
minimum salary of Rs.5000 per month for primary
teachers and Rs.7000 per month for upper primary
teachers. There is no uniform pattern in the manner of
appointment and pay scales of SSA teachers across states.
In some states such teachers are appointed by the State
Government on regular pay scales, whereas in many
others, such teachers are appointed by local governments
on local body pay scales or on contract. The
implementation of the Sixth Central Pay Commission
(CPC) would, in any event, create an upward pressure on
teachers’ salaries, whatever the mode of appointment. We
have, therefore, assumed an increase of 30 per cent over
the base year, in view of the fact that the bulk of these
teachers are located in rural areas. We have also provided
for an annual increase of 6% on these salaries, in
conformity with our assumption of the post-CPC yearly
increase in salaries of government servants. Similarly,
while SSA does not provide for any annual increase in the
quantum of funds on account of inflation, we have
provided for an annual increase of 5 per cent across all
non-salary components of the scheme.
12.20 The SSA began with a matching fund
requirement of 15 per cent from states in 2001-02. Till
2006-07, the matching fund requirement was 25 per cent.
It has increased progressively to 35 per cent in 2007-08
and 2008-09 and to 40 per cent in 2009-10. It is expected
to go up to 45 per cent in 2010-11 and to 50 per cent in
2011-12, the terminal year of the Eleventh Five Year Plan.
We assume that the same ratio will continue in the
4713th Finance Commission, for 2010-15 published in 2009
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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remaining years of the award period. Various states have
expressed difficulties in providing this matching share,
especially since the size of their annual plans has
increased over the years.
12.21 We are of the view that, in the given
circumstances augmenting the resources of the states to
cater to this need will be the most appropriate way to
provide grants for the elementary education sector. This
will also provide some fiscal space to the states to meet a
part of the additional resources required to implement the
RTE Act. We have also considered the fact that given the
resource scarcity faced by the states as a result of the
economic slowdown, several states have not been able to
provide for their share of 40 per cent in 2009-10. In fact,
we estimate that due to the adverse fallout of the economic
downturn, the states may not be able to provide more than
35 per cent from their resources over the current year and
the next year. Hence, we recommend for the award
period, a grant of 15 per cent of the estimated SSA
expenditure of each state. This amount will cover the
difference between the targeted state share of 50 per cent
by the terminal year of the Eleventh Plan and the
contribution required to be made in 2008-09, i.e. 35 per
cent of the individual states’ SSA share.
12.22 The north-eastern states are required to
provide only 10 per cent from their resources as their share
for SSA. However, as the MHRD has pointed out in a
supplementary memorandum, several of these states have
not been able to provide even this amount, leading to
slowdown in implementation of SSA. In order to alleviate
the fiscal constraints of these states we recommend a grant
amounting to the difference between the average amount
contributed by each state in the years 2007-08 and 2008-
09 and the amount they need to contribute (on the basis of
a 10 per cent share) in each of the five years of the award
period, subject to a minimum of Rs.5 crore per year. The
requirement of the north-eastern states, calculated on this
basis, is Rs.367 crore over a period of five years.
12.23 The recommended grant for elementary
education for all these states, in aggregate, works out to
Rs.24,068 crore. The state-wise and year wise allocations
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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are given in Annex 12.1. In order to ensure that these
grants do not substitute for the current expenditure of
states, we stipulate that the expenditure (plan + non plan)
under elementary education, i.e. major head 2202, submajor head-01, exclusive of the grants recommended
herein, should grow by at least 8 per cent, the assumed
growth rate in our projections of the non-salary component
of the social sector during the award period, annually,
during 2010-15.”
Ms. Makhija then submitted that there had been three categories of
teachers in the State, first category being that of regular teachers who are
getting salary and emoluments at government pay scale. The second
category was that of Shiksha Mitras who were inducted under Central
Schemes since 2002. The third category of teachers are those who were
inducted in terms of 2006 Rules. The second category as stated above,
now stands merged in the last category and are collectively known as
Niyojit Teachers. She relied upon decisions in State of Gujarat and
Another vs. Raman Lal Keshav Lal Soni and Others48, State of U.P. and
Others vs. Chandra Prakash Pandey and Others49, Shayara Bano vs.
Union of India and Others50, E. P Royappa vs. State of Tamil Nadu and
Another51
.
48 (1983) 2 SCC 33
49 (2001) 4 SCC 78 para 10
50 (2017) 9 SCC 1
51 (1974) 4 SCC 3 para 85
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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Ms. Makhija also submitted that the distinction drawn by the learned
Attorney General was artificial and without any nexus to the object. She
further submitted that the State cannot let disparity continue and
perpetuate inequality.
41. Mr. P. Chidambaram, learned Senior Advocate stressed on the
content of the right under Article 21A and submitted that the emphasis
must be on good quality education. He submitted that under Section 26 of
the RTE Act, the vacancy position of teachers could not be more than 10%
and as such the teachers had to be appointed in adequate numbers to
match the Pupil-Teacher ratio as prescribed and it would not be proper on
part of the State to put up an excuse of budgetary constraints. He further
stated that under Section 28 of the Act, a teacher would not be allowed to
engage himself in private teaching activity. He relied upon State of
Punjab and Others vs. Jagjit Singh and Others2
, Hussainara Khatoon and
Others (IV) vs. Home Secretary, State of Bihar, Patna52, Khatri and
Others (II) vs. State of Bihar and Others53, Ashoka Kumar Thakur vs.
Union of India and Others38 and Brij Mohan Lal vs. Union of India and
52 (1980) 1 SCC 98 para 10
53 (1981) 1 SCC 627 para 5
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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Others54
. Lastly, he urged that the right under Article 21A ought to be
made meaningful.
42. Dr. A. M. Singhvi, learned Senior Advocate appeared on behalf of
Bihar Madhyamik Shikshan Sangh representing those teaching classes IX
onwards. According to him, the total liability in terms of the decision
rendered by the High Court in the present matter was in the range or
Rs.9283.69 Crores out of which the share allocable to the Central
Government would be Rs.4599.07 crores and that of the State
Government would be Rs.4684.63 crores. In a Note presented by him, the
aspect that Niyojit Teachers were performing same/similar duties and
responsibilities was highlighted as under:-
“i) It is admitted fact that these Niyojit teachers are
discharging same/similar duty and responsibility as
discharged by the Regular teachers of Pre-2006 Rules.
The impugned order has dealt it in detail and returned
important finding on this issue in favour of these teachers
at more than one place.
ii) These Niyojit teachers are imparting education to the
same students, with same syllabus in the same school apart
form doing the same evaluation work in secondary and +2
examination conducted by the Bihar School Examination
Board. At the time of evaluation, they are treated at par
with and paid the same remuneration like the teachers
appointed prior to 2006 Rules.
iii) Moreover, these Niyojit teachers are also engaged by
the State like Regular teachers in duties like duty for
preparation of census (economic survey), Election duty
54 (2012) 6 SCC 502 paras 137 to 144
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from preparation of voter list till counting of votes.
Interestingly, while informing the Election Commission
with regard to deploying these teachers on election duty,
the State treats these Niyojit teachers as Regular teachers.
iv) These teachers like regular teachers are also engaged
in imparting Special training namely ‘Diploma in
Elementary Training’ provided by National Institute of
Open Schooling (NIOS) Board, under Union of India,
which is an on-going programme, wherein in a selected
school of each district, Study Centre is opened to impart
training. In these programmes these Niyojit teachers work
as Coordinator, Assistant Co-ordinator, resource persons
and Supervisors. Importantly, sometimes, when the
minimum required qualification like
MA/M.SC/B.Ed./M.Ed. is not found in the regular teacher,
then Niyojit teachers with such qualifications are made
Co-ordinator in place of regular teachers in that Study
Centre.
v) Many of these Niyojit teachers are chosen as Master
Trainers, who are responsible for imparting training to
both category of teachers i.e. Niyojit Teachers and Regular
Teachers. Pertinently, this training is conducted/organised
by State Council of Educational Research and Training,
Government of Bihar (SCERT similar to NCERT).
vi) Furthermore, such in-service training is part of a
continuous process which includes preparation of
Syllabus, Curriculum and innovative teaching method as
well as these Niyojit teachers are also given responsibility
of writing text books for students form class I to class XII
under the command of SCERT.
vii) These Niyojit teachers are also engaged in setting of
question papers, moderating, evaluating the answer sheets
etc., at par with the regular teachers on equal
remuneration.
viii) Responsibility of Acting Principals in substantial
number of the Secondary and Higher Secondary schools
are performed by these Niyojit teachers. Kindly see list of
secondary and higher secondary schools wherein these
Niyojit teachers are working as Acting Principal, however,
receiving the salary of Niyojit teachers.”
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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It was his submission that the cases decided by this Court on the
touchstone of Article 14 of the Constitution consistently show that if
functionally the duties performed by the class seeking parity are same or
identical, unless required qualifications were higher, the equality doctrine
must apply and in such cases the source of employment would be
irrelevant. He also relied upon the statistics to show that as many as 1459
Niyojit Teachers were acting as Head Masters in Higher Secondary
Schools in the State. By way of an example, he further submitted details
from Anugrah Kanya S.S.S, Gaya in which six Government Teachers and
three non-teaching staff were on the roles while 22 Niyojit Teachers were
working in the same school. All Government Teachers and the nonteaching staff were drawing pay higher than what was paid to each of
those Niyojit Teachers.
He also submitted that with effect from 3rd July, 2012, under the
Rules framed by State of Bihar, it was obligatory for every teacher
teaching classes IX onwards to have TET qualification and all Niyojit
Teachers teaching such classes were equipped with said qualification.
Responding to the submission that the category of Government Teachers
who was taken to be a dying or finishing cadre, he submitted that no such
policy was discernible from any statutory provision. He relied upon
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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decisions of this Court in State of Gujarat and Another vs. Raman Lal
Keshav Lal Soni and Others48 and Arindam Chattopadhyay and Others vs.
State of West Bengal and Others55
.
43. Mr. C. S. Vaidyanathan, learned Senior Advocate also representing
teachers teaching classes IX onwards submitted that two issues had been
raised on behalf of the State whether there could be equality with a dying
or vanishing cadre and whether on the grounds of financial constraints the
State was justified in not affording same pay and emoluments to Niyojit
Teachers. He reiterated that both the categories of teachers were
performing same or similar functions. He relied upon an Article
“Perceptions on Getting Children to Schools – Before and After RTE
Act”56
.
44. Shri Ranjit Kumar, learned Senior Advocate appeared on behalf of
Secondary and Higher Secondary teachers teaching classes IXth onwards.
He also stressed the point that there was complete functional equality in
every respect as regards duties and responsibilities between Government
Teachers on one hand and Niyojit Teachers on the other. It was his
submission that though under 2006 Rules, Panchayats and Municipal
55 (2013) 4 SCC 152 para 5 and 13
56 By Shantha Sinha, Department of Political Science, University of Hyderabad
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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Bodies were entrusted with the task of selecting teachers, in reality the
Committees constituted for the purpose comprised of all government
officials and the State Government was in real and effective control of the
situation. He relied upon the decisions of this Court in Bihar State
Government Secondary School Teachers Association vs. Bihar Education
Service Association and others57 particularly on para 50.
45. Shri Ananda Nandan, learned Advocate appeared on behalf of
Niyojit Teachers who were appointed after 2012. It was submitted by him
that such teachers who were duly qualified and had passed TET
examination alone be considered to be entitled to parity with Government
Teachers and those who did not have the requisite qualifications and had
not passed TET examination ought not to be afforded same treatment. In
his submission that would be the true import of the idea of making quality
education available to the children in terms of the RTE Act. He also relied
upon decision of this Court in State of Uttar Pradesh and others vs. Shiv
Kumar Pathak and others58
.
46. Mr. V. Shekhar, learned Senior Advocate appeared on behalf of
some primary school teachers and Parivartankaari Teachers Maha Sangh.
He relied upon the decisions of this Court in Municipal Council, Ratlam
57 (2012) 13 SCC 33
58 (2018) 12 SCC 595
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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vs. Shri Vardichand and others59, Secretary and Mahatama Gandhi
Mission and another vs. Bhartiya Kamgar Sena and others60(paragraphs
82 to 90 and 95).
47. Mr. Prashant Bhushan, learned Advocate appearing for some of
the primary teachers submitted that those teachers having TET
qualifications, were regularly selected by local authorities and though, the
method of recruitment may be different, they were doing the same work
as was being discharged by other Government Teachers. Their
qualifications were identical and in terms of mandate of Rule 20(3) of
2010 Rules, they were entitled to pay and allowances at par with the
Government Teachers.
48. Mr. Rajiv Dhawan, learned Senior Advocate appearing for certain
secondary and primary teachers submitted that the statutory provisions
including 2006 Rules clearly showed the all-pervasive role of the State
Government which had created these artificial distinctions and categories
and the Panchayats were simply implementing what the State had decided.
In his submission the basic issues were whether there could be any
discretion unto the State in matters concerning constitutional mandate and
whether financial constraints could be taken as a valid excuse. He
59 (1980) 4 SCC 162
60 (2017) 4 SCC 449
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reiterated the submission that under Section 7 of the RTE Act there was a
concurrent financial responsibility on the State Government as well as the
Central Government. Adverting to the draft Notes which were placed
before the Cabinet on 25.06.2006, he submitted that the entire mechanics
was about financial arrangement and there was nothing such as financial
constraints upon the State. He relied upon decisions of this Court in
Mohini Jain vs. State of Karnataka and others61
, Unni Krishnan, J.P. and
others vs. State of Andhra Pradesh and others43 and State of Himachal
Pradesh vs. H.P. State Recognised & Aided Schools Managing Committees
and others62
49. Mr. Sanjay Hegde, learned Senior Advocate appearing for some of
the primary teachers submitted that as it is the income of a teacher has
always been a limited one and the attempt on part of the State was to
restrict it further. Relying on Workmen represented by Secretary vs.
Reptakos Brett. & Co. Limited and another63 it was submitted that the
teachers must be ensured living wages and that the Niyojit Teachers were
entitled to the salary and emoluments as were made available to
Government Teachers. He also relied upon decisions of this Court in
61 (1992) 3 SCC 666
62 (1995) 4 SCC 507
63 (1992) 1 SCC 290
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State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
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Municipal Council, Ratlam vs. Shri Vardichand and others59 and
Chandigarh Administration and others vs. Rajni Vali and others64
.
50. Mr. B.P. Verma, learned Senior Advocate appeared on behalf of
certain teachers seeking impleadment and relied upon the decision of this
Court in Secretary, State of Karnataka and others vs. Umadevi (3) and
others45 (para 55), while Mr. V.N. Sinha, learned Senior Advocate for some
primary and secondary teachers as well as librarians relied upon a decision
of this Court in Maneka Gandhi vs. Union of India and another65 to
submit that there ought to be reasonableness in every action of the State.
Adopting the submissions made by all the other learned counsel, it was
submitted by them that Niyojit Teachers were entitled to same salaries and
emoluments as were given to Government Teachers.
51. In rejoinder, it was submitted by Mr. Dinesh Dwivedi, learned
Senior Advocate that a conscious decision was taken not to make any
further appointments in the cadre of Government Teachers and but for onetime appointment which was done pursuant to orders passed by the High
Court and this Court, the strength of Government Teachers would have
been considerably lower. The State could as well have abolished all the
posts held by Government Teachers after giving them requisite
64 (2000) 2 SCC 42
65 (1978) 1 SCC 248
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compensation and in the process could have ensured one single cadre of
Niyojit Teachers. The attempt to compare a huge body of Niyojit Teachers
which was more than 4.50 lakhs and seek parity with a group which was a
dying or vanishing cadre was not correct. He submitted that there was no
basis to claim that the quality of education would be compromised if
Niyojit Teachers were not paid same salary as was given to Government
Teachers. The decisions of this Court in State of Punjab vs. Joginder
Singh28 and in Zabar Singh and others vs. State of Haryana and others29
,
S.C. Chandra and others vs. State of Jharkhand and others11
, State of
Haryana vs. Charanjit Singh4
and State of Haryana and another vs. Tilak
Raj and others66 were heavily relied upon by Mr. Dwivedi. It was
submitted that the decision in State of Punjab and others vs. Jagjit Singh
and others2
did not notice the earlier decisions of this Court in State of
Punjab vs. Joginder Singh28 and in Zabar Singh and others vs. State of
Haryana and others29
. It was submitted that the decision in State of Punjab
vs. Joginder Singh28 had clearly laid down that the principle of ‘equal pay
for equal work’ was not deducible from Article 14 of the Constitution.
Reliance was also placed on Section 2(n) of the RTE Act and the
expression ‘controlled by the appropriate government or a local body’ to
submit that it was sufficient indication that new kind of service could be
66 (2003) 6 SCC 123
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put in place by the appropriate government. He submitted that the Right
under Article 21A of the Constitution was child-centric and a claim could
not be based by the Niyojit Teachers on the basis of such Right to claim
parity as was sought to be done. Reliance was placed on the decisions of
this Court in All India Bank Employees’ Association vs. National Industrial
Tribunal and others67, Society for Unaided Private Schools of Rajasthan vs.
Union of India and another39
.
52. Mr. Shyam Divan, learned Senior Advocate, in rejoinder, relied
upon the judgment of Constitution Bench of this Court in Navtej Singh
Johar and others vs. Union of India through Secretary, Ministry of Law
and Justice68 and paragraphs 95, 96, 104, 110, 118 and 119 thereof. In his
submission, progressive realisation of rights would require certain amount
of balancing and adjustment. If the matter was to be considered from the
standpoint of child, the school system ought to be of such order which
helps realisation of such Right but, at the same time there ought not to be
any negative impact on the dignity of any other individual. Considering
these two ideas, if the endeavour adopted by the State was to subserve
goals set by Article 21A, the attempts in that behalf would be perfectly
constitutional as long as dignity of any other individual was not
67 (1962) 3 SCR 269 = AIR 1962 SC 171
68 (2018) 10 SCC 1
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compromised. According to him, the two competing visions which were
pressed into service in the present matter were (i) on behalf of Niyojit
Teachers which visualised perspective from the standpoint of individual
teachers which was “me first” approach, whereas, what the State was
emphasising was community right and to achieve and to subserve the
societal needs which could be categorised as “we first” approach. Both
could be valid visions but while considering which choice would be the
most appropriate one, it would require policy decisions which, by very
nature could be complex. The policy decisions on the point would be
completely linked to social issues and economy and health of the society.
These issues as well as vision in that behalf ought to be left to the State.
He further submitted that the various factual details presented by the State
would show great impact of its policies and the tremendous strides the
State had undertaken in that behalf. He relied upon decisions of this Court
in Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and
others vs. The State of Gujarat and others69(para 31), Assam Sanmilita
Mahasangha and others vs. Union of India and others70 (para 33) and
Subramanian Swamy vs. Union of India, Ministry of Law and others71
.
69 (1975) 1 SCC 11
70 (2015) 3 SCC 1
71 (2016) 7 SCC 221
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53. With the permission of the Court, Mr. Sibal, Mr. Sundaram, Mr.
Vijay Hansaria and Mr. Ranjit Kumar, learned Senior Advocates responded
to the submissions made in rejoinder. It was submitted that the very
premise that the schools were managed by local authorities was wrong;
they were taken over and owned by the State. It was submitted that the
concept of ‘equal pay for equal work’ was a fundamental doctrine though
may not strictly be a Fundamental Right. Mr. Hansaria submitted a list of
at least 40 cases where doctrine of ‘equal pay for equal work’ was adopted
without noticing the decisions of this Court in State of Punjab vs. Joginder
Singh28 and in Zabar Singh and others vs. State of Haryana and others29
.
It was also submitted that as against the funds which were made
available for various Central Schemes, about Rs.1802 crores were lying
unspent and as such the budgetary constraints could not be an argument.
By extending schools and educational facilities to every nook and corner of
the State or in every neighbourhood the State was not doing any charity but
was discharging its constitutional obligations and as such, budgetary
constraints could never be a ground.
54. Having heard the learned counsel extensively, who took us through
all the relevant material on record and placed before us various contours of
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the issues before us, the basic questions that arise for our consideration
are:-
a) Whether the Niyojit Teachers are right in their submission
that they are entitled to and were rightly granted ‘equal pay
for equal work’; and
b) Whether the State is justified in its approach and is right in
claiming that the distinction made by it was correct and
fair.
These questions, according to us, go to the root of the matter.
While answering these questions, we may also consider various facets to
the issues as presented by various counsel, including the effect of the
provisions of the RTE Act.
55. According to the learned counsel appearing for the State, the matter
has to be seen in the backdrop of what the State was confronted with
around the year 2001-2002 and what it has, over the last few years, been
able to achieve as a result of steps taken by the State including the
appointment of Niyojit Teachers and creation of a separate cadre of Niyojit
Teachers. According to the State, on one hand it had decided to let the
original cadre of Government Teachers to be a cadre without any fresh
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appointments and thus let it be a dying or vanishing cadre, while on the
other hand it had decided that substantial number of teachers be appointed
at Panchayat levels.
56. At the outset we must note that though the 86th Constitution
Amendment Act was passed in the year 2002, the Article was brought into
force on 1.4.2010 i.e. at least after eight years. It is also a matter of record
that the RTE Act which was, all the while in contemplation, was enacted in
the year 2009 and was also brought into force on 1.4.2010. The
developments in that behalf including the historical background leading to
the introduction of Article 21A and the enactment of the RTE Act were
dealt with in extenso in paragraphs 441 to 461 in the opinion of Bhandari, J
in Ashoka Kumar Thakur vs. Union of India38
. We, therefore, have to see
how the State had conducted itself and whether the steps taken by the State
were in order to discharge its obligations.
In the year 2002 itself, Scheme known as Sarva Shiksha Abhiyan
was introduced at the Central level. In terms of the Scheme, the facilities
of education and infrastructure were required to be spread through the
length and breadth of the respective States. The steps taken in that behalf,
specially in the present matter, indicate that sometime in 2002 more than
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one lakh Shiksha Mitras were appointed by the State. These Shiksha
Mitras were not part of the regular cadre of Government Teachers, were
not appointed through the regular process of selection and their services
were engaged on a fixed salary. These Shiksha Mitras, who were outside
the regular cadre of teachers, were entrusted with the job of manning
schools in the remotest corners of the State. Sometime in 2006, certain
decisions were taken by the Cabinet of Ministers, Government of Bihar.
The control in respect of appointment of teachers in all nationalized
schools and other aspects, which were hithertobefore with the State
Government, were given over to various Panchayat Raj institutions. This
was in conformity with Articles 243G read with Serial No. 17 of the
Eleventh Schedule in respect of Panchayats at the village, intermediate and
at district levels and also in terms of Article 243W read with Serial No.13
of the Twelfth Schedule in respect of Nagar Panchayats, Municipal
Councils or Municipal Corporations. The decisions taken by the Cabinet
were in accord with the constitutional mandate of enabling Panchayat Raj
Systems on one hand while on the other, the decision also raised the
number of teachers substantially so that national parameters on
student:teacher ratio could be achieved by the State. The statistics placed
on record show that about 12% children in the State who were outside the
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schools had to be brought within the stream of education. The decision
discernible from the Cabinet Notes was to achieve these objectives. After
the decision of the Cabinet, the idea was translated in an appropriate
statutory regime and new set of Rules viz. 2016 Rules were put in place. A
decision was taken that there would be no further appointments in the
cadre of existing teachers viz. Government Teachers and a completely new
cadre of teachers named Niyojit Teachers was created. The erstwhile
Shiksha Mitras were absorbed in this new cadre of Niyojit Teacher and
fresh employments were made at Panchayat/Block levels so that teachers
in sufficient numbers could be appointed. The developments indicate that
presently about four lakh such teachers have been appointed and the
statistics presented by the State, which are reflected in detail in abovenoted
paragraph 31, show the advances made by the State in that behalf. It was
submitted that the State could thus achieve substantial improvement in the
enrolment of students and the results have also seen appreciable rise in
literacy rate in the last decade in respect of the State.
57. We are thus having a situation where the decisions taken by the
State as submitted on its behalf, were guided by public interest and societal
commitment. The idea to achieve spread of education to the maximum
level was attained and in the process the State had, to a great extent, tried
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to meet with the obligations that it was required to discharge under the
provisions of Article 21A read with the RTE Act. What has however been
projected on behalf of Niyojit Teachers is that while achieving these
objectives, the State ought not to have discriminated against the Niyojit
Teachers and should have extended fair treatment to them by ensuring
‘equal pay for equal work’. The arguments on behalf of State are that the
first objective that had to be accomplished was to have the reach and
spread of education to every nook and corner of the State and to satisfy the
requirements of having schools and facilities in every neighbourhood as
contemplated by the provisions of the RTE Act; and having achieved that
objective, the State is now seeking to improve the service conditions and
emoluments of the Niyojit Teachers. What therefore emerges is whether
the actions on part of the State were justified or whether the Niyojit
Teachers are right in their submission that they are entitled to ‘equal pay
for equal work’.
58. Before we consider the rival submissions in connection with this
issue, it must be mentioned that the cadre of Government Teachers with
which parity or equality has been sought is a dying or a vanishing cadre. A
conscious decision was taken by the State not to make any appointments in
this cadre of Government Teachers and post 2006, with the exception as
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narrated hereinabove in paragraph 17, all appointments in the State have
been in terms of and under the provisions of 2006 Rules. The statistics
also show that presently there are about 57,293 elementary teachers in the
cadre of Government Teachers and 7,800 Government Teachers at the
secondary level which means there are about 66,000 government teachers
in the State as against nearly 4 lakh Niyojit Teachers in the State. It is this
group of 4 lakhs which is seeking parity with a number which is less than
1/5th and by very nature which is a dying and vanishing cadre. Out of
those 66,000 more than 31,000 were those who came to be appointed as
one-time exception. Leaving aside that issue, the fact remains that it is a
larger body of more than 4 lakhs which is seeking parity with a dying or a
vanishing cadre.
59. In order to consider the applicability of the doctrine of ‘equal pay
for equal work’, one of the fundamental aspects to be considered is nature
of duties. As was rightly submitted by Mr. Kabil Sibal and Dr. A.M.
Singhvi, learned Senior Advocates, the nature of duties performed by
Niyojit Teachers are certainly same or similar to those performed by the
Government Teachers. As a matter of fact, both the sets of teachers are
teaching in the same school and teaching same syllabus. The pointers
placed by Dr. Singhvi in his submission as well as the example given by
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him evidently show that there is no distinction or difference as regards
nature of duties performed and responsibilities discharged by the Niyojit
Teachers. Some of the Niyojit Teachers have also been acting as
Headmasters. However, the Rules in question viz. 2006 Rules clearly
indicate that the method of recruitment of Niyojit Teachers was completely
different from the one under which Government Teachers were recruited.
The Selection Committee contemplated under the provisions of 2006 Rules
comprised of officials at the Panchayat or Block levels. The selection was
also at local levels and not through Bihar Public Service Commission or
Schools Selection Board. The distinction brought out in that behalf by the
State in para 13 of its supplementary counter affidavit filed in the High
Court clearly shows the difference in mode of recruitment. It is thus clear
that the mode of recruitment and the standards of selection were different
but the nature of duties performed by the Niyojit Teachers have been
absolutely identical. Could there be a distinction between these two
streams of teachers. We may, therefore, at this stage see the development
of the doctrine of ‘equal pay for equal work’ and whether it admits of any
qualifications or exceptions.
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60. In Kishori Mohanlal Bakshi vs. Union of India72 the Income Tax
Officers were divided into two categories and Class-I Income Tax Officers
alone were entitled to be considered for promotion to the posts of
Commissioners and Assistant Commissioners. There could be no such
direct promotion from amongst officers who were Income Tax Officers
Class-II. The submission that this was violative of Article 16(1) of the
Constitution was rejected. Further submission was that both the
categories were doing same kind of work but their pay-scales were
different and as such the doctrine of ‘equal pay for equal work’ stood
violated. While considering said submission, the Constitution Bench
stated:-
“3. The only other contention raised is that there is
discrimination between class I and Class I Officers
inasmuch as though they do the same kind of work their
pay-scales are different. This, it is said, violates article 14
of the Constitution. If this contention had any validity,
there could be no incremental scales of pay fixed
dependent on the duration of an officer’s service. The
abstract doctrine of equal pay for equal work has nothing
to do with article 14. The contention that article 14 of the
constitution has been violated therefore also fails.”
61. Almost 20 years later, the doctrine of ‘equal pay for equal work’
was accepted by this Court in Randhir Singh vs. Union of India and
others31
. A Bench of three Judges stated that though the principle of
72 AIR 1962 SC 1139
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‘equal pay for equal work’ had not expressly been declared by the
Constitution to be a Fundamental Right, it was certainly a constitutional
goal. The discussion was as under:-
“7. Our attention was drawn to Binoy Kumar Mukerjee v.
Union of India ILR (1973) 1 Del 427 and Makhan Singh v.
Union of India ILR (1975) 1 Del 227, where reference was
made to the observations of this Court in Kishori
Mohanlal Bakshi v. Union of India AIR 1962 SC 1139
describing the principle of “equal pay for equal work” as
an abstract doctrine which had nothing to do with Article
14. We shall presently point out how the principle, “equal
pay for equal work”, is not an abstract doctrine but one of
substance. Kishori Mohanlal Bakshi v. Union of lndia
AIR 1962 SC 1139 is not itself of any real assistance to us
since what was decided there was that there could be
different scales of pay for different grades of a service. It
is well known that there can be and there are different
grades in a service, with varying qualifications for entry
into a particular grade, the higher grade often being a
promotional avenue for officers of the lower grade. The
higher qualifications for the higher grade, which may be
either academic qualifications or experience based on
length of service, reasonably sustain the classification of
the officers into two grades with different scales of pay.
The principle of “equal pay for equal work” would be an
abstract doctrine not attracting Article 14 if sought to be
applied to them.
8. It is true that the principle of “equal pay for equal work”
is not expressly declared by our Constitution to be a
fundamental right. But it certainly is a constitutional goal.
Article 39(d) of the Constitution proclaims “equal pay for
equal work for both men and women” as a directive
principle of State Policy. “Equal pay for equal work for
both men and women” means equal pay for equal work for
everyone and as between the sexes. directive principles, as
has been pointed out in some of the judgments of this
Court have to be read into the fundamental rights as a
matter of interpretation. Article 14 of the Constitution
enjoins the State not to deny any person equality before
the law or the equal protection of the laws and Article 16
declares that there shall be equality of opportunity for all
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citizens in matters relating to employment or appointment
to any office under the State. These equality clauses of the
Constitution must mean something to everyone. To the
vast majority of the people the equality clauses of the
Constitution would mean nothing if they are unconcerned
with the work they do and the pay they get. To them the
equality clauses will have some substance if equal work
means equal pay. Whether the special procedure
prescribed by a statute for trying alleged robber-barons
and smuggler kings or for dealing with tax evaders is
discriminatory, whether a particular governmental policy
in the matter of grant of licences or permits confers
unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and
unconstitutional and other questions of like nature, leave
the millions of people of this country untouched.
Questions concerning wages and the like, mundane they
may be, are yet matters of vital concern to them and it is
there, if at all that the equality clauses of the Constitution
have any significance to them. The Preamble to the
Constitution declares the solemn resolution of the people
of India to constitute India into a Sovereign Socialist
Democratic Republic. Again the word “socialist” must
mean something. Even if it does not mean ‘to each
according to his need’, it must at least mean “equal pay for
equal work”. “The principle of “equal pay for equal work”
is expressly recognized by all socialist systems of law,
e.g., Section 59 of the Hungarian Labour Code, para 2 of
Section 111 of the Czechoslovak Code, Section 67 of the
Bulgarian Code, Section 40 of the Code of the German
Democratic Republic, para 2 of Section 33 of the
Rumanian Code. Indeed this principle has been
incorporated in several western Labour Codes too. Under
provisions in Section 31 (g. No. 2d) of Book I of the
French Code du Travail, and according to Argentinian law,
this principle must be applied to female workers in all
collective bargaining agreements. In accordance with
Section 3 of the Grundgesetz of the German Federal
Republic, and Clause 7, Section 123 of the Mexican
Constitution, the principle is given universal significance”
(vide International Labour Law by Istvan Szaszy, p. 265).
The Preamble to the Constitution of the International
Labour Organisation recognises the principle of ‘equal
remuneration for work of equal value’ as constituting one
of the means of achieving the improvement of conditions
“involving such injustice, hardship and privation to large
numbers of people as to produce unrest so great that the
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peace and harmony of the world are imperilled”.
Construing Articles 14 and 16 in the light of the Preamble
and Article 39 (d), we are of the view that the principle
“equal pay for equal work” is deducible from those
Articles and may be properly applied to cases of unequal
scales of pay based on no classification or irrational
classification though those drawing the different scales of
pay do identical work under the same employer.
9. There cannot be the slightest doubt that the drivers
in the Delhi Police Force perform the same functions and
duties as other drivers in service of the Delhi
Administration and the Central Government. If anything,
by reason of their investiture with the “powers, functions
and privileges of a police officer”, their duties and
responsibilities are more arduous. In answer to the
allegation in the petition that the driver-constables of the
Delhi Police Force perform no less arduous duties than
drivers in other departments, it was admitted by the
respondents in their counter that the duties of the driverconstables of the Delhi Police Force were onerous. What
then is the reason for giving them a lower scale of pay
than others? There is none. The only answer of the
respondents is that the drivers of the Delhi Police Force
and the other drivers belong to different departments and
that the principle of “equal pay for equal work” is not a
principle which the courts may recognise and act upon. We
have shown that the answer is unsound. The clarification
is irrational. We, therefore, allow the writ petition and
direct the respondents to fix the scale of pay of the
petitioner and the driver-constables of the Delhi Police
Force at least on a par with that of the drivers of the
Railway Protection Force. The scale of pay shall be
effective from January 1, 1973, the date from which the
recommendations of the Pay Commission were given
effect.”
62. Post Randhir Singh31
, there have been number of decisions
rendered by this Court and instead of looking into and considering every
single decision on the point, we may consider those decisions which
themselves had taken into account all the earlier decisions and then
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considered if there are any limitations or qualifications to the doctrine of
‘equal pay for equal work’.
63. In State of Haryana and others vs. Charanjit Singh and others4
a
Bench of three Judges of this Court, speaking through Variava, J.
observed as under:-
“19. Having considered the authorities and the
submissions we are of the view that the authorities in the
cases of Jasmer Singh (1996) 11 SCC 77, Tilak Raj (2003)
6 SCC 123, Orissa University of Agriculture &
Technology (2003) 5 SCC 188 and Tarun K. Roy (2004) 1
SCC 347 lay down the correct law. Undoubtedly, the
doctrine of “equal pay for equal work” is not an abstract
doctrine and is capable of being enforced in a court of law.
But equal pay must be for equal work of equal value. The
principle of “equal pay for equal work” has no mechanical
application in every case. Article 14 permits reasonable
classification based on qualities or characteristics of
persons recruited and grouped together, as against those
who were left out. Of course, the qualities or
characteristics must have a reasonable relation to the
object sought to be achieved. In service matters, merit or
experience can be a proper basis for classification for the
purposes of pay in order to promote efficiency in
administration. A higher pay scale to avoid stagnation or
resultant frustration for lack of promotional avenues is
also an acceptable reason for pay differentiation. The very
fact that the person has not gone through the process of
recruitment may itself, in certain cases, make a difference.
If the educational qualifications are different, then also the
doctrine may have no application. Even though persons
may do the same work, their quality of work may differ.
Where persons are selected by a Selection Committee on
the basis of merit with due regard to seniority a higher pay
scale granted to such persons who are evaluated by the
competent authority cannot be challenged. A classification
based on difference in educational qualifications justifies a
difference in pay scales. A mere nomenclature designating
a person as say a carpenter or a craftsman is not enough to
come to the conclusion that he is doing the same work as
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another carpenter or craftsman in regular service. The
quality of work which is produced may be different and
even the nature of work assigned may be different. It is not
just a comparison of physical activity. The application of
the principle of “equal pay for equal work” requires
consideration of various dimensions of a given job. The
accuracy required and the dexterity that the job may entail
may differ from job to job. It cannot be judged by the mere
volume of work. There may be qualitative difference as
regards reliability and responsibility. Functions may be the
same but the responsibilities make a difference. Thus
normally the applicability of this principle must be left to
be evaluated and determined by an expert body. These are
not matters where a writ court can lightly interfere.
Normally a party claiming equal pay for equal work
should be required to raise a dispute in this regard. In any
event, the party who claims equal pay for equal work has
to make necessary averments and prove that all things are
equal. Thus, before any direction can be issued by a court,
the court must first see that there are necessary averments
and there is a proof. If the High Court is, on basis of
material placed before it, convinced that there was equal
work of equal quality and all other relevant factors are
fulfilled it may direct payment of equal pay from the date
of the filing of the respective writ petition. In all these
cases, we find that the High Court has blindly proceeded
on the basis that the doctrine of equal pay for equal work
applies without examining any relevant factors.”
64. In SC Chandra and others vs. State of Jharkhand and others11
Markandey Katju, J. in his concurring opinion observed as under:-
“33. It may be mentioned that granting pay scales is a
purely executive function and hence the court should not
interfere with the same. It may have a cascading effect
creating all kinds of problems for the Government and
authorities. Hence, the court should exercise judicial
restraint and not interfere in such executive function vide
Indian Drugs & Pharmaceuticals Ltd. v. Workmen
(2007)1 SCC 408.
… … …
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35. In our opinion fixing pay scales by courts by applying
the principle of equal pay for equal work upsets the high
constitutional principle of separation of powers between
the three organs of the State. Realising this, this Court has
in recent years avoided applying the principle of equal pay
for equal work, unless there is complete and wholesale
identity between the two groups (and there too the matter
should be sent for examination by an Expert Committee
appointed by the Government instead of the court itself
granting higher pay).
36. It is well settled by the Supreme Court that only
because the nature of work is the same, irrespective of
educational qualification, mode of appointment,
experience and other relevant factors, the principle of
equal pay for equal work cannot apply vide Govt. of W.B.
v. Tarun K. Roy (2004) 1 SCC 347.
37. Similarly, in State of Haryana v. Haryana Civil
Secretariat Personal Staff Assn. (2002) 6 SCC 72the
principle of equal pay for equal work was considered in
great detail. In paras 9 and 10 of the said judgment the
Supreme Court observed that equation of posts and salary
is a complex matter which should be left to an expert body.
The courts must realise that the job is both a difficult and
time consuming task which even experts having the
assistance of staff with requisite expertise have found it
difficult to undertake. Fixation of pay and determination of
parity is a complex matter which is for the executive to
discharge. Granting of pay parity by the court may result
in a cascading effect and reaction which can have adverse
consequences vide Union of India v. Pradip Kumar Dey
(2000) 8 SCC 580.”
65. In Official Liquidator vs. Dayanand and others12 Singhvi, J.
speaking for a Bench of three Judges observed as under:-
“94. The principle of equal pay for equal work for men
and women embodied in Article 39(d) was first considered
in Kishori Mohanlal Bakshi v. Union of India AIR 1962
SC 1139 and it was held that the said principle is not
capable of being enforced in a court of law. After 36 years,
the issue was again considered in Randhir Singh v. Union
of India (1982) 1 SCC 618, and it was unequivocally ruled
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that the principle of equal pay for equal work is not an
abstract doctrine and can be enforced by reading it into the
doctrine of equality enshrined in Articles 14 and 16 of the
Constitution of India.
95. The ratio of Randhir Singh v. Union of India (1982) 1
SCC 618 was reiterated and applied in several cases—
Dhirendra Chamoli v. State of U.P. (1986) 1 SCC 637,
Surinder Singh v. CPWD (1986) 1 SCC 639, Daily Rated
Casual Labour v. Union of India (1988) 1 SCC 122,
Dharwad Distt. PWD Literate Daily Wage Employees
Assn. v. State of Karnataka (1990)2 SCC 396 and Jaipal v.
State of Haryana (1988) 3 SCC 354 and it was held that
even a daily-wage employee who is performing duties
similar to regular employees is entitled to the same pay.
However, in Federation of All India Customs and Central
Excise Stenographers v. Union of India (1988) 3 SCC 91,
Mewa Ram Kanojia v. AIIMS (1989)2 SCC 235, V.
Markendeya v. State of A.P (1989) 3 SCC 191, Harbans
Lal v. State of H.P.(1989) 4 SCC 459, State of U.P. v. J.P.
Chaurasia (1989) 1 SCC 121, Grih Kalyan Kendra
Workers’ Union v. Union of India(1991)1 SCC 619, GDA
v. Vikram Chaudhary(1995) 5 SCC 210, State of Haryana
v. Jasmer Singh (1996) 11 SCC 77, State of Haryana v.
Surinder Kumar (1997) 3 SCC 633, Union of India v. K.V.
Baby (1998) 9 SCC 252, State of Orissa v. Balaram Sahu
(2003) 1 SCC 250, Utkal University v. Jyotirmayee Nayak
(2003) 4 SCC 760 , State of Haryana v. Tilak Raj (2003) 6
SCC 123, Union of India v. Tarit Ranjan Das (2003) 11
SCC 658 , Apangshu Mohan Lodh v. State of Tripura
(2004) 1 SCC 119, State of Haryana v. Charanjit Singh
(2006) 9 SCC 321, Hindustan Aeronautics Ltd. v. Dan
Bahadur Singh (2007) 6 SCC 207, Kendriya Vidyalaya
Sangathan v. L.V. Subramanyeswara (2007) 5 SCC 326
and Canteen Mazdoor Sabha v. Metallurgical & Engg.
Consultants (India) Ltd. (2007) 7 SCC 710, the Court
consciously and repeatedly deviated from the ruling of
Randhir Singh v. Union of India (1982) 1 SCC 618 and
held that similarity in the designation or quantum of work
are not determinative of equality in the matter of pay
scales and that before entertaining and accepting the claim
based on the principle of equal pay for equal work, the
Court must consider the factors like the source and mode
of recruitment/appointment, the qualifications, the nature
of work, the value judgment, responsibilities, reliability,
experience, confidentiality, functional need, etc.
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… … …
99. In Canteen Mazdoor Sabha v. Metallurgical & Engg.
Consultants (India) Ltd (2007) 7 SCC 710 another twoJudge Bench held that simply because some employees of
a contractor of the alleged head employer are performing
the task or duties similar to the employees of the head
employer, it will not entitle such employees to claim
parity.
100. As mentioned earlier, the respondents were
employed/engaged by the Official Liquidators pursuant to
the sanction accorded by the Court under Rule 308 of the
1959 Rules and they are paid salaries and allowances from
the company fund. They were neither appointed against
sanctioned posts nor were they paid out from the
Consolidated Fund of India. Therefore, the mere fact that
they were doing work similar to the regular employees of
the Offices of the Official Liquidators cannot be treated as
sufficient for applying the principle of equal pay for equal
work. Any such direction will compel the Government to
sanction additional posts in the Offices of the Official
Liquidators so as to facilitate payment of salaries and
allowances to the company-paid staff in the regular pay
scale from the Consolidated Fund of India and in view of
our finding that the policy decision taken by the
Government of India to reduce the number of posts meant
for direct recruitment does not suffer from any legal or
constitutional infirmity, it is not possible to entertain the
plea of the respondents for payment of salaries and
allowances in the regular pay scales and other monetary
benefits on a par with regular employees by applying the
principle of equal pay for equal work.”
66. In State of Punjab and another vs. Surjit Singh and others13
Sinha, J. considered all the relevant decisions on the point and stated as
under:-
“8. Before us, the learned counsel urged that on analysis of
the decisions rendered by this Court, the following legal
positions emerge. We would deal with them in seriatim
and as put forward by the learned counsel:
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(1) Mode and manner of selection can be a ground
of classification. In S.C. Chandra v. State of
Jharkhand(2007) 8 SCC 279 it has been held:
(SCC pp. 290-91, paras 27 & 30)
“27. Thus, in State of Haryana v. Tilak Raj(2003) 6
SCC 123 it was held that the principle can only
apply if there is complete and wholesale identity
between the two groups. Even if the employees in
the two groups are doing identical work they
cannot be granted equal pay if there is no complete
and wholesale identity e.g. a daily-rated employee
may be doing the same work as a regular employee,
yet he cannot be granted the same pay scale.
Similarly, two groups of employees may be doing
the same work, yet they may be given different pay
scales if the educational qualifications are different.
Also, pay scale can be different if the nature of jobs,
responsibilities, experience, method of recruitment,
etc. are different.
* * *
30. In State of U.P. v. Ministerial Karamchari
Sangh (1998) 1 SCC 422 the Supreme Court
observed that even if persons holding the same post
are performing similar work but if the mode of
recruitment, qualification, promotion, etc. are
different it would be sufficient for fixing different
pay scale. Where the mode of recruitment,
qualification and promotion are totally different in
the two categories of posts, there cannot be any
application of the principle of equal pay for equal
work.”
(emphasis in original)
In a given case, mode of selection may be
considered as one of the factors which may make a
difference. (See State of Haryana v. Charanjit
Singh(2006) 9 SCC 321, SCC para 15.)
(2) A daily wager working for a long time should be
granted pay on the basis of the minimum of a pay
scale. Reliance in this behalf has been placed on
State of Karnataka v. Umadevi (3)(2006) 4 SCC 1.
It was furthermore urged that this Court should
follow the principle laid down by the Constitution
Bench in Umadevi as such a relief had been granted
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by it in respect of daily wagers of the Commercial
Taxes Department. The learned counsel submitted
that this Court lately, although made a distinction
between a direction to regularise the employees
who had been working for some time, but keeping
in view the constitutional mandate contained in
Article 39-A of the Constitution of India directed
grant of a salary on a scale of pay, particularly in
cases where the conduct of the State had been found
to be unreasonable, unjust and prejudiced.
… … …
17. We must also place on record the fact that in different
phases of development of law by this Court, relying on or
on the basis of the said principle, a clear cleavage of
opinion has emerged. Whereas in the 1970s and 1980s,
this Court liberally applied the said principle without
insisting on clear pleadings or proof that the persons
similarly situated with others are equal in all respects; of
late also; this Court has been speaking in different voices
as would be evident from the following. This has been
noticed specifically by a Division Bench of this Court in
S.C. Chandra v. State of Jharkhand(2007) 8 SCC 279,
wherein it was held: (SCC p. 289, para 21)
“21. Learned counsel for the appellants have relied
on Article 39(d) of the Constitution. Article 39(d)
does not mean that all the teachers working in the
school should be equated with the clerks in BCCL
or the Government of Jharkhand for application of
the principle of equal pay for equal work. There
should be total identity between both groups i.e. the
teachers of the school on the one hand and the
clerks in BCCL, and as such the teachers cannot be
equated with the clerks of the State Government or
of BCCL. The question of application of Article
39(d) of the Constitution has recently been
interpreted by this Court in State of Haryana v.
Charanjit Singh(2006) 9 SCC 321 wherein Their
Lordships have put the entire controversy to rest
and held that the principle, ‘equal pay for equal
work’ must satisfy the test that the incumbents are
performing equal and identical work as discharged
by employees against whom the equal pay is
claimed. Their Lordships have reviewed all the
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cases bearing on the subject and after a detailed
discussion have finally put the controversy to rest
that the persons who claimed the parity should
satisfy the court that the conditions are identical and
equal and same duties are being discharged by
them. Though a number of cases were cited for our
consideration but no useful purpose will be served
as in Charanjit Singh(2006) 9 SCC 321 all these
cases have been reviewed by this Court. More so,
when we have already held that the appellants are
not the employees of BCCL, there is no question
seeking any parity of pay with that of the clerks of
BCCL.”
18. Katju, J. in his separate but concurrent judgment
opined as under: (S.C. Chandra case (2007) 8 SCC 279,
SCC pp. 290 & 293-94, paras 26 & 35)
“26. Fixation of pay scale is a delicate mechanism
which requires various considerations including
financial capacity, responsibility, educational
qualification, mode of appointment, etc. and it has a
cascading effect. Hence, in subsequent decisions of
this Court the principle of equal pay for equal work
has been considerably watered down, and it has
hardly ever been applied by this Court in recent
years.
* * *
35. In our opinion fixing pay scales by courts by
applying the principle of equal pay for equal work
upsets the high constitutional principle of separation
of powers between the three organs of the State.
Realising this, this Court has in recent years
avoided applying the principle of equal pay for
equal work, unless there is complete and wholesale
identity between the two groups (and there too the
matter should be sent for examination by an expert
committee appointed by the Government instead of
the court itself granting higher pay).”
19. The Bench in S.C. Chandra case (2007) 8 SCC 279 in
arriving at the said finding specifically relied upon a threeJudge Bench decision of this Court in Charanjit
Singh(2006) 9 SCC 321, wherein it was held: (Charanjit
Singh case, SCC pp. 329-30 & 334-36, paras 9, 17, 19 &
22)
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“9. In State of Haryana v. Tilak Raj(2003) 6 SCC
123 it has been held that the principle of equal pay
for equal work is not always easy to apply. It has
been held that there are inherent difficulties in
comparing and evaluating the work of different
persons in different organisations or even in the
same organisation. It has been held that this is a
concept which requires, for its applicability,
complete and wholesale identity between a group of
employees claiming identical pay scales and the
other group of employees who have already earned
such pay scales. It has been held that the problem
about equal pay cannot be translated into a
mathematical formula. It was further held as
follows: (SCC p. 127, para 11)
‘11. A scale of pay is attached to a definite post and
in case of a daily wager, he holds no posts. The
respondent workers cannot be held to hold any
posts to claim even any comparison with the regular
and permanent staff for any or all purposes
including a claim for equal pay and allowances. To
claim a relief on the basis of equality, it is for the
claimants to substantiate a clear-cut basis of
equivalence and a resultant hostile discrimination
before becoming eligible to claim rights on a par
with the other group vis-à-vis an alleged
discrimination. No material was placed before the
High Court as to the nature of the duties of either
categories and it is not possible to hold that the
principle of “equal pay for equal work” is an
abstract one.’
* * *
17. In Bhagwan Dass v. State of Haryana(1987) 4
SCC 634 this Court held that if the duties and
functions of the temporary appointees and regular
employees are similar, there cannot be
discrimination in pay merely on the ground of
difference in modes of selection. It was held that the
burden of proving similarity in the nature of work
was on the aggrieved worker. We are unable to
agree with the view that there cannot be
discrimination in pay on the ground of differences
in modes of selection. As has been correctly laid
down in Jasmer Singh case (1996) 11 SCC 77
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persons selected by a Selection Committee on the
basis of merit with due regard to seniority can be
granted a higher pay scale as they have been
evaluated by the competent authority and in such
cases payment of a higher pay scale cannot be
challenged. Jasmer Singh case has been noted with
approval in Tarun K. Roy case (2004) 1 SC 347.
19. Having considered the authorities and the
submissions we are of the view that the authorities
in Jasmer Singh (1996) 1 SC 77, Tilak Raj (2003) 6
SCC 123, Orissa University of Agriculture &
Technology (2003) 5 SCC 188 and Tarun K. Roy
(2004) 1 SCC 347 lay down the correct law.
Undoubtedly, the doctrine of ‘equal pay for equal
work’ is not an abstract doctrine and is capable of
being enforced in a court of law. But equal pay
must be for equal work of equal value. The
principle of ‘equal pay for equal work’ has no
mechanical application in every case. Article 14
permits reasonable classification based on qualities
or characteristics of persons recruited and grouped
together, as against those who were left out. Of
course, the qualities or characteristics must have a
reasonable relation to the object sought to be
achieved. In service matters, merit or experience
can be a proper basis for classification for the
purposes of pay in order to promote efficiency in
administration. A higher pay scale to avoid
stagnation or resultant frustration for lack of
promotional avenues is also an acceptable reason
for pay differentiation. The very fact that the person
has not gone through the process of recruitment
may itself, in certain cases, make a difference. If the
educational qualifications are different, then also
the doctrine may have no application. Even though
persons may do the same work, their quality of
work may differ. Where persons are selected by a
Selection Committee on the basis of merit with due
regard to seniority a higher pay scale granted to
such persons who are evaluated by the competent
authority cannot be challenged. A classification
based on difference in educational qualifications
justifies a difference in pay scales. A mere
nomenclature designating a person as say a
carpenter or a craftsman is not enough to come to
the conclusion that he is doing the same work as
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another carpenter or craftsman in regular service.
The quality of work which is produced may be
different and even the nature of work assigned may
be different. It is not just a comparison of physical
activity. The application of the principle of ‘equal
pay for equal work’ requires consideration of
various dimensions of a given job. The accuracy
required and the dexterity that the job may entail
may differ from job to job. It cannot be judged by
the mere volume of work. There may be qualitative
difference as regards reliability and responsibility.
Functions may be the same but the responsibilities
make a difference. Thus normally the applicability
of this principle must be left to be evaluated and
determined by an expert body. These are not matters
where a writ court can lightly interfere. Normally a
party claiming equal pay for equal work should be
required to raise a dispute in this regard. In any
event, the party who claims equal pay for equal
work has to make necessary averments and prove
that all things are equal. Thus, before any direction
can be issued by a court, the court must first see that
there are necessary averments and there is a proof.
If the High Court is, on basis of material placed
before it, convinced that there was equal work of
equal quality and all other relevant factors are
fulfilled it may direct payment of equal pay from
the date of the filing of the respective writ petition.
In all these cases, we find that the High Court has
blindly proceeded on the basis that the doctrine of
equal pay for equal work applies without examining
any relevant factors.
* * *
22. One other fact which must be noted is that Civil
Appeals Nos. 6648, 6647, 6572 and 6570 of 2002
do not deal with casual or daily-rated workers.
These are cases of persons employed on contract.
To such persons the principle of equal pay for equal
work has no application. The Full Bench judgment
dealt only with daily-rated and casual workers.
Where a person is employed under a contract, it is
the contract which will govern the terms and
conditions of service. In State of Haryana v.
Surinder Kumar(1997) 3 SCC 633 persons
employed on contract basis claimed equal pay as
regular workers on the footing that their posts were
interchangeable. It was held that these persons had
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no right to the regular posts until they are duly
selected and appointed. It was held that they were
not entitled to the same pay as regular employees
by claiming that they are discharging the same
duties. It was held that the very object of selection
is to test the eligibility and then to make
appointment in accordance with the rules. It was
held that the respondents had not been recruited in
accordance with the rules prescribed for
recruitment.”
… … …
24. It is no longer in doubt or dispute that grant of the
benefit of the doctrine of “equal pay for equal work”
depends upon a large number of factors including equal
work, equal value, source and manner of appointment,
equal identity of group and wholesale or complete identity.
This Court, even recently, in Union of India v.
Mahajabeen Akhtar (2008) 1 SCC 368, categorically held
as under: (SCC pp. 376-77, paras 19 & 24)
“19. The question came to be considered in a large
number of decisions of this Court wherein it
unhesitatingly came to the conclusion that a large
number of factors, namely, educational
qualifications, nature of duty, nature of
responsibility, nature of method of recruitment, etc.
will be relevant for determining equivalence in the
matter of fixation of scale of pay. (See Finance
Deptt. v. W.B. Registration Service Assn.1993 Supp
(1) SCC 153, State of U.P. v. J.P. Chaurasia (1989)
1 SCC 121, Union of India v. Pradip Kumar Dey
(2000)8 SCC 580 and State of Haryana v. Haryana
Civil Secretariat Personal Staff Assn. (2002) 6 SCC
72)
* * *
24. On the facts obtaining in this case, therefore, we
are of the opinion that the doctrine of equal pay for
equal work has no application. The matter may have
been different, had the scales of pay been
determined on the basis of educational
qualification, nature of duties and other relevant
factors. We are also not oblivious of the fact that
ordinarily the scales of pay of employees working
in different departments should be treated to be on a
par and the same scale of pay shall be
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recommended. The respondent did not opt for her
services to be placed on deputation. She opted to
stay in the government service as a surplus. She was
placed in list as Librarian in National Gallery of
Modern Art. She was designated as Assistant
Librarian and Information Assistant. Her pay scale
was determined at Rs 6500-10,500 which was the
revised scale of pay. Her case has admittedly not
been considered by the Fifth Pay Revision
Commission. If a scale of pay in a higher category
has been refixed keeping in view the educational
qualifications and other relevant factors by an
expert body, no exception thereto can be taken.
Concededly it was for the Union of India to assign
good reasons for placing her in a different scale of
pay. It has been done. We have noticed hereinbefore
that not only the essential educational qualifications
are different but the nature of duties is also
different. Article 39(d) as also Article 14 of the
Constitution of India must be applied, inter alia, on
the premise that equality clause should be invoked
in respect of the people who are similarly situated
in all respects.”
How the said principle is to be applied in different
fact situation is the only question. Whereas this
Court refused to apply the said principle as the
petitioners therein did not have the requisite
qualification; in Union of India v. Dineshan K.K
(2008) 1 SCC 586, the application of the rule was
advocated to be left to an expert body, stating:
(Dineshan K.K. case) SCC pp. 592-93, para 16)
“16. Yet again in a recent decision in State of
Haryana v. Charanjit Singh(2006) 9 SCC
321 a Bench of three learned Judges, while
affirming the view taken by this Court in
State of Haryana v. Jasmer Singh (1996) 11
SCC 77, Tilak Raj (2003) 6 SCC 123, Orissa
University of Agriculture & Technology v.
Manoj K. Mohanty (2003) 5 SCC 188 and
Govt. of W.B. v. Tarun K. Roy (2004) 1 SCC
347 has reiterated that the doctrine of equal
pay for equal work is not an abstract doctrine
and is capable of being enforced in a court of
law. Inter alia, observing that equal pay must
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be for equal work of equal value and that the
principle of equal pay for equal work has no
mathematical application in every case, it has
been held that Article 14 permits reasonable
classification based on qualities or
characteristics of persons recruited and
grouped together, as against those who are
left out. Of course, the qualities or
characteristics must have a reasonable
relation to the object sought to be achieved.
Enumerating a number of factors which may
not warrant application of the principle of
equal pay for equal work, it has been held
that since the said principle requires
consideration of various dimensions of a
given job, normally the applicability of this
principle must be left to be evaluated and
determined by an expert body and the court
should not interfere till it is satisfied that the
necessary material on the basis whereof the
claim is made is available on record with
necessary proof and that there is equal work
of equal quality and all other relevant factors
are fulfilled.”
25. It may be that in Charanjit Singh (2006) 9 SCC 321,
Variava, J., speaking for the three-Judge Bench, has used
the word “may” in regard to the source of recruitment but
the same has to be considered as a relevant factor as the
operative part of the judgment shows. Charanjit Singh,
therefore, does not militate against the other decisions of
this Court where the mode and manner of appointment has
been considered to be a relevant factor for the purpose of
invocation of the said doctrine. We are bound by the
aforementioned three-Judge Bench decision.”
67. In Steel Authority of India Limited and others vs. Dibyendu
Bhattacharya14 Dr. Chauhan, J. stated:
“23. This Court while deciding a similar issue in State of
W.B. v. W.B. Minimum Wages Inspectors Assn. (2010) 5
SCC 225, held as under: (SCC p. 232, paras 18-20)
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“18. … The evaluation of duties and
responsibilities of different posts and
determination of the pay scales applicable to such
posts and determination of parity in duties and
responsibilities are complex executive functions,
to be carried out by expert bodies. Granting parity
in pay scale depends upon comparative job
evaluation and equation of posts.
19. The principle ‘equal pay for equal work’ is not
a fundamental right but a constitutional goal. It is
dependent on various factors such as educational
qualifications, nature of the jobs, duties to be
performed, responsibilities to be discharged,
experience, method of recruitment, etc.
Comparison merely based on designation of posts
is misconceived. Courts should approach such
matters with restraint and interfere only if they are
satisfied that the decision of the Government is
patently irrational, unjust and prejudicial to any
particular section of employees.
20. The burden to prove disparity is on the
employees claiming parity….”
… … …
30. In view of the above, the law on the issue can be
summarised to the effect that parity of pay can be claimed
by invoking the provisions of Articles 14 and 39(d) of the
Constitution of India by establishing that the eligibility,
mode of selection/recruitment, nature and quality of work
and duties and effort, reliability, confidentiality, dexterity,
functional need and responsibilities and status of both the
posts are identical. The functions may be the same but the
skills and responsibilities may be really and substantially
different. The other post may not require any higher
qualification, seniority or other like factors. Granting
parity in pay scales depends upon the comparative
evaluation of job and equation of posts. The person
claiming parity, must plead necessary averments and prove
that all things are equal between the posts concerned. Such
a complex issue cannot be adjudicated by evaluating the
affidavits filed by the parties.
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31. The onus to establish the discrimination by the
employer lies on the person claiming the parity of pay. The
Expert Committee has to decide such issues, as the
fixation of pay scales, etc. falls within the exclusive
domain of the executive. So long as the value judgment of
those who are responsible for administration i.e. service
conditions, etc. is found to be bona fide, reasonable, and
on intelligible criteria which has a rational nexus of
objective of differentiation, such differentiation will not
amount to discrimination. It is not prohibited in law to
have two grades of posts in the same cadre. Thus, the
nomenclature of a post may not be the sole determinative
factor. The courts in exercise of their limited power of
judicial review can only examine whether the decision of
the State authorities is rational and just or prejudicial to a
particular set of employees. The court has to keep in mind
that a mere difference in service conditions does not
amount to discrimination. Unless there is complete and
wholesale/wholesome identity between the two posts they
should not be treated as equivalent and the court should
avoid applying the principle of equal pay for equal work”.
68. Analysis of the decisions referred to above shows that this Court
has accepted following limitations or qualifications to the applicability of
the doctrine of ‘equal pay for equal work’:-
i) The doctrine of ‘equal pay for equal work’ is not
an abstract doctrine.
ii) The principle of ‘equal pay for equal work’ has no
mechanical application in every case.
iii) The very fact that the person has not gone through
the process of recruitment may itself, in certain
cases, makes a difference.
iv) The application of the principle of ‘equal pay for
equal work’ requires consideration of various
dimensions of a given job.
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v) Thus normally the applicability of this principle
must be left to be evaluated and determined by an
expert body. These are not matters where a writ
court can lightly interfere.
vi) Granting pay scales is a purely executive function
and hence the court should not interfere with the
same. It may have a cascading effect creating all
kinds of problems for the Government and
authorities.
vii) Equation of posts and salary is a complex matter
which should be left to an expert body.
viii) Granting of pay parity by the court may result in a
cascading effect and reaction which can have
adverse consequences.
ix) Before entertaining and accepting the claim based
on the principle of equal pay for equal work, the
Court must consider the factors like the source and
mode of recruitment/appointment.
x) In a given case, mode of selection may be
considered as one of the factors which may make a
difference.
69. The latest decision on which heavy reliance was placed on behalf
of Niyojit Teachers is the one rendered by a Bench of two Judges in State
of Punjab and others vs. Jagjit Singh and others2
. The issues that arose
for consideration were set out in para 5 as under:-
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“5. The issue which arises for our consideration is:
whether temporarily engaged employees (daily-wage
employees, ad hoc appointees, employees appointed on
casual basis, contractual employees and the like), are
entitled to minimum of the regular pay scale, along with
dearness allowance (as revised from time to time) on
account of their performing the same duties which are
discharged by those engaged on regular basis, against
sanctioned posts? The Full Bench (Avtar Singh vs. State
of Punjab, 2011 SCC Online P & H 15326) of the High
Court, while adjudicating upon the above controversy had
concluded, that such like temporary employees were not
entitled to the minimum of the regular pay scale, merely
for reason, that the activities carried on by daily wagers
and the regular employees were similar. However, it
carved out two exceptions, and extended the minimum of
the regular pay to such employees. The exceptions
recorded by the Full Bench of the High Court in the
impugned judgment are extracted hereunder: (Avtar Singh
case, SCC OnLine P&H para 37)
“(1) A daily wager, ad hoc or contractual
appointee against the regular sanctioned posts, if
appointed after undergoing a selection process
based upon fairness and equality of opportunity
to all other eligible candidates, shall be entitled to
minimum of the regular pay scale from the date
of engagement.
(2) But if daily wagers, ad hoc or contractual
appointees are not appointed against regular
sanctioned posts and their services are availed
continuously, with notional breaks, by the State
Government or its instrumentalities for a
sufficient long period i.e. for 10 years, such daily
wagers, ad hoc or contractual appointees shall be
entitled to minimum of the regular pay scale
without any allowances on the assumption that
work of perennial nature is available and having
worked for such long period of time, an equitable
right is created in such category of persons. Their
claim for regularisation, if any, may have to be
considered separately in terms of legally
permissible scheme.
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(3) In the event, a claim is made for minimum
pay scale after more than three years and two
months of completion of 10 years of continuous
working, a daily wager, ad hoc or contractual
employee shall be entitled to arrears for a period
of three years and two months.”
70. While considering the aforesaid issue this Court had noted all the
decisions on the point of pay parity from Randhir Singh vs. Union of
India31 and then in para 42 arrived at conclusions. The limitations or
qualifications to the application of doctrine of ‘equal pay for equal work’
were also considered in para 42 and from para 43 onwards, Claim for pay
parity raised by temporary employees (differently designated as workcharge, daily-wage, casual, ad hoc, contractual and the like) was also
considered. After discussion on the point, the matter was concluded thus:-
“57. There is no room for any doubt that the principle of
“equal pay for equal work” has emerged from an
interpretation of different provisions of the Constitution.
The principle has been expounded through a large number
of judgments rendered by this Court, and constitutes law
declared by this Court. The same is binding on all the
courts in India under Article 141 of the Constitution of
India. The parameters of the principle have been
summarised by us in para 42 hereinabove. The principle of
“equal pay for equal work” has also been extended to
temporary employees (differently described as workcharge, daily wage, casual, ad hoc, contractual, and the
like). The legal position, relating to temporary employees
has been summarised by us, in para 44 hereinabove. The
above legal position which has been repeatedly declared,
is being reiterated by us yet again.”
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71. The qualifications to the applicability of the doctrine of ‘equal pay
for equal work’ which have long been recognised and acknowledged in
the decisions referred to above are well established. The decision in
Jagjit Singh2
again reiterated some of those qualifications. These
limitations or qualifications have not been diluted but stand re-inforced.
72. We may, at this stage, deal with the submission advanced on
behalf of the State that the decision in Jagjit Singh did not take into
account the earlier decisions rendered by this Court in State of Punjab vs.
Joginder Singh28 and Zabar Singh vs. The State of Haryana29 and others.
In the first case, Respondent Joginder Singh was working as a
teacher in a District Board High School in Hoshiarpur before 1.10.1957.
By reason of government decision taken in September, 1957, which came
into effect on 1.10.1957 all teachers like Respondent Joginder Singh,
employed in District Board and Municipal Board Schools, became State
employees. Before such decision was taken, the State had decided to have
two categories of teachers working in the State service. 15% of the total
strength of teachers were put in a middle scale of a salary scale while the
rest of 85% were put in a lower scale. The former, thus, had better
chances of promotion to further levels. After taking over the schools run
by District Board and Municipal Boards, which was called
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‘provincialization’ the teachers like Respondent Joginder Singh, though
became State employees, were part of cadre of provincialized teachers
which was distinct from the cadre of State teachers. A decision was also
taken not to make any further appointments in the provincialized cadre
and thus said cadre was to be a dying or vanishing cadre. It was also
decided that the provincialized cadre would stand bifurcated on the same
pattern of 15:85 as was done in the State cadre but any retirements in the
provincialized cadre would not result in fresh appointments in that cadre
but the appropriate number would get added to the State cadre and fresh
appointments would be made only in the State cadre. It must be noted
that the employees in both the cadres were given the same pay-scale but
their chances of promotion were completely different. The submission
that with the passage of time, the strength of provincialized cadre would
keep reducing and as such, the chances of promotion and being part of
15% group would keep diminishing and as such the employees in
provincialized cadre would be put to prejudice was accepted by the High
Court. It was observed by this Court in State of Punjab vs. Joginder
Singh28 as under:-
“22. It now remains to consider a point which was raised
that the State cannot constitute two Services consisting of
employees doing the same work but with different scales
of pay or subject to different conditions of service and that
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the constitution of such services would be violative of
Article 14. Underlying this submission are two postulates:
(1) equal work must receive equal pay, and (2) if there be
equality in pay and work there have to be equal conditions
of service. So far as the first proposition is concerned it
has been definitely ruled out by this Court in Kishori
Mohanlal v. Union of India (1962 SC AIR 1139) Das
Gupta, J. speaking for the Court said:
“The only other contention raised is that there is
discrimination between Class I and Class II
officers inasmuch as though they do the same
kind of work their pay scales are different. This,
it is said, violates Article 14 of the Constitution.
If this contention had any validity, there could
be no incremental scales of pay fixed dependent
on the duration of an officer’s service. The
abstract doctrine of equal pay for equal work
has nothing to do with Article 14. The
contention that Article 14 of the Constitution
has been violated, therefore, also fails.”
The second also, is, in our opinion, unsound. If, for
instance, an existing service is recruited on the basis of a
certain qualification, the creation of another service for
doing the same work, it might be in the same way but with
better prospects of promotion cannot be said to be
unconstitutional, and the fact that the rules framed permit
free transfers of personnel of the two groups to places held
by the other would not make any difference. We are not
basing this answer on any theory that if a government
servant enters into any contract regulating the conditions
of his service he cannot call in aid the constitutional
guarantees because he is bound by his contract. But this
conclusion, rests on different and wider public grounds
viz. that the government which is carrying on the
administration has necessarily to have a choice in the
constitution of the services to man the administration and
that the limitations imposed by the constitution are not
such as to preclude the creation of such services. Besides,
there might, for instance, be a temporary recruitment to
meet an exigency or an emergency which is not expected
to last for any appreciable period of time. To deny to the
Government the power to recruit temporary staff drawing
the same pay and doing the same work as other permanent
incumbents within the cadre strength but governed by
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different rules and conditions of service, it might be
including promotions, would be to impose restraints on the
manner of administration which we believe was not
intended by the Constitution. For the purpose of the
decision of this appeal the question here discussed is
rather academic but we are expressing ourselves on it in
view of the arguments addressed to us.
23. Besides the disparity in the chances of promotion
between teachers of the provincialised and the State Cadre
created by Rule 3 of the impugned rules, the learned
Judges of the High Court have held that there was a
further disparity by reason of the teachers of the State
Cadre being borne on a Divisional list, while under the
rules the inter se seniority and promotions of
“provincialised” teachers was determined districtwise. It
was pointed out by the learned Solicitor-General for the
appellant that the State Cadre was kept on a Divisional
basis because of the very small number of the members of
that Service, whereas it was found administratively
inconvenient to have a similar geographical classification
of members of the provincialised service and for that
reason and no other, districtwise seniority, promotion and
transfers was laid down for provincialised teachers.
Learned counsel for the respondent did not rely on this
reasoning of the learned Judges of the High Court in
deciding the case now under appeal. We therefore do not
consider it necessary to make any further reference to it.
24. As we have stated already, the two services started as
independent Services. The qualifications prescribed for
entry into each were different, the method of recruitment
and the machinery for the same were also different and the
general qualifications possessed by and large by the
members of each class being different, they started as two
distinct classes. If the Government Order of September 27,
1957 did not integrate them into a single service, it would
follow that the two remained as they started as two distinct
services. If they were distinct services, there was no
question of inter se seniority between members of the two
services, nor of any comparison between the two in the
matter of promotion for founding an argument based upon
Article 14 or Article 16(1). They started dissimilarly and
they continued dissimilarly and any dissimilarity in their
treatment would not be a denial of equal opportunity, for it
is common ground that within each group there is no
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denial of that freedom guaranteed by the two articles. The
foundation therefore of the judgment of the learned Judges
of the High Court that the impugned rules created two
classes out of what was formerly a single class and
introduced elements of discrimination between the two,
has no factual basis if, as we hold the order of September
27, 1957 did not effectuate a complete integration of the
two Services. On this view it would follow that the
impugned rules cannot be struck down as violative of the
Constitution.
25. Before concluding it is necessary to point out that, as
explained earlier, the source of the prejudice caused by the
impugned rules to the “provincialised” teachers lies not in
the fact that the two cadres were kept separate but on
account of the fact that the “provincialised” cadre was
intended to be gradually extinguished. The real question
for consideration would therefore be whether there was
anything unconstitutional in the Government decision in
the matter. In other words, had the respondent and his
class any fundamental right to have their cadre strength
maintained undiminished? This is capable of being
answered only in the negative. If their cadre strength
became diminished, the proportion thereof who could be
in the grade viz. 15% of the total strength being
predetermined, there must necessarily be a progressive
reduction in the number of selection posts. In other words
a mere reduction of the cadre strength would bring about
that result and unless the respondent could establish that
the Government were bound in Law to fill up all vacancies
in the provincialised cadre by fresh recruitment to that
cadre and thus keep its strength at the level at which it was
on October 1, 1957, he should fail. It is manifest that such
a contention is obviously untenable.”
73. In the second decision it was contended that the decision of the
Constitution Bench in Joginder Singh’s case required reconsideration and
as such a Bench of seven Judges was constituted which dealt with the
matter in Zabar Singh and others vs. The State of Haryana and others29
.
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The discussion in paragraphs 27 to 30, 32 to 33 and 35, 36 and 40 was as
under:-
“27. The position which emerges from the aforesaid
analysis is that prior to October 1, 1957, the two categories
of teachers, those serving in the local bodies schools and
those in government schools were distinct. Though the
minimum qualifications and scales of pay might have been
uniform, there were differences in other matters such as
methods of recruitment, retiral benefits, rules for
determining seniority, etc. It is also clear that whereas a
government school teacher was liable to be transferred to
any place throughout the Commissioner’s division, a local
body teacher could only be transferred within the
territorial limits of that body. Appointments in Local
Bodies schools, no doubt, were made by Inspectors
appointed by government, but they could do so only in
consultation with the Chairman or President of such a
body. That was the position also in regard to disciplinary
matters. Further, although the prescribed minimum
qualifications were the same, in point of fact 50% or more
of the Local Bodies teachers were non-matriculates and
quite a number of such non-matriculate teachers were also
without the qualification of Basic Training as against a
few non-matriculates and none without such Basic
Training in the Government schools. In any event the mere
fact that minimum qualifications and scales of pay were
the same could not mean, in view of other dissimilar
conditions of service, that the two categories of teachers
formed one class. Indeed, Mr Tarkunde conceded, as is
even otherwise clear, that prior to October 1, 1957,
teachers in local bodies and in government schools did not
form one class.
28. So far as the position on October 1, 1957, is
concerned, as already noticed, the Government schools
teachers were and continued to be governed by the Rules
of 1955, which, no doubt, came into force with effect from
May 30, 1957 and which prescribed the minimum
qualifications as Matriculation in addition to Basic
Training. Government school teachers who, under the
1937-Rules, were recruited by the Director of Public
Instruction, were since 1954 selected by the Selection
Board after their initial pay had been raised from Rs 47½
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to Rs 50 per month. The Local Bodies teachers, on the
other hand, were recruited by Inspectors in consultation
with the Presidents or Chairmen of those bodies till July
1957 when fresh appointments in vacancies falling in
those schools were stopped. Under the new Rules of 1955,
Government provided for a selection grade for 15% posts.
In fact, such a grade was given to them even before 1955-
Rules were framed and the new rules merely continued
that benefit. Broadly speaking, the position on October 1,
1957, was that the two categories of teachers formed
distinct classes. Though they were performing similar
duties, they could not be said to form one integrated class.
29. The question then is, whether in spite of the
Government school teachers and the provincialised
teachers forming two distinct classes on October 1, 1957,
they were, during the period between that date and
February 13, 1961, integrated into one class, which was
split up into two cadres by those Rules? It would perhaps
appear from the statement of the Education Minister made
at the Press Conference on the eve of provincialisation that
Government had in the beginning the idea of bringing
about integration between the two types of teachers. But
no such concrete decision was ever taken. A few dates at
this stage may clarify the position. As aforesaid, the
decision to provincialise the local bodies schools was
taken on July 19, 1957. In pursuance of that decision.
Government on August 2, 1957, placed a ban against any
fresh recruitment of teachers in the Local Bodies schools.
On September 27, 1957, the Governor sanctioned the
scheme of provincialisation and at the same time
sanctioned 20,000 and odd new posts to absorb the
existing staff of the provincialised schools. Simultaneously
with the provincialisation, the Government on October 1,
1957, gave the same scales of pay to the provincialised
teachers as were available to government schools teachers.
The problem, however, was how to fix and adjust the
provincialised teachers in government service and fix their
inter se seniority as also their seniority vis-a-vis the
government schools teachers.
30. It is fairly clear from the memorandum published
along with 1961-Rules that Government was seeking to
discover a proper formula to solve these questions. This
process was, it appears, going on since November 23,
1959, when alternative proposals were framed for
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discussion and those proposals were communicated to the
recognised associations of the teachers. Since no agreed
consensus was forthcoming from the teachers themselves,
Government formed its own decisions as formulated by
the Secretary, Education Department in his letter of
January 27, 1960, to the Director of Public Instruction.
These decisions were made around three basic principles:
(i) that the two cadres will continue to be separate as
before; (ii) that the provincialised cadre would be a
diminishing cadre; and (iii) following upon (i) and (ii),
vacancies arising as a result of promotions, retirements,
resignations, etc., in the provincialised cadre should be
transferred to the State cadre so that ultimately after about
thirty years the provincialised cadre would vanish
altogether leaving the State cadre alone in the field. These
events leave no doubt that at no time after October 1,
1957, any decision for integrating the two categories of
teachers was taken although after October 1, 1957, new
teachers were appointed and posted in both the
provincialised as well as government schools who carried
out the same duties and were given the same scales of pay
as the provincialised teachers. But such new teachers had
to be deemed to have been appointed in the State cadre by
reason of the two principles decided upon by the
Government, (i) the diminishing character of the
provincialised cadre, and (ii) that cadre having been frozen
from even before October 1, 1957. Thus, the two
categories continued to be separate and were never
integrated. The Government schools teachers and those
appointed after October 1, 1957, were governed by 1955-
Rules while the provincialised teachers continued to be
presumably governed by the District Boards’ Rules until
new rules were framed for them by Government. Thus the
Rules of 1961 could not be said to have split up the
teachers, who formed one integrated cadre into two new
cadres. These Rules had to be made as the inter-seniority
among provincialised teachers appointed by different local
bodies in different districts had to be determined and their
position in the service had to be adjusted. The Rules were
framed on the principles formulated in the decisions taken
by Government on July 27, 1960.
… … …
32. It will be observed that though the provincialised
teachers were given the same scales of pay as the teachers
in the State cadre, the Rules provided that unlike the latter
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they could be transferred only within the District where
they were serving. Those who were already confirmed
prior to the provincialisation were also deemed to be
confirmed under these Rules. That meant that for purposes
of their seniority their entire service, including service
before such confirmation would be taken into account,
except that inter se seniority of those promoted to the
selection grade was to be determined from the date of their
confirmation in that grade.
33. Thus, although the teachers in both the cadres were
given the same scales of pay and did the same kind of
work and those appointed after October 1, 1957, were
posted and worked in the same provincialised schools as
teachers in the provincialised cadre, the fact was that the
State cadre teachers were and continued to be governed by
1955-Rules while the provincialised teachers were
governed by 1961-Rules. This fact, coupled with the fact
that one was a district and the other a divisional cadre,
meant that the two cadres continued to be separate cadres
as before. The principal effect of the new Rules, however,
was that the number of posts in the cadre would gradually
diminish and together with that the total number of posts
in the selection grade, despite the percentage of fifteen
remaining intact. But that was the inevitable result of the
freezing of the cadre, on the one hand, and its being a
diminishing cadre on the other. The State cadre became
correspondingly an expanding cadre, the total number of
posts for all the schools, Government and provincialised,
remaining more or less constant.
… … …
35. The controversy thus really turns on the question
whether Government was bound to integrate the two
categories of teachers into one and not to continue them as
separate cadres as before, and whether its refusal to do so
meant violation either of Article 14 or Article 16. It is true
that notwithstanding this Court upholding the validity of
the 1961-Rules in Punjab v. Joginder, the then
Government of Punjab in 1965 adopted a uniform running
scale for both the cadres of Rs 60-Rs 175 with a common
15% for higher grade posts. But that decision has nothing
to do with the question of the validity of 1961-Rules, and
if those Rules were valid, with the validity of the decision
of the new State of Haryana to implement those Rules
instead of the common running scale adopted by Punjab
State.
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36. The principles on which discrimination and breach of
Articles 14 and 16 can be said to result have been by now
so well settled that we do not think it necessary to repeat
them here once again. As already seen, ever since 1937
and even before, the two categories of teachers have
always remained distinct, governed by different sets of
rules, recruited by different authorities and having,
otherwise than in the matters of pay-scales and
qualifications, different conditions of service. This
position remained as late as February 13, 1961. On that
day whereas the State cadre teachers were governed by
1955-Rules, rules had yet to be framed for the
provincialized teachers. The two cadres thus being
separate, Government was not bound to bring about an
integrated cadre especially in view of its decision of
making the provincialized cadre a diminishing one and
bringing about ultimately through that principle one cadre
only in the field in a phased manner. If through historical
reasons the teachers had remained in two separate
categories, the classification of the provincialized teachers
into a separate cadre could not be said to infringe Article
14 or Article 16. It was also not incumbent on the
Government to frame the 1961-Rules uniformly applicable
to both the categories of teachers, firstly, because a ruleframing authority need not legislate for all the categories
and can select for which category to legislate (See
Sakhawat Ali v. State of Orissa (1955) 1 SCR 1004 ;
Madhubhai Amathalal Gandhi v. Union of India (1961) 1
SCR 191 and Vivian Joseph Ferreira v. Municipal
Corporation of Greater Bombay (1972) 1 SCC 70) and
secondly, because it had already come to a decision of
gradually diminishing the provincialized cadre so that
ultimately only the State cadre would remain in the
service. That was one way of solving the intricate
difficulty of inter-seniority. There can be no doubt that if
there are two categories of employees, it is within
Government’s power to recruit in one and not recruit in the
other. There is no right in a government employee to
compel it to make fresh appointments in the cadre to
which he belongs. It cannot also be disputed that
Government had the power to make rules with
retrospective effect, and therefore, could provide therein
that appointments made between October 1, 1957 and
February 13, 1961, shall be treated as appointments in the
State cadre. That had to be done for the simple reason that
the provincialized cadre was already frozen even before
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October 1, 1957 and Government had decided not to make
fresh appointments in that cadre since that cadre was to be
a diminishing one.
… … …
40. Regarding Respondents 37 to 96, all of them were
appointed after provincialisation. They are junior in
service than the petitioners and some others in the
provincialised cadre. But their case is not comparable, for,
they were appointed under 1955-Rules and through the
recruitment authorities prescribed under those rules i.e. the
Selection Board. Obviously, they could not be appointed
in the provincialised cadre as that had been frozen even
before October 1, 1957. They may have been posted in the
provincialised schools but that cannot mean that they were
appointed in that cadre. Their appointment being in a
separate cadre, it is impossible to say that they were
similarly situated. By reason of their recruitment in the
State cadre, their conditions of service, including their
promotional chances and their seniority would be
governed by 1955-Rules and would only be comparable to
those in that cadre only.”
74. Heavy reliance was placed on the aforesaid decisions by the
learned Attorney General and the learned counsel who appeared for the
State. It was submitted that though the teachers in provincialized cadre
and the State cadre were doing similar duties and discharging identical
responsibilities and though, they were as a matter of fact drawing similar
pay and emoluments, the services were considered to be distinct and
different. The feature that one of the cadres was to be a dying or
vanishing cadre was also present in those cases. It was accepted by this
Court that the State was within its Rights to let a particular service or
cadre be a dying or vanishing cadre and keep making appointments in
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other service while maintaining distinct identities of both the services,
even when the teachers coming from the both the cadres were doing
identical jobs. Though, strictly speaking, those two matters did not
involve concept of ‘equal pay for equal work’, these cases do point that
the State can validly make such distinction or differentiation. The learned
Attorney General and the learned counsel appearing for the State were,
therefore, justified in placing reliance on these two decisions. It is also
evident that the subsequent judgments have not noted the decisions of this
Court in Joginder Singh28
and Zabar Singh29. For the purposes of present
discussion, we will proceed on the basis that even when the teachers from
both the cadres were discharging similar duties and responsibilities, the
decision of the State government to maintain different identities of these
two cadres was not found objectionable by this Court and further there
could be inter se distinctions between these two cadres. It is true that both
the cadres were enjoying same pay structure but the submission that the
chances of promotion ought to be similar was not accepted by the Court.
75. We must also consider observations of this Court in paragraph 12
in its decision in Secretary, Finance Department and others vs. West
Bengal Registration Service Association and others8
, which bring out how
a ‘pay structure’ is evolved. The relevant portion of said paragraph was:-
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12. … … Ordinarily a pay structure is evolved keeping in
mind several factors, e.g., (i) method of recruitment, (ii)
level at which recruitment is made, (iii) the hierarchy of
service in a given cadre, (iv) minimum
educational/technical qualifications required, (v) avenues
of promotion, (vi) the nature of duties and responsibilities,
(vii) the horizontal and vertical relativities with similar
jobs, (viii) public dealings, (ix) satisfaction level, (x)
employer’s capacity to pay, etc. We have referred to these
matters in some detail only to emphasise that several
factors have to be kept in view while evolving a pay
structure and the horizontal and vertical relativities have to
be carefully balanced keeping in mind the hierarchical
arrangements, avenues for promotion, etc. Such a carefully
evolved pay structure ought not to be ordinarily disturbed
as it may upset the balance and cause avoidable ripples in
other cadres as well. … …”
76. We, therefore, have to proceed on the following basic premise:-
a) It was open to the State to have two distinct cadres namely that of
‘Government Teachers’ and ‘Niyojit Teachers’ with Government
Teachers being a dying or vanishing cadre. The incidents of these
two cadres could be different. The idea by itself would not be
discriminatory.
b) The pay structure given to the Niyojit Teachers was definitely lower
than what was given to Government Teachers but the number of
Government Teachers was considerably lower than the number of
Niyojit Teachers.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
136
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
As stated above, presently there are just about 66,000
Government Teachers in the State as against nearly 4 lakh Niyojit
Teachers. There is scope for further appointment of about 1 lakh
teachers which could mean that as against 5 lakh teachers the
number of State Teachers would progressively be going down.
c) The parity that is claimed is by the larger group with the lesser
group as stated above which itself is a dying or a vanishing cadre.
d) The mode of recruitment of Niyojit Teachers is completely different
from that of the Government Teachers as stated above.
77. If a pay structure is normally to be evolved keeping in mind factors
such as “method of recruitment” and “employer’s capacity to pay” and if
the limitations or qualifications to the applicability of the doctrine of ‘equal
pay for equal work’ admit inter alia the distinction on the ground of
process of recruitment, the stand taken on behalf of the State Government
is not unreasonable or irrational. Going by the facts indicated above and
the statistics presented by the State Government, it was an enormous task
of having the spread and reach of education in the remotest corners.
Furthermore, the literacy rate of the State which was lagging far behind the
national average was also a matter which required attention. The advances
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
137
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
made by the State on these fronts are quite evident. All this was possible
through rational use of resources. How best to use or utilise the resources
and what emphasis be given to which factors are all policy matters and in
our considered view the State had not faltered on any count. As laid down
by this Court in the decisions in Joginder Singh28 and Zabar Singh29, the
State was justified in having two different streams or cadres. The attempt
in making over the process of selection to Panchayati Raj Institutions and
letting the cadre of State Teachers to be a dying or vanishing cadre were
part of the same mechanics of achieving the spread of education. These
issues were all part of an integrated policy and if by process of judicial
intervention any directions are issued to make available same salaries and
emoluments to Niyojit Teachers, it could create tremendous imbalance and
cause great strain on budgetary resources.
78. It is true that the budgetary constraints or financial implications can
never be a ground if there is violation of Fundamental Rights of a citizen.
Similarly, while construing the provisions of the RTE Act and the Rules
framed thereunder, that interpretation ought to be accepted which would
make the Right available under Article 21A a reality. As the text of the
Article shows the provision is essentially child-centric. There cannot be
two views as regards the point that Free and Compulsory Education ought
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
138
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
to be quality education. However, such premise cannot lead to the further
conclusion that in order to have quality education, Niyojit Teachers ought
to be paid emoluments at the same level as are applicable to the State
Teachers. The modalities in which expert teachers can be found, whether
by giving them better scales and/or by insisting on threshold ability which
could be tested through examinations such as TET Examination are for the
Executive to consider.
79. In our considered view, there has been no violation of the Rights of
the Niyojit Teachers nor has there been any discrimination against them.
We do not find that the efforts on part of the State Government could be
labelled as unfair or discriminatory. Consequently, the submissions as to
how the funds could and ought to be generated and what would be the
burden on the State Government and the Central Government, do not arise
for consideration.
In our view, great strides have been made by the State in the last
decade. It has galvanised itself into action and not only achieved the
objectives of having schools in every neighbourhood but has also
succeeded in increasing the literacy rate. It has also succeeded in having
more girl children in the stream of education and consequently the TFR, as
indicated above, has also improved to a great extent. If these are the
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
139
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
benefits or rewards which the society stands to gain and achieve, the State
ought to be given appropriate free play. The tabular charts placed on
record by the State also show continuous improvements made by the State
in the packages made available to the Niyojit Teachers. Said attempts also
show that the State is moving in the right direction and the gap which is
presently existing between the Government Teachers and the Niyojit
Teachers would progressively get diminished. Considering the large
number of Niyojit Teachers as against the Government Teachers, the steps
taken by the State as evident from various tabular charts presented by it are
in the right direction. At this juncture, any directions as have been passed
by the High Court, may break even tempo which the State has consistently
been able to achieve.
80. At the same time, the submission that at the initial stage the Niyojit
Teachers are given such emoluments which are lesser than peons and
clerks in the same school is a matter which requires attention. It is true that
after having put in two years of service, the emoluments made available to
Niyojit Teachers show some improvements but the disparity at the initial
stage is more than evident. The State may certainly be entitled to devise a
pay structure for Niyojit Teachers and the courts may not interfere in
policy matters but, if there is an imbalance of the nature as presented
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
140
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
before this Court, the matter raises concern. The teachers must be entitled
to decent emoluments. In the chart referred to in para 32(c) above, after
two years of service with proposed enhancement as per recommendations
of the three member Committee the scales payable to Niyojit Teachers
would show some increase as against those in respect of peons and clerks.
The State may consider raising the scales of Niyojit Teachers at least to the
level suggested by the Committee, without insisting on any test or
examination advised by the Committee. Those who clear such test or
examination, may be given even better scales. This is only a suggestion
which may be considered by the State.
81. In the circumstances, we allow these appeals preferred by the State,
set aside the judgment and order under appeal and dismiss the Writ
Petitions preferred on behalf of Niyojit Teachers.
82. In the end, we must express our sincere gratitude for the assistance
rendered by all the learned counsel who appeared in the matters. We are
grateful to all the learned counsel.
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
141
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
83. These appeals are allowed in aforesaid terms. No order as to costs.
………………………….J.
(Abhay Manohar Sapre)
………………………….J.
(Uday Umesh Lalit)
New Delhi;
May 10, 2019.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4862 OF 2019
(Arising out of S.L.P.(C) No.20 of 2018)
The State of Bihar & Ors. ….Appellant(s)
VERSUS
The Bihar Secondary Teachers Struggle
Committee, Munger & Ors. ….Respondent(s)
WITH
CIVIL APPEAL No.4872 OF 2019
(Arising out of S.L.P.(C) No.708 of 2018)
CIVIL APPEAL No.4867 OF 2019
(Arising out of S.L.P.(C) No.238 of 2018)
CIVIL APPEAL No.4866 OF 2019
(Arising out of S.L.P.(C) No.242 of 2018)
CIVIL APPEAL No.4864 OF 2019
(Arising out of S.L.P.(C) No.169 of 2018)
CIVIL APPEAL No.4865 OF 2019
(Arising out of S.L.P.(C) No.162 of 2018)
CIVIL APPEAL No.4869 OF 2019
(Arising out of S.L.P.(C) No.254 of 2018)
1
CIVIL APPEAL No.4863 OF 2019
(Arising out of S.L.P.(C) No.164 of 2018)
CIVIL APPEAL No.4868 OF 2019
(Arising out of S.L.P.(C) No.251 of 2018)
CIVIL APPEAL No.4870 OF 2019
(Arising out of S.L.P.(C) No.240 of 2018)
AND
CIVIL APPEAL No.4871 OF 2019
(Arising out of S.L.P.(C) No.572 of 2018)
J U D G M E N T
Abhay Manohar Sapre, J.
1. I have had the advantage of going through an
elaborate, well considered and scholarly drafted
judgment proposed by my esteemed brother Justice
Uday Umesh Lalit.
2. I entirely agree with the reasoning and the
conclusion, which my erudite brother has drawn,
which are based on remarkably articulate process of
reasoning. However, having regard to the nature of
the controversy involved in these appeals, which
was ably argued by senior lawyers in their
2
respective submissions, I wish to add a few words of
mine.
3. This case reminds me of the apt observations
made by an eminent Judge of this Court, Vivian
Bose J., in his concurring opinion in the case of
Bidi Supply Co. vs. Union of India & Ors., AIR
1956 SC 479. The learned Judge made these
observations while examining the object and the
scope of Article 14 of the Constitution of India.
4. In his immaculately and distinctive style of
writing, the learned Judge made the observations in
paras 15 and 16, which read as under:
“15. With the utmost respect all this seems
to me to break down on a precise analysis,
for even among equals a large discretion is
left to judges in the matter of punishment,
and to the police and to the State whether to
prosecute or not and to a host of officials
whether to grant or withhold a permit or a
licence. In the end, having talked learnedly
round and around the article we are no wiser
than when we started and in the end come
back to its simple phrasing—
“The State shall not deny to any
person equality before the law or
3
the equal protection of the laws
within the territory of India.”
16. The truth is that it is impossible to be
precise, for we are dealing with intangibles
and though the results are clear it is
impossible to pin the thought down to any
precise analysis. Article 14 sets out, to my
mind, an attitude of mind, a way of life,
rather than a precise rule of law. It embodies
a general awareness in the consciousness of
the people at large of something that exists
and which is very real but which cannot be
pinned down to any precise analysis of fact
save to say in a given case that it falls this
side of the line or that, and because of that
decisions on the same point will vary as
conditions vary, one conclusion in one part
of the country and another somewhere else;
one decision today and another tomorrow
when the basis of society has altered and the
structure of current social thinking is
different. It is not the law that alters but the
changing conditions of the times and Article
14 narrows down to a question of fact which
must be determined by the highest Judges in
the land as each case arises. (See on this
point Lord Sumner’s line of reasoning in
Bowman vs. Secular Society Ltd., 1917 AC
406. Always there is in these cases a clash of
conflicting claims and it is the core of the
judicial process to arrive at an
accommodation between them. Anybody can
decide a question if only a single principle is
in issue. The heart of the difficulty is that
there is hardly any question that comes
before the Courts that does not entail more
than one socalled principle. As Judge
Leonard Hand of the United States Court of
Appeals said of the American Constitution.”
4
5. The aforesaid observations of Justice Vivian
Bose, therefore, should always be kept in mind
while deciding the question of the nature arising in
every case including the one at hand.
6. As rightly held by brother Lalit J., the issue
involved in these appeals is answered by two
decisions of the Constitution Bench of this Court,
namely, State of Punjab vs. Joginder Singh,
1963 Suppl(2) SCR 169 and Zabar Singh & Ors. vs
State of Haryana and Ors. (1972 ) 2 SCC 275.
7. In my view also, the issue, which is subject
matter of these appeals, has to be decided keeping
in view the law laid down by this Court in the
aforementioned two decisions of the Constitution
Bench.
8. I may, at this stage, refer to a decision in N.
Meera Rani vs. Govt. of Tamil Nadu & Anr., AIR
1989 SC 2027. In this case, it was argued that the
5
question involved in the appeal is governed by the
decision of the Constitution Bench in Rameshwar
Shaw vs. District Magistrate, Burdwan, AIR 1964
SC 334. It is pertinent to mention that the same
question was also decided by this Court but it was
decided subsequent to the decision of the
Constitution Bench in many other cases. The later
decisions on the same question were, however,
rendered by the Benches comprised of lesser
number of the Judges.
9. Justice J.S. Verma (as His lordship then was),
speaking for Three Judge Bench, held that the
question involved in the appeal before them has to
be, therefore, decided in the light of law laid down
by the Constitution Bench because firstly, it is a
decision rendered by the Constitution Bench;
Secondly, it is prior in point of time; and thirdly, the
law laid down in later decisions has to be read in
6
the light of the law laid down by the Constitution
Bench. This is what His Lordship said in para 13:
“13. We may now refer to the decisions on
the basis of which this point is to be decided.
The starting point is the decision of a
Constitution Bench in Rameshwar Shaw v.
District Magistrate, Burdwan, AIR 1964 SC
334. All subsequent decisions which are cited
have to be read in the light of this
Constitution Bench decision since they are
decisions by Benches comprising of lesser
number of Judges. It is obvious that none of
these subsequent decisions could have
intended taking a view contrary to that of
the Constitution Bench in Rameshwar Shaw
case.”
10. Keeping in view the law laid down in N.
Meera Rani (supra), I am of the view that the
question involved in these appeals needs to be
decided in the light of the law laid down by two
decisions of the Constitution Bench rendered in
Joginder Singh (supra) and Zabar Singh (supra).
11. Though the learned counsel for the
respondents made sincere attempts on their part in
contending that the law laid down in Joginder
7
Singh (supra) and Zabar Singh (supra) has no
application to the question involved in these appeals
because the facts involved therein are not similar to
the facts involved in these appeals, we are afraid, we
cannot accept this submission. In my opinion, it is
not so.
12. Brother Lalit,J. has dealt with this question
elaborately in paras 72 to 74 of his opinion. I
respectfully concur with his reasoning contained
therein.
13. I am also, therefore, of the view that the
appeals deserve to be allowed and are accordingly
allowed. The impugned judgment is set aside and
the writ petitions filed by the respondents before the
High Court are dismissed.
.………...................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
May 10, 2019
8
