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                     REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil     Appeal     Nos.     8226-8227      OF     2012   Arising     Out     of      

 SLP     (C)     Nos.     26675-26676/2010   WITH

I.A.     Nos.     19-20/2011   

Bihar State Government Secondary School Teachers Association ...   Appellant

Versus

Bihar Education Service Association & Ors. ...         Respondents

And Contempt     Petition     Nos.     386-387/2011   

Bihar State Government Secondary School Teachers Association  ...    Appellant/Applicants

Versus  

Anup Mukherjee & Ors. ...    Respondents        (Alleged Contemnors)

J U D G E M E N T

H.L. Gokhale J.   

Leave granted.

2. These two Civil Appeals by Special Leave raise the question  

with respect to the approach the High Courts and the State

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Governments are expected to adopt towards the orders passed, and the  

interpretations of Govt. resolutions rendered by this Court.  The  

question arises in the context of litigation concerning the promotional  

avenues for the teachers in Bihar Government Service.

The     relevant     facts:-   

3. The facts leading to the two Civil Appeals herein are as  

follows:-

The State of Bihar, which is respondent No.66 in these two  

appeals, set up a three member committee, in March 1976, with Shri  

Saran Singh, Member Board of Revenue, and Administrative Reforms  

Commissioner, as its Chairman.  The terms of reference of this  

Committee were as follows:-

“To hasten the avenues for promotion in the  Bihar Civil Services, the government has approved junior  selection grade 20%, senior selection grade 12.50% and  posts of senior Deputy Collector 2.5%.  The same  percentage has been applied for junior selection grade and  senior selection grade in the Bihar Engineering Service.  On  this basis, requests have been coming from various state  services associations that due to lack of opportunity for  promotion in their cadres, there is stagnation, which must  be removed.

1.2 Hence, keeping in view the strength and present  promotional avenues in various State service cadres, to  analyse the problem of stagnation and to  recommend means to tackle this problem and

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promotional opportunities, a committee of the following  officers is constituted:-

(1) Member, Board of Revenue-Chairman (2) Chairman, Public Grievances Bureau- Member (3) Finance Commissioner- Member”

4. The committee drew its conclusions on the basis of the facts  

and figures furnished by various departments.  As stated in the report,  

the approach of the committee was to find out:-  

(a) what relatively, is the extent of stagnation in different services, and  

the present prospects of promotion, and  

(b) how the stagnation can be removed and promotional opportunities  

enlarged.

5. The committee noted that all the service associations staked  

claims for the same percentage of the promotional posts as allowed to  

Bihar Civil Service and Bihar Engineering Service.  Two of the reasons  

for stagnation noted by the committee were: (i) relatively heavy  

recruitment of officers of the same age group in certain years, (ii) and  

lack of adequate number of promotional posts at different levels of the  

organizational hierarchy.  The recommendations of the committee with  

respect to various services are in part III of its report.  As far as Bihar  

Education Service is concerned, it has been discussed in para (9),  

thereof. To begin with, the committee dealt with the promotional

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chances of Class-II officers into Class-I.  Then in sub-para B it has dealt  

with the posts in specialized institutes like those teaching Sanskrit,  

Prakrit and Persian.  Thereafter in sub-para C it has dealt with the  

Miscellaneous Cadre.  The analysis in this part and the  

recommendations read as follows:-  

“C. Miscellaneous cadre 11.10. This service consists of 59 posts of different  

categories like teachers, engineers, Doctors, Stadium  Manager, etc. and excepting the teachers of Netarhat  School who have adequate prospects of promotion within  the cadre, most of the members of the cadre hold isolated  posts with no definite prospect of promotion.  No  promotional posts can be provided for because of the  isolated nature of their job.

In order, however, to minimize the hardships in their  case, the committee would like to make the following  suggestion for consideration of the Education Department:-

(1) Education department may get the posts of  engineers included in the cadre of the Public  Works Department and obtain their services on  deputation basis.

(2) The two posts of the doctors may also be got  included in the Health service and service of  doctors obtained on deputation basis.

(3) The remaining posts should be included in the  General cadre and manned by officers of the  Bihar Educational Service as far as practicable.”

The committee suggested that the proposals should come into  

effect from 1st January, 1977.

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6. The recommendations of the committee were accepted by  

the State Government, and the State Government (Finance  

Department) issued a notification dated 11.4.1977, which was  

subsequently published in the Gazette Extra-Ordinary on 27.4.1977.  

The decision with respect to the recommendations was contained in  

Schedule-1 of the notification.  As far as the education department and  

the miscellaneous cadre are concerned, the decision notified reads as  

follows:-

Schedule-1

Sr. No.

Para No.  of  committ ee report

Pag e  No.

Departme nt

Name  of  servic e

Recommendation the Committee Govt.  Decision

1 2 3 4 5 6 7 7 1.10 25 Education  

Departme nt

Misc.  Cadre

1) kindly merge the post of the  Engineers of the Education  Department into Bihar  engineering Services Cadre and  take the Services of the  Engineers by means of  Deputation

Approved

2) The posts of doctors should be  included in the Bihar Health  Services cadre and as per the  requirement their service should  also be taken on deputation

Approved

3) Various Posts such as  Teacher (except the teachers of  Netarhat) and the posts  of  Stadium managers etc should  be included in the Bihar  Education Service cadre and  the Officers of the cadre  should be appointed on these  posts  

Approved

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  (emphasis supplied)

First     round     of     litigation   

7. It is the case of the petitioner Secondary School Teachers  

Association that, though this notification was issued by the State  

Government on 11.4.1977, the State Government took no steps to  

implement the same.  They represented for its implementation from  

time to time, but that was without any effect.  They learnt that one  

provisional gradation list was prepared in the year 1986, but it was  

never circulated or made known to the Petitioner association.  Another  

gradation list was prepared in 1995, and they found that the same had  

left out the members of the Petitioner association.  Two representations  

were once again made, including one on 25.5.1998, but that was also  

without any effect.  Therefore, they were constrained to file the Writ  

Petition, bearing No.12122 of 1998, against the State of Bihar and  

the concerned officers.  In this petition they specifically claimed (a) that  

the aforesaid notification of 11.4.1977 contemplated a merger of their  

cadre into Bihar Education Service which consists of class-II employees,  

and (b) that any appointment and further promotions are to be made  

from the combined cadre.  The petition therefore prayed:-

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(1) for a direction to implement the decision contained in the  

notification dated 11.4.1977.

(2) for a direction to prepare a combined gradation list of the Bihar  

Education Service Class II after placing the members of the Petitioner  

association in their appropriate places along with other constituents.

(3) to restrain the respondents from acting upon the defective  

gradation list of 1995

(4) for the consequential reliefs, which meant increase in salary and  

allowances pursuant to the recommendations of the Pay Revision  

Committees appointed from time to time.

8. It is relevant to note that in this petition they specifically  

pleaded in para 5 that they were also selected through Public Service  

Commission/ Central Selection Board, and that they also had  

qualifications of being graduates with necessary training, and further  

that from 1965 onwards they also had to have a Master’s degree.  In  

para 6 of the petition they submitted that the Saran Singh committee  

had recommended the merger, despite which the defective gradation  

lists were prepared, first on 19.7.1986 and thereafter on 13.11.1995,  

contrary to the notification of 11.4.1977.

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9. Another Writ Petition bearing CWJC No.8147/1999 was  

filed by some teachers viz. Smt. Ratan Prabha and Ors.  This petition  

drew attention to the issue of pay anomaly.  They also relied upon the  

notification of 11.4.1977, and prayed for preparation of a common  

seniority list for Bihar Education Service.  Both the Writ Petitions were  

heard together.  The State Government did not file any counter in spite  

of adequate time having been granted.  The learned Single Judge of  

Patna High Court, observed in his order that it appears that the orders  

of merger had not been issued, and the matter was pending with the  

State Government, though in the meantime separate gradation list had  

been published for one or the other teaching cadre.  The learned single  

judge therefore, passed the following order dated 2.2.2000:-

“In the circumstances, I direct the commissioner cum  Secretary, Secondary, Primary and Mass Education,  government of Bihar to act upon the government decision  contained in Resolution dated 11.4.1977 so far it relates to  the Education Service of the Education Department.”

10. The State of Bihar felt aggrieved by this common order  

passed in the two Writ Petitions, and therefore filed two Letters Patent  

Appeals No.980 and 998 of 2000. The State Government contended  

that there was no proposal to merge the sub-ordinate teachers into the  

Bihar Education Service Class-II. It was further pointed out that 50%

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posts of Bihar Education Service Class-II were filled by the promotion of  

the subordinate teachers.  This was however, denied by the appellants  

herein by pointing out that factually however, hardly any such  

promotions had taken place.  They also pointed out that the notification  

dated 11.4.1977 had been implemented in other services in the manner  

in which they were canvassing. The Division Bench dismissed these two  

appeals by order dated 27.11.2000, wherein it observed:-

“In our view, since this court by order dated 2.2.2000  has specifically directed the Government to take a decision  in terms of the resolution dated 11.4.1977, there appears  no reason for the State to be aggrieved by such order.”

11. The State Government carried the matter further to this Court  

in SLP Nos.4937-4938/2001, and this Court dismissed the two SLP’s  

by its order dated 16.4.2001 which reads as follows:-

                “CORAM:  

                Hon’ble  Mr. Justice B.N Kripal

Hon’ble. Mrs Justice Ruma Pal

“Upon hearing the counsel the court made the following ORDER

It is clear that the final direction which has been  given to the Petitioner to implement the resolution  dated 27th April, 1977 in the manner it is meant to be  implemented.  The petitions are disposed of.”

Second     round     of     litigation  

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12. It is, however, seen that inspite of the orders passed as  

above, State of Bihar did not issue the necessary orders for merger of  

the subordinate cadre of teachers into the Bihar Education Service, and  

consequential rise in pay.  This led a subordinate-service teacher, one  

Shri Janardan Rai, to file a fresh Writ Petition, being CWJC No.8679  

of 2002.  He referred to the orders passed above, and prayed for  

consequential benefits along with fixation of pay in terms of the State  

Government Notification dated 11.4.1977, and in terms of the order  

dated 2.2.2000 passed in above referred CWJC No.12122 of 1998, which  

had been upheld by the Supreme Court.

13. This petition was opposed by the Additional Finance  

Commissioner of the State of Bihar, by filing an affidavit.  In para 13, he  

specifically stated that the decision contained in the aforesaid  

notification is not at all related to the non-gazetted cadre of teachers of  

Government High Schools, and therefore, implementation of the order  

of the Hon’ble Court does not require merger of the Subordinate  

Education Service with the Bihar Education Service.  In para 25, he  

contended that the word ‘teachers’ mentioned in Item No.7 of Schedule-

1 of the notification of 1977 referred to those isolated posts of teachers  

who had been part of the umbrella service, namely, Bihar Education

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Service, but who did not have any proper cadre, and therefore had no  

opportunities of promotion available to them.  In para 26 he contended  

that the Saran Singh Committee report had made clear that the report  

was exclusively about the cadres within the Gazetted State Services.   

14. The Director (Administration) cum Deputy Secretary, the  

Department of Secondary, Primary and Mass Education of Government  

of Bihar, filed two affidavits.  In the first affidavit, he stated in para 4(c)  

that in the notification there is no mention of 59 posts, and hence the  

confusion arose.  He further stated that the Government had, therefore,  

decided to locate those 59 posts by an advertisement and call for  

information.  In para 6/A of the second affidavit, however, he stated that  

there was no mention of any merger in the notification.

15. The learned Single Judge who heard the petition referred to  

the earlier orders up to the Supreme Court, and then observed that, in  

view thereof, the matter should have attained finality.  He further  

observed that it was really unfortunate that the state had again started  

giving its own different meaning to interpret the aforesaid orders, rather  

going to the extent of even stating that some shadow-boxing had been  

done in the High Court and the Supreme Court, to obtain certain orders.  

He stated that it appeared from the notings on the files of the State

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Government that the Education Department had, in fact, taken a  

decision to implement the aforesaid notification, and prepared a draft  

notification for the approval of the Finance Department, so that the  

orders of the High Court, for implementing the notification of 11.4.1977,  

are complied with.  He also recorded that the said draft notification  

speaks of about 2465 sanctioned/ created posts. He stated-   

“…The said draft clearly goes to show that the Education  Department has found that the petitioner and other similarly  situated persons were also required to be merged in the Bihar  Education Service, in view of the aforesaid resolution.  However, final approval of the Finance Department was  sought for, before final direction was issued in this regard.  The said resolution speaks about 2465 sanctioned/created  posts.  As such it appears that the only obstacle which  remains in non-implementation of the resolution is concerned  is the functionaries of the Finance Department, who are giving  a different meaning to the said resolution.”

16. The Learned Judge, therefore, heard the arguments of the  

counsel for the Finance Department exhaustively, and observed that if  

the meaning, which is tried to be given to the notification dated  

11.4.1977, is to be accepted, the whole notification relating to the Bihar  

Education Service would become redundant.  That apart, he observed  

“today it does not lie in the mouth of authorities to give it any other  

interpretation rather they are sitting over the orders of the High Court,  

as well as the Supreme Court.”   He, therefore, directed them to

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implement the notification of 1977 in its totality, within a period of six  

weeks, failing which, they would be liable to be proceeded for violation  

of the said order and the order dated 2.2.2000, as well as the orders of  

the LPA Bench and the Supreme Court of India.  He granted liberty to  

the petitioner to bring a petition before the Court in that very writ  

application itself, so that, if necessary erring respondents can be  

proceeded against in accordance with law.

17. This order was again challenged by the State Government in  

LPA No.65/2003. Additional grounds were raised in the LPA.  One of  

them was that if the interpretation of the term ‘teachers’  accepted by  

the learned single judge was approved, it will lead to the teachers other  

than those in Government service claiming the benefits of Bihar  

Education Service Class-II.  Secondly, it was contended that the  

subordinate education service was not a state service. The Division  

Bench of the High Court however, dismissed the LPA by its order dated  

10.3.2003, observing that the controversy had already attained finality  

with the order of the Supreme Court and nothing more was required to  

be recorded before passing this order.  However, in the meanwhile  

Division Bench had also passed an order dated 27.1.2003 directing the  

Chief Secretary, Government of Bihar and Director Administration of

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Bihar to remain present in the appeal to explain the non-

implementation.   

18. These two orders led the State Government to file Civil  

Appeal No.4466/2003, wherein the earlier grounds were reiterated.  A  

counter was filed on behalf of Janardhan Rai & Ors. by the Gen. Secy. Of  

the Bihar State Government Secondary School Teachers Association  

which had been impleaded as a respondent by an order passed by this  

Court.  Therein it was specifically stated in paragraph 13 as follows:-

“…… Thus, since the members of the Respondent  Association belonged to a clearly identifiable cadre known  as “B.S.E.S Cadre” and were not part of any isolated post  and also since their posts were not declared “Gazetted”- then, they clearly fell within the purview of those State  services covered by the Saran Singh Committee.  It is also  relevant to mention here that the term “State Service”  used by the Petitioners has not been defined anywhere.  This is evident from the Fitment Committee report,  Government of Bihar published in 1998.  Thus in the  absence of any special definition, the words “State  Service”  would mean Government Service of the State  regulated by State Service Code.”  

The Civil Appeal was dismissed by this Court by its order dated  

19.4.2006 which we quote in the entirety:-

“IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4466 OF 2003

STATE OF BIHAR & ORS. …APPELLANTS

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VERSUS JANARDAN RAI & ANR …RESPONDENTS

ORDER

Heard learned counsel on both sides. That a Government Resolution passed in 1977 has not  

yet been implemented and continues to be the subject  matter of a spate of litigation, despite 14 orders of  different Courts, is something that shocks the conscience  of this Court.

The Order of the High Court in Letters Patent Appeal,  which has resulted in the present Appeal is a short (one  paragraph) order, but the background appears to be  voluminous.  Learned counsel on both sides have taken us  through the various documents on record.  After patiently  plodding through the record and the various orders, the  only point that needs to be considered is, whether the  Resolution No 3521 F2 dated 11th April, 1977 of the State  Government has been  implemented in respect of the  Members of the Bihar Subordinate Education Service  comprising Male and Female teachers.  According to the  Respondents, its implementation would mean merger of  the cadre of teachers belonging to the Bihar Subordinate  Education Service with the Bihar Education Service Class 2;  the stand of the State Government is that this Resolution,  which accepts and implements the report of the Saran  Singh Committee (Paragaph 11.10), has nothing to do with  the Members of the Bihar Subordinate Education Service  Cadre.

Writ Petitions were filed before the High Court  of Patna and they were allowed in favour of the  teachers holding that such merger is contemplated  in the concerned Government Resolution.  A contempt  petition was also taken out alleging non-implementation of  the High Court’s order, which had directed the State  specifically to implement the concerned Resolution dated  11th April, 1977.

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The contempt petition is still pending before the High  Court and has been stayed in the present appeal.

At the end of the day, we are satisfied that whether  the implementation has been done in the manner required  by the Resolution or not is for the High Court to decide  since the High Court is in seisin of the contempt petition.  Hence, we feel that it is not necessary for us to interfere in  the matter, particularly since our attention has been drawn  to the statements made on the floor of the legislative  assembly that the Government itself is thinking of  implementing the Resolution in the manner that is being  suggested by the Respondents.  In any event, since the  contempt petition is pending, the High Court will examine  the matter and, if satisfied that the Resolution has not  been implemented, deal with the contemnors according to  law.  In this view of the matter, we do not think that it is  necessary for us to interfere at all.

Civil Appeal is dismissed. No order as to costs.  Stay  of the contempt proceedings is vacated forthwith.

      ...……………..……J.      (B.N. Srikrishna)

   ……………….……………J. (Lokeshwar Singh Panta)

New Delhi April 19, 2006”

19. It appears that in view of this judgment of this Court in the  

second round of litigation, the State Government ultimately moved to  

take the decision as canvassed by the subordinate teachers.  The  

Cabinet took the necessary decision on 3.7.2006.  The memorandum  

prepared by the administration for the consideration of the Council of  

Ministers referred to the earlier developments in the first 10

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paragraphs.  Paragraphs 11 to 18 of this memorandum which was  

approved by the Cabinet read as follows:-

“11. The department prepared an estimate of financial  burden involved.  According to a provisional estimate the  estimated amount difference is near about Rs. 64 crore.  But  because almost all the beneficiaries have got the benefit of  first ACP therefore on this count after deducting a moderate  amount it comes to near about Rs. 48 crores 62 lakhs.  In  additional to this, so many of the beneficiaries are entitled to  get the benefit of 2nd ACP.  If they are granted, the 2nd ACP  then the estimates amount will further come down.

12. In the year 1977 the No. of total created/sanctioned  post of the male and female teachers were 2465 against  which total working strength was 1336, which decreased to  880 by the years 2006, out of this if 301 units belonging to  Jharkhand is deducted it comes to 579 only.

13. It is to be noted that in view of the provisions contained  in resolution No.3521 dated 11.04.1977 several departments  have merged the lower scales with the higher ones.  But the  incumbents of this cadre of the Education Deptt. have been  denied their promotions after 1977 which was otherwise due.  Whereas the incumbents of Inspecting Branch of this cadre  are reported to have been promoted upto 2001.

14. The officers of the Bihar Education Service in their  representation against this merger are apprehending that this  merger will harm their interest.  But the Deptt. has no such  knowledge about them to be an intervener or a party in CWJC,  LPA and SLP filed in this regard.  Most of the beneficiaries  of this merger are on the verge of retirement therefore  there is no possibility of a major harm to be caused to  the officers of the Bihar Education Service.

15. Therefore consequent upon-complying the orders of the  Hon’ble Courts it is proposed to upgrade 2465

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created/sanctioned posts of teachers of subordinate  education service male and female cadre with Bihar  Education Service Class-2 w.e.f 01.07.77.

16. The concurrence of Finance Deptt. has been  obtained.

17. The approval of the Departmental Minister has been  obtained in the proposal.

18. The approval of the council of ministers in the proposal  contained in para 15 of the memorandum is solicited.”

    (emphasis supplied)

20. Accordingly, necessary resolution was issued under the order  

of the Governor of Bihar on 7.7.2006, stating that the teachers of the  

Subordinate Education Service (Teaching Branch) male and female  

cadre, are merged into Bihar Education Service Class II w.e.f. 1.1.1977,  

in accordance with the Finance Department Notification dated  

11.4.1977, and that appropriate orders will follow after evaluating  

personal benefits arising out of the order.  A notification was also  

subsequently issued on 9.10.2006 giving effect to the above resolution  

with respect to three teachers mentioned specifically in that  

notification.

Third     round     of     litigation   

21. Now, it was the turn of the Bihar Education Service to file  

their Writ Petition bearing CWJC No.10091/2006, wherein, they

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challenged the Government resolution dated 7.7.2006 providing for the  

merger of the Bihar Subordinate Education Service into the Bihar  

Education Service Class-II.  It was contended that the Bihar Subordinate  

Education Service, to which the secondary teachers belonged was quite  

different from the Bihar Education Service Class-II.  This was on the  

footing that their modes of recruitment and minimum qualifications  

were different.  It was submitted that the merger will affect their  

seniority and therefore the decision is arbitrary and violative of Article  

14 of the Constitution. The State Government opposed this petition by  

filing an affidavit.  It was pointed out by the State Government that the  

Govt. resolution dated 7.7.2006 had been issued in view of the  

judgments of the High Court as approved by the Hon’ble Supreme  

Court.  The opinion of the Advocate General was also tendered that the  

Govt. had no option but to implement the notification of 11.4.1977 as  

regards the merger of the two services.  The intervener Bihar Education  

Service Association also opposed this petition and pointed out that the  

earlier Writ Petitions were allowed by the High Court in favour of the  

teachers holding that the merger was contemplated in the Govt.  

notification and the SLP therefrom had been dismissed.  

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22. The learned Single Judge, however, referred to the observation of  

this Court in its order dated 19.4.2006, that it was for the High Court to  

decide whether the notification of the State Govt. has been  

implemented in the manner required by the notification, and therefore  

examined the legality of the resolution dated 7.7.2006 by re-examining  

the earlier notification dated 11.4.1977.  He took the view that the Govt.  

decision accepting the recommendation of the committee as recorded  

at Serial No.7 of Schedule 1 was concerning the miscellaneous cadre  

only, and while doing that there was no occasion for State to take a  

decision about Bihar Education Service and to merge the teaching  

branch, male and female, of the Bihar Subordinate Education Service  

with the Bihar Education Service.  He therefore allowed CWJC  

No.10091/2006 by his judgment and order dated 31.10.2007 and  

quashed the resolution dated 7.7.2006.

23. Along with the above writ petition, the learned Single Judge heard  

another Writ Petition bearing CWJC No.14678/2006 which was filed by  

51 subordinate teachers who on the other hand claimed the benefit of  

the very Govt. resolution dated 7.7.2006. The learned Judge disposed of  

that petition with same common order, but directed the Govt. to

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consider their cases if they are in any way situated similar to the  

miscellaneous cadre.     

24. It is relevant to note that after this judgment and order of  

learned Single Judge dated 31.10.2007, the Govt. of Bihar came out  

with a consequential notification dated 19.11.2007 quashing the above  

Resolution No.1209 dated 7.7.2006 (which had merged the teachers of  

subordinate services into Bihar Education Service Class-II), and  

withdrawing the financial benefits flowing therefrom.   

25. Some of the individual teachers who felt aggrieved by this  

judgment and order dated 31.10.2007, filed LPAs Nos.941/2007,  

946/2007, 947/2007 and 974/2007.  As far as the Secondary School  

Teachers Association is concerned it directly filed an SLP to this Court  

against the order dated 31.10.2007, bearing SLP No.8031/2008, but this  

Court vide its order dated 16.3.2009 noted that those individual LPAs  

were pending before the High Court, and therefore granted liberty to  

the association to approach the High Court by way of LPA.  Accordingly,  

the petitioner association filed LPA No.418/2009.  All those LPAs were  

heard together.   

26. The appellant association as well as the Bihar Education  

Service Association reiterated their positions before the Division Bench.

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The appellant association principally contented that after the decision of  

the Supreme Court dated 19.4.2006, it was not permissible for the  

learned Single Judge to re-open the entire controversy, otherwise there  

would never be any finality.  The decision of the learned Single Judge  

was however defended by the Bihar Education Service Association by  

contending that no definite decision had been arrived at in the earlier  

proceedings.  As noted earlier the State of Bihar had defended, before  

the learned Single Judge, the Resolution dated 7.7.2006 approving the  

merger. However, the State changed its stand before the Division  

Bench.  As can be seen from para 38 of the judgment of the Division  

Bench, it was contended on behalf of the State Govt. that neither in the  

notification of the Finance Department dated 11.4.1977 nor in any order  

of this Court except in CWJC No.8679 of 2002 (the contempt petition  

wherein was being heard with these appeals) it had even remotely been  

decided as regards the merger of the teachers of SES in BES.  

Thereafter, the para records the stand of the State Govt. as follows:-

“As with regard to the order passed by the learned  Single Judge in CWJC No.8679 of 2002, it was sought to be  explained by the learned Advocate General that since that  case itself was being heard along with these appeals as per  the order of the Apex Court dated 19.4.2006, the same  could not be treated as a binding precedent”.

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27. The Division Bench took the view that the State Govt. had  

issued the resolution 7.7.2006 under the threat of contempt, though the  

judgment does not record any such submission on behalf of the State  

Govt. The judgment indicates that in the opinion of the Division Bench  

the order of this Court dated 19.4.2006 did not prohibit the learned  

Single Judge from going into the entire controversy.  The Division Bench  

accepted that unless rules were framed, there could not be any merger  

since there was no parity in the pay of the subordinate teachers and the  

Bihar Education Service Class-II employees.  After referring to the report  

of the Saran Singh Committee, the Division Bench formed the opinion  

that the notification of the State Govt. dated 11.4.1977 will have to be  

confined only to 59 posts in the miscellaneous cadre.

28. The LPAs were therefore dismissed by the Division Bench by  

the impugned judgment and order dated 21.5.2010.  The Division Bench  

by the same order also dropped the contempt matter then pending in  

CWJC No.8679/2002.   The orders passed by the learned Single Judge as  

well as by the Division Bench have led to the present two Civil Appeals  

(arising out of SLP (C) Nos.26675-76 of 2010), which is the third  

occasion when  this controversy is coming up to this Court.  

Page 24

29. When the Special Leave Petitions leading to these appeals  

came up for consideration, initially a notice was issued on 7.3.2011, and  

lateron after hearing the counsel for respondents, the operation of the  

judgment and orders passed by the learned Single Judge as well as by  

the Division Bench came to be stayed by an order passed on 4.7.2011.  

The State of Bihar has now moved IA Nos. 19-20 of 2011 to vacate  

the order of stay. The appellants on the other hand have contended that  

in view of the stay granted by this Court, the State of Bihar and its  

officers are expected to take steps to implement the Resolution dated  

7.7.2006, and since that was not being done they have filed the  

Contempt Petition (Civil) No.386-387 of 2011 against the Chief  

Secretary of the Govt. of Bihar and its other officers. The Civil Appeals,  

the I.A for vacating the stay order and the Contempt Petitions have  

been heard, and are being decided together.  Shri Patwalia, learned  

Senior Counsel has appeared for the appellants, Shri Nagendra Rai,  

learned Senior Counsel has appeared for the State of Bihar and its  

officers, and learned counsel Shri Akhilesh Kumar Pandey has appeared  

for the Bihar Education Service Association and its members.  

Submission     of     the     rival     parties  

Page 25

30. It was submitted on behalf of the appellants that the learned  

Single Judge and the Judges of the Division Bench who have passed the  

impugned order have failed to grasp the true import of the order passed  

by this Court on 19.4.2006.  All that remained to be done thereafter was  

to monitor the contempt proceedings in Writ Petition No.8679/2002.  

This limited scope was exceeded by them to re-open the entire  

controversy.  If this is approved, there would never be any end to the  

litigation.  It was submitted by Mr. Patwalia, learned senior counsel for  

the appellants, that the fact of stagnation in the services of the  

subordinate teachers was not being disputed.  What was being  

contended was that the recommendation of Saran Singh Committee  

was concerning only 59 miscellaneous posts and that was approved by  

the State Govt. in the notification of 11.4.1977.  In his submission, this  

reading of the recommendation was not correct. In any case, the  

notification of 11.4.1977 has to be read on its own.  Besides, in the  

present matter the Court is concerned with the challenge to the Govt.  

Resolution dated 7.7.2006.  The implementation of this notification was  

not going to cause any serious financial burden on the State Govt.  The  

State Govt. was to upgrade the posts, and thus the subordinate  

teachers were to carry their own posts in the Bihar Education Service

Page 26

Class-II, though not many of those teachers were going to benefit since  

most of the beneficiaries have already retired or are on the verge of  

retirement as stated in the resolution.  As far as seniority is concerned,  

he submitted that the subordinate employees who remain in service will  

get seniority from 1977, and naturally those who joined the service  

subsequently will be placed thereafter.  Mr. Patwalia therefore  

submitted that these appeals should be allowed, and the challenge to  

the resolution dated 7.7.2006 be repelled.  He, however, fairly stated  

that he was not pressing for the action in contempt.  

31. As against this, it was submitted on behalf of the employees  

of the Bihar Education Service that the Subordinate Education Service is  

a feeder cadre for promotion to the Bihar Education Service.  Their pay  

is different, and the merger, as proposed in the resolution dated  

7.7.2006, will affect their seniority retrospectively.  In their submission,  

the State Govt. notification of 11.4.1977 has basically to be read in the  

light of the Saran Singh Committee report, which according to them did  

not extend the recommendations to the cadre of the subordinate  

teachers.  Mr. Akhilesh Kumar Pandey learned counsel, appearing for  

them, therefore submitted that the SLPs should be dismissed.

Page 27

32. On behalf of the State of Bihar submissions were advanced by  

Mr. Nagendra Rai, learned senior counsel.  He submitted that the  

notification passed by the State Govt. on 11.4.1977 ought to be read as  

confined to the Saran Singh Committee report only.  There was no  

merger contemplated in the Govt. notification, and the order of this  

Court dated 19.4.2006 should not be read as confined only to the  

hearing of the Contempt Petition by the High Court.  He submitted that  

the subordinate service employees have otherwise also prospects of  

promotions under their service rules. The Saran Singh Committee  

Report was only for the employees of the State Service and the  

subordinate service did not form part of the State Service. The report  

was meant for only those who did not have scope for promotion in the  

State Service, and therefore the SLPs be dismissed.

Consideration     of     the     rival     submissions   

33. We have considered the submissions by the counsel for the  

rival parties. The above narration of the facts and legal submissions  

shows that when the first Writ Petition No.12122 of 1998 was filed by  

the appellant, the State Government did not even care to file a counter.  

The learned Single Judge went through the material on record and  

noted that the order for merger had yet not been passed, and the

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matter was pending before the Govt.  The learned Judge, therefore,  

passed the order directing the Secretary, Education Department to act  

on the Govt. resolution dated 11.4.1977.  The State of Bihar chose to  

file an appeal before the Division Bench where for the first time it stated  

that there was no proposal for merger.  The Division Bench which heard  

the appeal noted that the direction of the Single Judge was to act in  

terms of the Govt. resolution and therefore there was no reason for the  

State to feel aggrieved. When the State Govt. filed the SLP, this Court  

observed that the final direction given to the State was to implement  

the resolution in the manner it was meant to be implemented, and  

disposed of the SLP.  Thus, it was clear at the end of the first round of  

litigation that the petition filed by the appellant had been allowed by  

learned Single Judge, and that order had been left undisturbed in the  

appeals therefrom by the Division Bench as well as by this Court.

34. As is seen from the further events that in spite of these orders  

the State Government did not take the steps to implement the  

notification dated 11.4.1977, in the manner accepted as valid in the  

first round of litigation.  This inaction led Shri Janardhan Rai and some  

other teachers to file one more Writ Petition being CWJC No.8679 of  

2002 for the implementation thereof, and the merger of subordinate

Page 29

teachers into the Bihar Education Service Class-II.  It is however seen  

that, at this stage there was a difference of opinion between the  

Finance Department and the Education Department of the State Govt.  

The Finance Department continued to maintain that the subordinate  

Education Service could not be merged into the Bihar Education Service  

Class-II.  The Education Department however in its first affidavit, in this  

Writ Petition, recorded that the notification of 11.4.1977 did not state  

that it is concerning only 59 posts.  Notings on the files of the Govt.  

clearly showed that the Education Department had understood that for  

the implementation of the notification, the merger of the two cadres  

was necessary, and had for that purpose prepared a draft resolution for  

the approval of the Finance Department.  In view of this factual  

scenario, and also in view of the previous orders, the learned single  

judge allowed the CWJC No.8679/2002, and passed the order directing  

the steps for merger of the subordinate teachers into the Bihar  

Education Service. The appeal of State of Bihar was also dismissed by  

the Division Bench by observing that the controversy had already  

attained finality with the orders of the Supreme Court.

35. The order passed by this Court, thereafter, in the Civil Appeal  

filed by the State Govt. bearing No.4466 of 2003 dated 19.4.2006 has to

Page 30

be read on this background.  In the very first para this Court has  

recorded that the non-implementation of the notification passed in 1977  

for such a long time had shocked its conscience.  In the second  

paragraph, the Court has recorded the submissions of the rival parties.  

In the third para, the Court specifically recorded that the writ petitions  

filed in the High Court were allowed in favour of the teachers holding  

that such merger is contemplated in the concerned Government  

notification.  All that is recorded thereafter is concerning the Contempt  

Petition, which was pending in the High Court, and which was  

concerning the non-implementation of High Court’s order, which had  

directed the implementation of the Govt. notification dated 11.4.1977.  

As the further paragraphs of this order record, all that remained to be  

looked into was whether the implementation has been done in the  

manner required by the notification.  It is also relevant that before  

dismissing the Civil Appeal filed by the State Govt., the Court recorded  

that the Govt. was also thinking of implementing the notification in the  

manner suggested by the respondents before the Court (that is the  

appellants herein).  Therefore, ultimately the Court directed that High  

Court will examine the matter and if satisfied that the notification has  

not been implemented, deal with the contemnors in accordance with

Page 31

law. Therefore, the Court vacated the stay on the contempt proceedings  

forthwith.

36. Thus, all that remained thereafter to be done was to decide  

the pending Contempt Petition in Writ Petition CWJC No.8679 of 2002.  

The state of Bihar understood the decisions so far correctly, and  

therefore passed the resolution dated 7.7.2006 accepting the view  

point, which had found favour with the High Court as well as this Court,  

recommending the merger of the two cadres and upgradation of the  

teachers.  The resolution also recorded that the merger would not have  

any serious financial implications nor would it affect seniority of many  

employees since most of the employees, to be merged, had either  

retired or were on the verge of their retirement.

37. In this background when the Bihar Education Service  

employees filed their Writ Petition being No.CWJC 10091 of 2006, the  

State Government rightly defended its resolution dated 7.7.2006.  

However, the learned Single Judge failed to understand the import of  

the decision of this Court, and thought that he had the liberty to reopen  

the controversy despite the decisions rendered in the first two rounds.  

He, therefore, passed the order allowing that Writ Petition. Now what we  

find is that the State Government once again changed its stand, and

Page 32

issued a Notification canceling the Resolution dated 7.7.2006. And when  

the appellants preferred their LPA, the State Government continued to  

maintain its changed position.  To say the least this was not expected  

from the State Government. Unfortunately enough, the Division Bench  

also approved this re-opening of the controversy once again.  

38. In the present appeals we are concerned with the legality of  

the Govt. Resolution dated 7.7.2006 which the State Govt. defended  

before the single judge but gave up the defence in the appeal before  

the Division Bench. The State Govt. went to the extent of contending  

that the decision in CWJC No.8679/2002 could not be treated as binding,  

although it had been confirmed by Division Bench and by this Court.  

Unfortunately enough we must record that the Division Bench also  

failed to interfere with this digression on the part of the State Govt. and  

the learned Single Judge.  The Division Bench ignored that, assuming  

that perhaps two views could be canvassed earlier while interpreting  

the notification dated 11.4.1977, the order dated 19.4.2006 passed by  

this Court at the end of the second round of these proceedings left no  

ambiguity whatsoever, and the State Govt. was expected to follow and  

honour the same.  The State Govt. did act accordingly, and issued the  

Govt. resolution dated 7.7.2006 to honour the judgments.  But

Page 33

immediately after the decision of the single judge in CWJC 10091 of  

2006, went to the other extreme to rescind the same, and not to defend  

it in appeal.  We have noted the contents of the Govt. resolution dated  

7.7.2006.  In our view it is well reasoned and justifiably issued to reduce  

the rigour of stagnation.  Whether the resolution of the problem was  

seen as based on the notification of 11.4.1977 or independently under  

the resolution dated 7.7.2006, there was no reason to interfere therein.  

39.  The hierarchy of the Courts requires the High Courts also to  

accept the decision of this Court, and its interpretation of the orders  

issued by the executive.  Any departure therefrom will lead only to  

indiscipline and anarchy.  The High Courts cannot ignore Article 141 of  

the Constitution which clearly states, that the law declared by this Court  

is binding on all Courts within the territory of India.  As observed by this  

Court in para 28 of the State of West Bengal and others Vs.  

Shivananda Pathak and others reported in 1998 (5) SCC 513:-

“If a judgment is overruled by the higher court, the  judicial discipline requires that the judge whose judgment  is overruled must submit to that judgment. He cannot, in  the same proceedings or in collateral proceedings between  the same parties, rewrite the overruled judgment..........”

In the same vein we may state that when the judgment of a Court  

is confirmed by the higher court, the judicial discipline requires that

Page 34

Court to accept that judgment, and it should not in collateral  

proceedings write a judgment contrary to the confirmed judgment.  We  

may as well note the observations of Krishna Iyer, J. in Fuzlunbi Vs. K.  

Khader Vali and another reported in 1980 (4) SCC 125:-

“…….No judge in India, except a larger Bench of the  Supreme court, without a departure from judicial discipline  can whittle down, wish away or be unbound by the ratio of  the judgment of the Supreme Court.”

40. That apart, even if one looks to the merits of the rival  

contentions, there is no dispute that although the rules do provide for a  

channel of promotion to the subordinate teachers, actually the chances  

of promotion for them are very less.  There is a serious stagnation as far  

as the subordinate teachers are concerned.  The Saran Singh  

Committee was essentially constituted to go into this very issue.  As can  

be seen from the report of the committee, the various service  

associations in the State were clamouring for appropriate provision for  

promotion on par with the Bihar Engineering Service.  It is true that the  

report of the committee does refer to the 59 posts in the miscellaneous  

cadre while examining the problem.  However, after directing the  

shifting of the engineers in the Education Department to the Public  

Works Department, and the doctors to the Health Services in sub-clause

Page 35

(1) and (2) of para 11.10, the committee recommended in sub-clause  

(3) that “the remaining posts should be included in the general cadre  

and manned by officers of Bihar Education Service as far as possible”.  

The notification issued by the State Govt. on 11.4.1977 approved the  

recommendation of the committee, but the wording used while  

approving the recommendation is bit different.   

41. It cannot be disputed that it was for the State Govt. to take  

appropriate decision on the recommendation.  The recommendations  

made by the committee will of course have to be seen as the material  

placed before the Govt.  However, ultimately, it is the decision of the  

Govt. which is relevant and therefore one has to look at the wording in  

the notification of the State Govt.  Here the approved recommendation  

in the wording used by the State Govt. is as follows:-

“Various Posts such as Teacher (except the  teachers of Netarhat) and the posts of Stadium managers  etc should be included in the Bihar Education Service  cadre and the Officers of the cadre should be  appointed on these posts.”  

  (emphasis supplied)

This notification was clearly understood by the Education  

Department. Earlier it had prepared the draft resolution for the approval  

of the Finance Department recommending the merger of the two

Page 36

cadres.  And later the State Govt. had also rightly passed the resolution  

7.7.2006 (in concurrence with the Finance Department) after the  

decision of this Court at the end of the second round of litigation.

42. Much emphasis was laid by the Bihar Education Service  

Association on the absence of common service rules, to oppose the  

merger of the subordinate service employees into the State Service  

Class-II. In this context we must note that the decision to merge the  

cadre is a matter of policy as held by this Court in S.P. Shivprasad  

Pipal Vs. Union of India and others reported in 1998 (4) SCC 598.  

It is for the state to decide as to which cadres should be merged so long  

as the decision is not arbitrary or unreasonable.  As stated earlier, the  

resolution dated 7.7.2006 is well reasoned and justified, and cannot be  

called arbitrary or unreasonable to be hit by Article 14.  It deserved to  

be upheld.  It is possible that the merger may affect the prospects of  

some employees but this cannot be a reason to set-aside the merger.  

Once the State Govt. has taken the necessary decision to merge the  

two cadres in a given case, the State Govt. is expected to follow it by  

framing the necessary rules.

43. One of the pleas raised by the employees of the Bihar  

Education Service was that the subordinate teachers did not belong to

Page 37

the State Service. We may note at this stage that in their list of dates  

and events of the Civil Appeals, the appellants have specifically referred  

to the fact that these subordinate services are included in Appendix-16  

of the Bihar Service Code, and therefore, it is contended that it will be  

incorrect to state that the subordinate service is not a part of the State  

Service.   If we refer to the code we find that all the posts in subordinate  

service other than those classified as Class-I and Class-II State Services  

are mentioned at Item 119 in Appendix-16 of the Bihar Service Code,  

1952.  Thus, there is no merit in this objection as well.

44. This entire discussion leads us to only one conclusion that the  

learned Single Judge who heard the petition CWJC No.10091/2006,  

which began the third round of litigation filed on behalf of the Bihar  

Education Service Association, had no business to re-open the entire  

controversy, even otherwise.  The State Govt. had already passed a  

resolution dated 7.7.2006 after the order of this Court dated 19.4.2006.  

While examining the legality of that resolution (which was defended by  

the State Govt. at this stage before the learned Single Judge) the entire  

controversy was once again gone into. The law of finality of decisions  

which is enshrined in the principle of res-judicata or principles

Page 38

analogous thereto, does not permit any such re-examination, and the  

learned Judge clearly failed to recognize the same.

45. For the reasons stated above, these appeals (arising out of  

SLP Nos.26675-76 of 2010) are allowed.  The judgment and order  

passed by the Division Bench of Patna High Court in LPA No.418/2009  

and other LPAs dated 21.5.2010, and that of the learned Single Judge  

dated 31.10.2007 in CWJC No.10091/2006 are set-aside and the said  

Writ Petition is hereby dismissed.  Consequently the notification dated  

19.11.2007 issued pursuant to the decision of the Single Judge will also  

stand quashed and set-aside.  The State Govt. Resolution dated  

7.7.2006 is upheld.  The state shall proceed to act accordingly.  I.A.  

Nos.19-20/2011 are dismissed. As stated by Mr. Patwalia, learned senior  

counsel for the appellants, the appellants no longer press for the action  

for contempt arising out of CWJC No.8679/2002. Contempt Petition Nos.  

386-387/2011, will also accordingly stand disposed of, as not pressed.  

46. The attitude of the State Govt. in this matter has caused  

unnecessary anxiety to a large number of teachers.  The State Govt.  

must realise that in a country where there is so much illiteracy and  

where there are a large number of first generation students, the role of  

the primary and secondary teachers is very important.  They have to be

Page 39

treated honourably and given appropriate pay and chances of  

promotion.  It is certainly not expected of the State Govt. to drag them  

to the Court in litigation for years together.  

47. Though the appeals stand disposed of as above, we do record  

our strong displeasure for the manner in which the State of Bihar kept  

on changing its stand from time to time.  This is not expected from the  

State Govt.  The manner in which the learned Single Judge proceeded  

with the Writ Petition No.1009/2006 to reopen the entire controversy,  

and also the Division Bench in LPA No.418/2003 in approving that  

approach is also far from satisfactory.  If the orders passed by this Court  

were not clear to the State Govt. or any party, it could have certainly  

approached this Court for the clarification thereof.  But it could not have  

setup a contrary plea in a collateral proceeding.  We do not expect such  

an approach from the State Govt. and least from the High Court.  

Having stated this, although we have expressed out displeasure about  

the approach of the State Government, we refrain from passing any  

order as to costs.

…………………………………..J.  ( Surinder Singh Nijjar )

…………………………………..J.

Page 40

( H.L. Gokhale  ) New Delhi Dated: November 23, 2012