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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)

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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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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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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 approval-

On 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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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,  Munger & Ors.

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 Part-

A 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.

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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.

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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;

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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

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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.

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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

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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

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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

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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:-

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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 pay- scale 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

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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 pay- scale 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

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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

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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 Secretary-

Bihar,  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.

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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

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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.

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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

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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

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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.

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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 North- Eastern 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

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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

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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.

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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

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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-

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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

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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

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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

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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

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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

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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:-

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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

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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

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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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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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(Trained) ion of 7th Pay CommissionRecruited in  

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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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

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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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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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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,  Munger & Ors.

(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,  Munger & Ors.

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,  Munger & Ors.

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,  Munger & Ors.

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,  Munger & Ors.

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,  Munger & Ors.

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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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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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,  Munger & Ors.

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,  sub- major  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,  Munger & Ors.

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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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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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  non-

teaching 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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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,  Munger & Ors.

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,  Munger & Ors.

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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State of Bihar and Ors.  vs.  The Bihar Secondary Teachers Struggle Committee,  Munger & Ors.

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,  Munger & Ors.

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 one-

time 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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State of Bihar and Ors.  vs.  The Bihar Secondary Teachers Struggle Committee,  Munger & Ors.

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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State of Bihar and Ors.  vs.  The Bihar Secondary Teachers Struggle Committee,  Munger & Ors.

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  86 th 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 take- over 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 driver- constables 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 two- Judge 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 three- Judge  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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State of Bihar and Ors.  vs.  The Bihar Secondary Teachers Struggle Committee,  Munger & Ors.

“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  work-

charge,  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  work- charge,  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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State of Bihar and Ors.  vs.  The Bihar Secondary Teachers Struggle Committee,  Munger & Ors.

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 rule- framing 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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State of Bihar and Ors.  vs.  The Bihar Secondary Teachers Struggle Committee,  Munger & Ors.

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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State of Bihar and Ors.  vs.  The Bihar Secondary Teachers Struggle Committee,  Munger & Ors.

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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State of Bihar and Ors.  vs.  The Bihar Secondary Teachers Struggle Committee,  Munger & Ors.

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.

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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

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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

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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

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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

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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.

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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)

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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

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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

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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.”

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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

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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

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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

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