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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  516            OF 2013 (Arising out of SLP (C) No. 22617 of 2008)

State of Bihar & Anr.                     .... Appellant (s)

Versus

Sunny Prakash & Ors.                          .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the judgment and order  

dated 07.08.2008 passed by the High Court of Judicature at  

Patna  in  CWJC  No.  10870  of  2008  whereby  the  Division  

Bench of the High Court in a Public Interest Litigation (PIL)  

issued mandamus directing the Chief Secretary, Government  

of Bihar, Patna to ensure that the commitment given by the  

State Government to the Bihar State University and College  

Employees  Federation  (in  short  “the  Federation”)  is  

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honoured and implemented within one month from the date  

of the judgment.   

3) Brief facts:

(a) The Government of Bihar, Education Department, vide  

G.O.  dated 25.02.1987,  declared the non-teaching staff  of  

Universities  and  Constituent  Colleges  equivalent  to  the  

Government staff.   

(b) On 16.07.2003, an Agreement/Compromise was arrived  

at  between  the  Federation  and  the  State  Government,  

regarding parity between the employees of the Constituent  

Colleges of the University and the State Government.   On  

21.07.2003, the State Government sent the said Agreement  

to the Vice Chancellors of all the Universities of the State of  

Bihar for necessary action.

(c) In  2005,  because  of  the  non-implementation  of  the  

Agreement arrived at, there was a strike by the Federation in  

the State of Bihar.  Following the strike of the Federation, on  

24.08.2005, an understanding was arrived at between the  

Federation and the Government of Bihar and the strike was  

recalled later.

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(d) Since  the  Agreement  was  not  implemented,  on  

01.07.2007, the Federation again went on strike which led to  

complete disruption of educational activities in the Colleges  

and the Universities of Bihar.  On 17.07.2007, a meeting was  

held between the representatives of the Federation and the  

Government of Bihar and an Agreement/Understanding was  

again  arrived  at  on  18.07.2007  for  consideration  of  their  

demands.  Pursuant to the same, on 19.07.2007, a letter was  

issued  by  the  Government  for  implementation  of  the  

Agreement and the strike was recalled.

(e) In July, 2008, again, on account of non-implementation  

of the Agreement/Understanding, the Federation was again  

constrained  to  go  on  strike.   Due  to  indefinite  strike  of  

teaching  and  non-teaching  staff  of  the  Universities,  on  

14.07.2008,  a  letter  was  written  by  Sunny  Prakash  

(Respondent No.  1 herein),  student of  Daroga Prasad Roy  

Degree College, addressed to the Chief Justice of the High  

Court requesting to end the strike, which was treated as a  

Public  Interest  Litigation  (PIL).   On  28.07.2008,  an  

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intervention application was filed by the Federation (R-5) in  

the PIL before the High Court.   

(f) After hearing the parties, the Division Bench of the High  

Court, vide order dated 07.08.2008,  inter alia, directed the  

Chief  Secretary,  Government  of  Bihar  to  ensure  that  the  

commitment  given  by  the  State  Government  to  the  

Federation  which  have  been  reduced  to  writing  on  

18.07.2007, is honoured and implemented within one month.  

The High Court also directed the Federation to withdraw the  

strike immediately.   

(g) On  22.08.2008,  an  application  was  filed  by  the  

Government of Bihar for modification of the impugned order,  

which was also dismissed by the High Court.   

(h) Aggrieved by the order dated 07.08.2008 passed by the  

High Court, the State of Bihar preferred the above appeal by  

way of special leave petition before this Court.       

4) Heard Mr. Rakesh Dwivedi, learned senior counsel for  

the appellants,  Mr. K.K. Venugopal,  learned senior counsel  

for  respondent  Nos.  4  and  5,  Mr.  Manu  Shanker  Mishra,  

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learned counsel for respondent Nos. 2 and 3 and Mr. Ashok  

Mathur for respondent No.1.

Discussion:

5) The only grievance of the State is that the Agreement  

dated 18.07.2007 relied on by the High Court for issuance of  

impugned direction was not in accordance with the Rules of  

Executive Business, State of Bihar which are statutory rules  

framed under Article 166 (3) of the Constitution of India. On  

the other  hand,  it  is  the stand of the Federation that  the  

Agreement  executed  on  18.07.2007  was  a  valid  one  and  

pursuant to  the same,  the State Government itself  issued  

directions  to  the  authorities  concerned  for  its  

implementation.  

6) In  order  to  understand the rival  claim,  it  is  useful  to  

refer copy of the proceedings of the understanding held on  

17.07.2007 which reads as under:-

“Proceeding  of  discussion  on  17.7.07  with  respect  to  implementation  of  proceeding  regarding  agreement  between the Bihar State University and College Employees  federation on 24.8.05 and withdrawal of strike.

Present :-  

1. Hon'ble Prof. Arun Kumar, Chairman, Bihar  Legislative Council.

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2. Hon'ble Sri Vrishan Patel, Minister, Human  Resource Department.

3. Hon'ble Vasudev Singh, M.L.C. 4. Hon'ble Kedar Pandey, M.L.C. 5. Hon'ble Mahachandra Prasad Singh, M.L.C. 6. Hon'ble Dilip Kumar Choudhary, M.L.C. 7. Hon'ble Ram Kishore Singh, M.L.C. 8. Hon'ble Srimati Usha Sahni, M.L.C. 9. Principal Secretary, Human Resource  

Development Department 10. Commissioner, Finance Department 11. Addl. Commissioner, Human Resource  

Development Department 12. Addl. Commissioner, Finance Department 13. Sri Rajendra Mishra, Patron, Mahasangh   (Association) 14. Sri Bimal Prasad Singh, President, Mahasangh 15. Sri Ganga Prasad Jha 16. Sri Ramshankar Mehta, Joint Secretary,  

Mahasangh 17. Sri Dhanajay Prasad Singh, Vice President,  

Mahasangh 18. Sri Premchand, Joint Secretary, Mahasangh 19. Sri Rohit Kumar, Treasurer, Mahasangh, 20. Sri. M.P. Jaiswal, Executive Member

Regarding the matter of strike by the non-teaching staffs of  the university and colleges of the State, the representatives  of the Federation met with the Hon'ble Chairman of Bihar  Legislative Council  in his office on their demands and the  following points were considered for issuance of government  order and it was decided that the strike will be called off by  the Federation: -

1. 50%  Dearness  Allowance may be merged with Basic Pay.

2. Medical Allowance may  be  increased  from  Rs.  50/-  (Fifty)  to  Rs.  100/-  (Hundred).

3. Facility  of  ACP  may  be  given  to  the  employees.

4. Head  Assistant  and  Accountant  of  the  colleges  may  be  designated  as  Section Officer at the departmental level.

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5. Pay scale of  Rs.  5500- 9000 may be granted to the Assistants of  colleges  and university.

6. Assistant  Librarian  and  PTI  who are possessing qualification  fixed by UGC,  may be granted UGC pay scale.

7. Library  Assistant,  Sorter, Routine Clerk, Correspondence clerk may be  granted  a  pay  scale  of  Rs.  4000-6000  at  Departmental level.

8. Facilities  of  accumulation  of  240  days  Earned  Leave  and  encashment may be granted to the employees at par  with the employees of state government which will  be admissible similarly to the class III  and class IV  grade employees.

9. Ward  servant  may  be  designated as Hostel servant.

10. Anomalies  regarding  the  pay  scale  of  University  Engineer,  Assistant  Engineer and Junior Engineer and Electrician may be  removed.

11. Store  Keeper  may  be  treated as an Assistant and pay scale may be given  accordingly.

The following points were considered with respect to the  period of strike: -

1. No  coercive  and  punishable proceeding will  be initiated against any  employee for the reason of strike.

2. For  strike  period,  due  and admissible earned leave may be sanctioned.

3. Even  after  above  action, if the days of absence remains, the absence  that may be sanctioned against earned leave to be  earned in future.

4. If  earned  leave  to  be  earned  in  future  is  not  sufficient  for  period  of  absence the extra-ordinary leave may be sanctioned  for remaining period.

After  consideration  on  the  above  mentioned  demands  regarding  the  period  of  strike  were  accepted  by  the  

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Government to be acted upon within one and a half month  as per rules.

Sd/- Sd/- Sd/- (Ganga Pd. Jha) (Dr.Vimal Pd. Sinha)  (Sanjeev Kr. Sinha) 18.07.2007 18.07.2007      18.07.2007 General Secretary Chairman      Addl.Commissioner

cum- Secretary,

HRD  Patna”   

7) The above details show that apart from the Chairman,  

Bihar  Legislative  Council,  Minister  concerned,  viz.,  Human  

Resource Department (HRD) as well as Principal Secretary,  

HRD  and  Commissioner,  Finance  Department  as  well  as  

various other higher level officers of the State Government  

participated,  deliberated  and  ultimately  accepted  the  

demands of the Federation.  It is also to be noted that at the  

end of the discussion and after recording of the terms and  

conditions,  General  Secretary  of  the Federation,  Chairman  

and Addl. Commissioner-cum-Secretary, HRD, Patna signed  

the same on the very next  day i.e.,  18.07.2007.   In  such  

circumstances, it cannot be contended that decision was not  

taken by or on behalf of the Government.

8) In addition to the same, Mr. Venugopal, learned senior  

counsel for the contesting respondents has also brought to  

the  notice  of  this  Court  the  letter  dated  21.07.2003  

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addressed to the Vice Chancellors of all the Universities of  

the State of Bihar which reads as under:-

"Letter No.2/D01-04/2003 H.E. Govt. of Bihar

Higher Education Department

From: Sh. Aditya Narayan Singh Deputy Secretary to the Govt.

To: The Vice Chancellors All the Universities of the  State of Bihar

Patna, dated: 21st July, 2003

Sub: The Proceedings of the agreement dated 16.07.2003  between Bihar State Universities and Colleges Staff  Federation and Govt. of Bihar

Sir, Copy  of  the  proceedings  of  the  agreement  dated  

16.07.2003 between Bihar State Universities and Colleges  Staff  Federation  and  State  Govt.  is  being  sent  having  annexed for necessary action.

Faithfully

Sd/- 21.07.2003 Aditya Narayan Singh

Deputy  Secretary  to  the  Govt. Rajendra/19.07.2003 Memorandum No.2/D01-04/2003  

Dated 21.07.2003"  

9) In addition to the same, it is also brought to our notice  

that even after the discussion on 17.07.2007, on 19.07.2007  

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itself,  Human  Resources  Development  Department  of  the  

Government  of  Bihar  sent  another  communication  to  the  

Registrars of all the Universities of the State to implement  

the decision arrived in the negotiation held on 17.07.2007.  

The said letter reads as under:-

"Letter No.2/D 1-04/2003-1107 Government of Bihar

Human Resources Development Department

From: Gopal Ji Deputy Director, Human Resources Development Department

                                         Patna, Dated 19.07.2007 To The Registrar All the Universities of the State Bihar

Subject: For the implementation of the agreement  reached  with  the  Bihar  State  University  and  College  Employees  Federation  on  24.08.2005  and the proceedings of the negotiation held on  17.07.2007 for recalling the strike.

Sir, As  directed  for  the  implementation  of  the  agreement  reached  with  the  Bihar  State  University  and  College  Employees  Federation  on  24.08.2005  and  a  copy  of  the  proceedings  of  the  negotiation  held  on  17.07.2007  for  recalling  the  strike  are  being  sent  for  information  and  necessary action.

Yours faithfully,        Sd/-  (Gopal Ji)

       Deputy Director (Higher Education)"

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In order to appreciate the stand of both sides, it is useful to  

refer  the  earliest  decision  of  the  Government  of  Bihar,  

Education  Department  dated  25.02.1987  informing  the  

General  Secretary  of  the  Federation,  that  facilities  which  

have  been  provided  for  Government  staff  shall  also  be  

sanctioned to the non-teaching staff of the Universities and  

subordinate  affiliated  colleges.   The  said  communication  

reads as under:-

“No. 123/C Govt. of Bihar

Education Department

From: Sh. Bhaskar Banerjee Secretary to the Govt. Education Department, Bihar

To: General Secretary Bihar State Universities and Colleges Non-teaching Staff Federation, Patna

                     Dated: 25th February, 1987 Sir,

This  is  to  inform  as  per  direction  that  the  compromise which has taken place by the Govt. with Govt.  staff in regard to the recent strike and the facilities which  have been provided, the same shall also be sanctioned to  the  non-teaching  staff  of  universities  and  subordinate  

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affiliated  colleges.   The  Govt.  has  already  taken  the  decision to declare the same as equivalent to Govt. staff.

The  copy  of  this  letter  is  being  sent  to  the  Vice  Chancellors  of  all  Universities  for  kind  information  and  necessary action.

Yours faithfully,       Sd/- Bhaskar Banerjee 25.02.1987 Secretary to the Govt., Education Department  Bihar, Patna”

10) Mr.  Rakesh  Dwivedi,  learned  senior  counsel  for  the  

State contended that in the absence of any decision by the  

Cabinet  in  terms  of  the  Rules  of  Executive  Business,  any  

other  agreement  or  decision  is  not  binding  on  them.  

However,  in the light of the various directions of the very  

same  Government,  particularly,  by  the  HRD/Education  

Department,  requesting  all  the  Vice  Chancellors  and  

Registrars  of  all  the  Universities  to  implement  

"Government's" decision, the said contention is liable to be  

rejected.  

11) In  support  of  his  claim,  Mr.  Dwivedi,  learned  senior  

counsel  for  the State relied on a decision of  this  Court in  

Haridwar Singh vs.  Bagun Sumbrui and Others, (1973)  

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3 SCC 889 wherein while relying on Rule 10 of the Rules of  

Executive Business and finding that as per Rule 10 (2), prior  

consultation with the Finance Department is required for a  

proposal and Cabinet alone would be competent to take a  

decision,  this  Court  allowed the appeal  and set  aside  the  

contrary direction issued by the High Court.  According to us,  

the above decision is  not  applicable  to  the case on hand  

since we have already noted that the Commissioner, Finance  

Department as well as various other higher level officers of  

the  State  Government  participated  in  the  discussion.  

Further, in the said decision, when the Finance Department  

was consulted, the Department did not agree for  the said  

proposal whereas this was not the situation in the case on  

hand.  

12) The next decision relied on by learned senior counsel  

for the State is Punit Rai vs. Dinesh Chaudhary, (2003) 8  

SCC 204.  He pressed into service the following observations  

made by this Court:  

“42. The said circular letter has not been issued by the  State  in  exercise  of  its  power  under  Article  162  of  the  Constitution  of  India.  It  is  not  stated  therein  that  the  decision has been taken by the Cabinet or any authority  

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authorized in this behalf in terms of Article 166(3) of the  Constitution of India. It is trite that a circular letter being  an  administrative  instruction  is  not  a  law  within  the  meaning  of  Article  13  of  the  Constitution  of  India.  (See  Dwarka Nath Tewari v. State of Bihar, AIR 1959 SC 249.)

First of all, the said decision relates to a question, namely,  

whether  the  respondent  therein  belonged  to  Scheduled  

Caste community or not? On going through the same, we are  

of the view that the same is not applicable to the case on  

hand.

13) Finally, learned senior counsel for the State relied on a  

decision of this Court reported in State of U.P. vs. Neeraj  

Awasthi and Others, (2006) 1 SCC 667.  This case relates  

to the jurisdiction of the High Court to issue a direction for  

framing a scheme for regularization of the employees of the  

U.P.  Agricultural  Produce  Market  Board.   Learned  senior  

counsel  relied  on  the  statement  made  in  para  41  which  

reads thus:-

“41. Such a decision on the part of the State Government  must be taken in terms of the constitutional  scheme i.e.  upon compliance with the requirement of Article 162 read  with Article 166 of the Constitution. In the instant case, the  directions  were  purported  to  have  been  issued  by  an  officer  of  the  State.  Such  directions  were  not  shown  to  have  been  issued  pursuant  to  any  decision  taken  by  a  competent  authority  in  terms  of  the  Rules  of  Executive  

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Business  of  the  State  framed  under  Article  166  of  the  Constitution.”

This  decision  makes  it  clear  that  a  decision  of  the  State  

Government must be in compliance with the requirement of  

Article 162 read with Article 166 of the Constitution and a  

direction issued by an officer of the State without following  

such procedure is not binding on the Government. We are in  

respectful agreement with the same.   

14) In  the  case  on hand,  we have already extracted the  

commitment made by the State Government as early as in  

1987,  subsequent  demands  made  by  the  Federation  on  

various  occasions  and  the  final  decision  by  the  Minister  

concerned,  various  officers  including  HRD  and  Finance  

Departments, representatives of the Federation and all other  

persons connected with the issue in question.  Added to it,  

directions  were  also  issued  to  the  Vice  Chancellors  and  

Registrars of all the Universities for implementing the said  

"Government's"  decision.   In  such  circumstances,  as  

observed earlier, it cannot be open to the State to contend  

that it is not a Government's decision in terms of Article 162  

read with Article 166 of the Constitution.

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15) Mr.  Venugopal,  learned  senior  counsel  for  the  

contesting respondents heavily relied on the principles laid  

down  in  State  of  Bihar  and  Others vs.  Bihar  Rajya  

M.S.E.S.K.K. Mahasangh and Others, (2005) 9 SCC 129.  

The said decision also arose from a dispute concerning the  

absorption of about 4000 employees working in teaching and  

non-teaching  posts  in  40  colleges  affiliated  to  various  

Universities which were taken over as Constituent Colleges  

in  accordance  with  the  provisions  of  the  Bihar  State  

Universities Act, 1976.  It was contended on behalf of the  

State of Bihar that power to sanction additional posts and  

appointments against the same in the affiliated colleges is  

within  the  exclusive  jurisdiction  and  power  of  the  State  

under  Section 35 of  the  Act.   It  was also  contended that  

certain decisions of the Government that were taken after  

the change of elected Government had no prior approval of  

the  Council  of  Ministers.   The  decision  by  the  Cabinet,  

approval by the Chief Minister on behalf  of the Cabinet is  

sine qua non for treating any resolution as a valid decision of  

the Government. It was also stated that in the absence of  

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Cabinet  approval,  the  order  dated  01.02.1988  which  was  

issued by the Deputy Secretary to the Government of Bihar  

has no legal efficacy. It was further argued by the State that  

any  valid  order  of  the  Government  has  to  be  formally  

expressed in the name of the Governor in accordance with  

Article 166 of the Constitution.  In para 64, this Court has  

held thus:

64. So far as the order dated 18-12-1989 is concerned, the  State being the author of that decision, merely because it  is formally not expressed in the name of the Governor in  terms of  Article  166 of  the  Constitution,  the  State  itself  cannot be allowed to  resile or go back on that decision.  Mere change of the elected Government does not justify  dishonouring  the  decisions  of  previous  elected  Government.  If  at  all  the two decisions contained in  the  orders  dated  1-2-1988  and  18-12-1989  were  not  acceptable to the newly elected Government, it was open  to  it  to  withdraw  or  rescind  the  same  formally.  In  the  absence of such withdrawal or rescission of the two orders  dated 1-2-1988 and 18-12-1989, it is not open to the State  of Bihar and State of Jharkhand (which has been created  after reorganisation of the State of Bihar) to contend that  those decisions do not bind them.

From the above conclusion, it is clear that merely because of  

change  of  elected  Government  and  the  decision  of  the  

previous government not expressed in the name of Governor  

in  terms  of  Article  166  of  the  Constitution,  valid  decision  

cannot be ignored and it is not open to the State to contend  

that those decisions do not bind them.  

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16) It is also useful to refer a Constitution Bench decision of  

this Court in R. Chitralekha and Anr. vs. State of Mysore  

and Others, AIR 1964 SC 1823.  In order to understand the  

principles laid down by the Constitution Bench, it is useful to  

quote paras 4 and 5 which read thus:

“(4).  The  next  contention  advanced is  that  Annexure  IV  was invalid as it  did not conform to the requirements of  Art.  166 of the Constitution. As the argument turns upon  the form of the said annexure it will be convenient to read  the material part thereof.  

"Sir,  

Sub : Award of marks for the "interview" of the candidates  seeking admission to Engineering Colleges and Technical  Institutions.  

With  reference  to  your  letter  No.  AAS.4.ADW/63/2491,  dated  the  25th  June,  1963,  on  the  subject  mentioned  above,  I  am  directed  to  state  that  Government  have  decided that 25 per cent of the maximum marks........  

Yours faithfully,            

Sd/- S. NARASAPPA,    

     Under  Secretary  to  Government,  Education  Department."       

Ex facie this letter shows that it was a communication of  the order issued by the Government under the signature of  the  Under  Secretary  to  the  Government,  Education  Department.  Under  Art.  166 of  the  Constitution  all  executive  action  of  the  Government  of  a  State  shall  be  expressed to be taken in the name of the Governor, and  that  orders  made in  the name of  the Governor  shall  be  

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we have no reason to reject those communications sent by  

the higher level officers of the State Government.    

17) Inasmuch as all  the persons who were competent  to  

represent were the parties to the said Agreement referred to  

above  and  after  making  such  commitment  by  the  State  

Government, as rightly observed by the High Court, we are  

also of the view that the same has to be honored without  

any exception.  By the impugned order, the High Court has  

not only directed the State Government to implement the  

commitment given by it having been reduced into writing on  

18.07.2007,  honoured  by  the  State  Government  itself  in  

subsequent  letters/correspondences  but  also  directed  the  

Federation to call off the strike immediately in the interest of  

the student community.  We also make it clear that though  

the  High  Court  termed  the  impugned  order  as  interim in  

nature, considering the fact that the writ petition came to be  

filed by a student in the interest of the student community  

by writing a letter  which was treated as a PIL,  no further  

order need be passed in the said writ petition, namely, CWJC  

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No. 10870 of 2008 pending on the file of the High Court at  

Patna and it stands closed.   

18) In view of our conclusion, we direct the State of Bihar to  

implement  the  impugned  order  of  the  High  Court  dated  

07.08.2008 within a period of three months from the date of  

receipt of copy of this judgment.  The appeal filed by the  

State of Bihar is dismissed with the above direction.  There  

will be no order as to costs.

...…………….…………………………J.              (P. SATHASIVAM)                      

 .…....…………………………………J.       (JAGDISH SINGH KHEHAR)         

NEW DELHI; JANUARY 18, 2013.  

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