CIVIL APPELLATE JURISDICTION: Civil Appeal No. 656 of 1989.
From the Judgment and Order dated 27.11. 1987 of the Patna High Court in C.W.J .C. No. 1254 of 1987. Tapas Ray and D.P. Mukharjee for the Appellants.
M.K. Ramamurthi, P.P. Singh, A.N. Trehan and Promod Swarup for the Respondents. The Judgment of the Court was delivered by
RANGANATH MISRA, J. This appeal by special leave is directed against the decision of the Patna High Court dated 27.11. 1987 quashing the notification dated 18.11.1986 under which in terms of the Subordinate Education Service (Teaching Branch) Determination of Seniority Rules framed under the proviso to Article 309 of the Constitution, the hitherto single cadre known as Secondary Education Service was bifurcated.
On 20th of February, 1975, the State Government published a joint seniority list of teachers of Subordinate Education Service belonging to the Boys school branch and the Higher Secondary Teachers of the Subordinate Education Service. The joint gradation list was challenged before the High Court in Writ Petition No. 2956 of 1975. The High Court dismissed the writ petition as also an application for review of such dismissal. On 30th March, 198 1, this Court dismissed the special leave petition carried against the decision of the High Court. When with the dismissal of the special leave petition the position was getting settled, the State Minister of Education came forward with a proposal that the cadre should be separated and the Higher Secondary teachers and Secondary teachers of the Upper Division of the Subordinate Education Service should have a separate gradation list. Ultimately by the impugned notification the bifurcation was done. The Government took the stand that the demand to bifurcate was taken up in the Legislature and in terms of the decision taken by the Implementation Committee of the Bihar Legislative Council, the new scheme of bifurcate came to be done.
The High Court considered the matter at great length and with care. The legal position as settled by several decisions of this Court was noticed. Towards the end of the judgment the High Court has said:
"We have referred to the judgment of
the Supreme Court in K.S. Vora & Ors. v. State
of Gujarat & Ors., only to illustrate that the
courts have at no time ignored the interest of
the employees and questioned the authority of
the State to frame rules in terms of the
proviso to Article 309 of the Constitution of
India, but the courts have always taken notice
of the fact that those who stood together and
fell in line to proceed further have to
be provided all opportunities in respect of
their avenues of promotion alike without
breaking that order, so that one who ranks
higher in the grade may not go down in due
course of service. It is in this context that
we have no hesitation in holding that rules in
the notification dated 18.11.1986 are ultra
vires Articles 16(1) and 14 of the Constitu-
tion.
We do not propose to predicate into
what is alleged to be the mala fide of the
respondent State inasmuch as after the judg-
ment of this Court in C’.W.J.C. No. 2956 of
1975, the Minister of State decided to find
means to disintegrate the already integrated
cadre or the Chairman of the Legislative
Council, having no apparent role in the proc-
ess of making rules in terms of proviso to
Article 309 of the Constitution appeared and
influenced the process. We
refrain from going into this aspect, for we
think, with our conclusion as above, the upper
division of the Subordinate Education Service
shall continue to have the same respect as it
got from the judgment of this Court in
C.W.J.C. No. 2956 of 1975 and no one in the
Government shall in future again attempt to
deny to the members of the said service their
due rights for promotion to the selection
grade and other higher posts."
In course of hearing of the matter, counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits. The High Court, in our opinion, rightly found fault with such action.
We have considered the matter from different angles keeping the relevant aspects in view but have not been able to satisfy ourselves that the judgment of the High Court suffers from any infirmity to justify its vacation.
The appeal is accordingly dismissed but parties are left to bear their respective costs. N.V.K. Appeal dismissed.