Supreme Court Affirms +2 Lecturers as Part of Bihar Subordinate Education Service: State of Bihar vs. Shyama Nandan Mishra (2022)

LEGAL ISSUE: Whether +2 lecturers appointed in government and nationalized secondary schools pursuant to Advertisement No. 1/87 are part of the Bihar Subordinate Education Service (BSES) and entitled to be merged with the Bihar Education Service Class II (BES).

CASE TYPE: Service Law

Case Name: State of Bihar & Ors. vs. Shyama Nandan Mishra

[Judgment Date]: May 05, 2022

Date of the Judgment: May 05, 2022

Citation: (2022) INSC 447

Judges: K.M. Joseph, J., Hrishikesh Roy, J.

Can a government arbitrarily deny benefits to a class of employees, despite their qualifications and initial terms of service? The Supreme Court of India addressed this question in a recent case concerning +2 lecturers in Bihar. The core issue was whether these lecturers, appointed in the late 1980s, were rightfully part of the Bihar Subordinate Education Service (BSES) and thus entitled to be merged with the Bihar Education Service Class II (BES). This judgment clarifies the rights of these lecturers and criticizes the Bihar government’s inconsistent stance. The judgment was delivered by a bench comprising Justice K.M. Joseph and Justice Hrishikesh Roy, with the majority opinion authored by Justice Hrishikesh Roy.

Case Background

The case revolves around the appointments of +2 lecturers in Bihar’s government and nationalized secondary schools following Advertisement No. 1/87. These lecturers were appointed to teach at the higher secondary level after the introduction of the 10+2+3 education pattern in 1979. Initially, higher secondary education was often provided by colleges due to a lack of infrastructure. In 1985, the Bihar Government sanctioned 148 lecturer posts for government schools and 264 for nationalized schools, with a common pay scale of Rs. 940-1660. While the posts in government schools were specified to be in the BSES Selection Grade, the nationalized school posts were not. The appointments were made on an ad-hoc and temporary basis, which continued through various government notifications. The main contention arose when the government, while implementing a merger decision in 2006, denied the benefit of merger into BES to the +2 lecturers, claiming they were never part of the BSES cadre. This led to a series of litigations.

Timeline:

Course of Proceedings

The High Court at Patna initially entertained writ petitions from the BSES teachers claiming merger of their cadre with the BES, which was allowed and affirmed up to the Supreme Court. Subsequently, the merger decision was challenged by the BES Association, which was initially successful in the High Court but was ultimately overturned by the Supreme Court. The government’s fluctuating stance on the merger led to contempt proceedings. During the pendency of the writ petitions filed by the +2 lecturers, the State Government issued the 2009 Rules, encadring the lecturers with the teachers of nationalized secondary schools, which was also challenged by the +2 lecturers in the High Court. The High Court then ruled in favor of the +2 lecturers, stating they were always part of the BSES and therefore, entitled to merger with BES, which is the subject of the present appeal.

Legal Framework

The judgment refers to the following legal provisions:

• Article 790 of the Bihar Education Code: This article is mentioned in the judgment as being relevant to the understanding of the structure of the education service in Bihar. The High Court noted that the +2 secondary schools were envisaged as part of the BSES as discernible from this Article.
• Section 9 and Section 15 of the Bihar Non-Government Secondary Schools (Taking over of Control and Management) Act, 1981: These sections are cited as the basis for the 2009 Rules, which the State government used to encadre the +2 lecturers with the teachers of nationalized schools. The Supreme Court found that these sections did not authorize the determination of service conditions of +2 lecturers and that the 2009 rules were beyond the ambit of the 1981 Act.
• Bihar Government Higher Secondary Schools (Service Conditions) (Amendment) Rules, 2009: These rules were introduced to amend the Bihar Taken-over Secondary Schools (Service Conditions) Rules, 1983, and to encadre the +2 lecturers with the teachers of nationalized secondary schools. The Supreme Court found these rules to be legally untenable.
• Bihar Education Service Rules, 2014: The Supreme Court observed that the rules introduced four sub-cadres in the BES, barring transfers from one sub-cadre to another, which was seen as a contrivance to maintain the pre-merger position.

The legal framework is primarily based on the interpretation of the Bihar Education Code, the 1981 Act, and the various rules framed thereunder. The Court also considers the principles of legitimate expectation and fairness in administrative action.

Arguments

Arguments by the State of Bihar (Appellants):

• The appointment letters of the +2 lecturers specifically mentioned that they were appointed in ex-cadre posts, and a decision regarding their separate cadre was pending.
• The posts of +2 lecturers did not exist in 1977 when the policy decision to merge BSES with BES was taken.
• The encadrement of +2 lecturers with nationalized school teachers was in conformity with the Bihar Non-Government Secondary Schools (Taking over of Control and Management) Act, 1981.
• The respondents had previously sought only pay scale parity with BSES members, and the current writ petition is barred by constructive res judicata and inordinate delay.
• Reference to BSES Selection Grade in the advertisement was only to identify the grade for the post, not to include them in the BSES cadre.

Arguments by the +2 Lecturers (Respondents):

• The policy decision of 13.11.1985 and Advertisement No. 1/87 clearly stated that the posts of +2 lecturers in government schools were created in the Junior Selection Grade of BSES.
• The term “ex-cadre” in the appointment order was only to allay the anxiety of assistant teachers in government secondary schools (BSES members) who feared loss of seniority.
• The 1981 Act controls the taking over of non-government secondary schools, and the 2009 Rules, framed under this Act, cannot encadre +2 lecturers of government schools with nationalized schools without relevant amendments.
• The +2 lecturers have always been treated as above the secondary school teachers in nationalized schools, and their encadrement with them is unjust.

Arguments by the Interveners (Bihar Education Service Association):

• Members of the BES Association should not lose seniority due to the merger of the +2 lecturers into the BES cadre from their initial date of appointment.
• Unless due rules are amended, neither executive action nor court orders can be a way out.
• The matter falls within the realm of state policy.
• The appointments were ex-cadre.

Innovativeness of the argument: The +2 lecturers innovatively argued that the term “ex-cadre” in their appointment letters was merely a measure to allay the fears of existing teachers, and not a reflection of their actual cadre status. This argument effectively countered the State’s primary defense.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue that the court addressed was:

1. Whether the +2 lecturers appointed pursuant to Advertisement No. 1/87 are part of the Bihar Subordinate Education Service (BSES) and are entitled to be merged with the Bihar Education Service Class II (BES).

The court also dealt with the sub-issue of whether the encadrement of +2 lecturers with the teachers of nationalized secondary schools through the 2009 Rules was valid.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• State of Bihar Vs. Janardan Rai, (2012) 13 SCC 59:* The Court referred to this case to highlight that the merger of BSES with BES was already upheld by the Supreme Court.
• Bihar Education Service Assn. Vs. State of Bihar, (2008) 1 BLJR 431:* The Court referred to this case to show the history of litigation and the fluctuating stance of the government.
• Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn., (2012) 13 SCC 33:* The Court referred to this case to show that the Supreme Court had restored the initial merger decision.
• Bihar State Government Secondary School Teachers Association Vs. Ashok Kumar Sinha, (2014) 7 SCC 416:* The Court referred to this case to highlight the court’s criticism of the 2014 rules which created sub-cadres and prevented the transfer of BSES members.
• CWJC No. 2445/1994 (Judgment dated 30.09.1997):* The Court relied upon this judgment to show that the artificial distinction between +2 lecturers in government and nationalized schools was obliterated, and that they were treated as equivalent to members of the BSES cadre.
• Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi, 1978 (1) SCC 405:* The Court used this case to emphasize that the validity of an order must be judged by the reasons mentioned therein, and supplementary reasons must be excluded.
• Commr. of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16:* The Court used this case to emphasize that public orders must be construed objectively with reference to the language used in the order itself.
• R. V. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Ltd., [1990] 1 W.L.R 1545:* The Court used this case to explain the doctrine of legitimate expectation and how fairness is a rationale for protecting legitimate expectations.
• R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213:* The Court used this case to explain that a public body cannot resile from a prima facie legitimate expectation, and that doing so would be an abuse of power.

What weighed in the mind of the Court?

The Court’s decision was heavily influenced by the following:

• The initial terms of service for the +2 lecturers, which clearly indicated their inclusion in the BSES cadre through the 1985 notification and Advertisement No. 1/87.
• The pay scale parity that was provided to the +2 lecturers with the BSES teachers, thereby reinforcing their claim to be part of the BSES cadre.
• The discriminatory and arbitrary nature of the State’s actions in denying the +2 lecturers the benefits of merger with the BES, and in encadring them with the teachers of nationalized schools.
• The doctrine of legitimate expectation, which was violated by the State’s actions.
• The State’s inconsistent and fluctuating stance on the merger issue, which led to a spate of litigations.

The Court’s reasoning was a combination of factual analysis and legal interpretation. The factual aspects included the initial terms of service, pay scale parity, and the discriminatory nature of the State’s actions. The legal aspects included the interpretation of the 1981 Act, the doctrine of legitimate expectation, and the principles of fairness in administrative action. The Court’s reasoning was primarily based on the factual matrix of the case, which was considered to be more crucial than the legal aspects.

Logical Reasoning

The Court considered alternative interpretations, including the State’s argument that the +2 lecturers were not part of the BSES cadre and that their encadrement with nationalized school teachers was valid. However, the Court rejected these interpretations, finding them to be inconsistent with the documentary evidence and the principles of fairness. The Court emphasized that the State’s actions were arbitrary and discriminatory, and that the +2 lecturers had a legitimate expectation of being treated as part of the BSES cadre. The final decision was reached by considering the totality of the circumstances, including the initial terms of service, the pay scale parity, and the conduct of the State.

The Supreme Court held that the +2 lecturers were indeed members of the Subordinate Educational Service and that the State Government must treat them as such. The Court found that the encadrement through notification dated 23.06.2009 frustrated the legitimate expectations of the respondents and was undertaken with the unfair aim to block their promotion. The Court also noted the repeated attempts by the State to favor those in the BES cadre. The judgment was delivered by a bench of two judges, with no dissenting opinions.

The court quoted the following from the judgment:

• “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”
• “If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. … The doctrine of legitimate expectation is rooted in fairness.”
• “In the Court’s opinion, if the government authority induced an expectation which was substantive, the upsetting of that expectation, through departure from the expected course of action in the absence of compelling public interest, would be so unfair, that it would amount to abuse of power.”

Key Takeaways

• +2 lecturers appointed pursuant to Advertisement No. 1/87 are considered part of the Bihar Subordinate Education Service (BSES) and are entitled to be merged with the Bihar Education Service Class II (BES).
• The State Government cannot deny benefits to a class of employees based on arbitrary classifications or supplementary reasons not found in their original orders.
• The doctrine of legitimate expectation ensures that public authorities cannot resile from a course of action that they have led individuals to expect, especially if it is to their detriment.
• The judiciary will intervene to prevent discriminatory and arbitrary actions by the government.

The judgment has significant implications for future cases involving service law and the rights of government employees. It reinforces the principles of fairness and legitimate expectation in administrative action. It also serves as a reminder that the government cannot arbitrarily change the terms of service for its employees. The decision may lead to similar claims by other categories of employees who have been denied their rightful benefits.

Directions

The Supreme Court directed the State of Bihar to comply with the High Court’s directions within 6 months.

Development of Law

The ratio decidendi of this case is that +2 lecturers appointed pursuant to Advertisement No. 1/87 are part of the Bihar Subordinate Education Service (BSES) and are entitled to be merged with the Bihar Education Service Class II (BES). This decision clarifies the status of these lecturers and prevents the State from arbitrarily denying them their rightful benefits. The judgment also reinforces the doctrine of legitimate expectation and the principle of fairness in administrative action. This decision does not change the previous positions of law but rather applies existing legal principles to a specific set of facts.

Conclusion

The Supreme Court’s judgment in State of Bihar vs. Shyama Nandan Mishra affirms that +2 lecturers appointed under Advertisement No. 1/87 are part of the Bihar Subordinate Education Service (BSES) and are entitled to the benefits of merger with the Bihar Education Service Class II (BES). The Court criticized the State Government’s inconsistent stance and arbitrary actions, emphasizing the principles of fairness and legitimate expectation in administrative law. This judgment protects the rights of the +2 lecturers and sets a precedent for similar cases involving service law and government employees.