# STATE OF BIHAR & ORS v. THE BIHAR SECONDARY TEACHERS STRUGGLE COMMITTEE, MUNGER & ORS

- **Citation:** [2019] 7 S.C.R. 738
- **Court:** Supreme Court of India
- **Decided:** 2019-05-10
- **Case number:** Civil Appeal No. 4862 of 2019
- **Bench:** Abhay Manohar Sapre, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-ors-v-the-bihar-secondary-teachers-struggle-committee-munger-ors-34032
- **Pages:** 124

## Headnote

Service Law:
Pay parity/'Equal pay for equal work' - Sought by Niyojit
Teachers[appointed under Bihar Panchayat Elementary Teachers
(Employment and Service Conditions) Rules, 2006] - With the cadre
of Government teachers - Permissibility - Held: The cadre of
Government teachers with which parity is sought was a dying/
vanishing cadre - The mode of recruitment of Niyojit teachers was
completely different from that of the Government teachers - A pay
structure is normally evolved keeping in mind factors such as
'method of recruitment' and 'employer's capacity to pay' - The
distinction in process of recruitment is one of the limitations/
qualifications to the applicability of the doctrine of 'equal pay for
equal work' - The advances made by State on the front of spreading
education to the remotest corner of the State was possible only by
rational use of resources of the State - Best utilisation of resources
and which factors are to be emphasized more, are policy matters -
The attempt of the State in making over the process of selection to
Panchayati Raj Institutions and letting the cadre of State teachers
to be dying or vanishing cadre were part of the mechanism for
achieving object of spreading education and were part of integrated
policy - Judicial intervention in such matters can create tremendous
imbalance and cause great strain on budgetary resources - Thus,
there has been no violation of the rights of Niyojit Teachers nor
has there been any discrimination against them - Constitution of
India - Art.21 - Right of Children to Free and Compulsory
Education Act, 2009.
Doctrine:
Doctrine of 'equal pay for equal work' - Applicability of.
 [2019] 7 S.C.R. 738
738
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Allowing the appeals, the Court
HELD: Per U. U. Lalit, J. :
1. The cadre of Government Teachers with which parity or
equality has been sought by Niyojit Teachers [appointed under
Bihar Panchayat Elementary Teachers (Employment and Service
Conditions) Rules, 2006] 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 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. [Para 58]
[822-D-G]
2. 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.(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
STATE OF BIH

## Text

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SUPREME COURT REPORTS
[2019] 7 S.C.R.
STATE OF BIHAR & ORS.
v.
THE BIHAR SECONDARY TEACHERS STRUGGLE
COMMITTEE, MUNGER & ORS.
(Civil Appeal No. 4862 of 2019 etc.)
MAY 10, 2019
[ABHAY MANOHAR SAPRE AND UDAY UMESH LALIT. JJ.]
Service Law:
Pay parity/'Equal pay for equal work' - Sought by Niyojit
Teachers[appointed under Bihar Panchayat Elementary Teachers
(Employment and Service Conditions) Rules, 2006] - With the cadre
of Government teachers - Permissibility - Held: The cadre of
Government teachers with which parity is sought was a dying/
vanishing cadre - The mode of recruitment of Niyojit teachers was
completely different from that of the Government teachers - A pay
structure is normally evolved keeping in mind factors such as
'method of recruitment' and 'employer's capacity to pay' - The
distinction in process of recruitment is one of the limitations/
qualifications to the applicability of the doctrine of 'equal pay for
equal work' - The advances made by State on the front of spreading
education to the remotest corner of the State was possible only by
rational use of resources of the State - Best utilisation of resources
and which factors are to be emphasized more, are policy matters -
The attempt of the State in making over the process of selection to
Panchayati Raj Institutions and letting the cadre of State teachers
to be dying or vanishing cadre were part of the mechanism for
achieving object of spreading education and were part of integrated
policy - Judicial intervention in such matters can create tremendous
imbalance and cause great strain on budgetary resources - Thus,
there has been no violation of the rights of Niyojit Teachers nor
has there been any discrimination against them - Constitution of
India - Art.21 - Right of Children to Free and Compulsory
Education Act, 2009.
Doctrine:
Doctrine of 'equal pay for equal work' - Applicability of.
 [2019] 7 S.C.R. 738
738
A
B
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739
Allowing the appeals, the Court
HELD: Per U. U. Lalit, J. :
1. The cadre of Government Teachers with which parity or
equality has been sought by Niyojit Teachers [appointed under
Bihar Panchayat Elementary Teachers (Employment and Service
Conditions) Rules, 2006] 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 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. [Para 58]
[822-D-G]
2. 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.(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
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE
COMMITTEE, MUNGER
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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. [Para 68] [842-B-G]
3. 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. 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.
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. The mode of
recruitment of Niyojit Teachers is completely different from that
of the Government Teachers. [Para 76] [855-E-H; 856-A-B]
4. 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 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 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 the
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State had not faltered on any count. 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. [Para 77] [856-B-F]
5. 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 Right of Children to Free and Compulsory
Education Act, 2009 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 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. [Para 78] [856-G-H; 857-A-B]
6. There has been no violation of the Rights of the Niyojit
Teachers nor has there been any discrimination against them.
The efforts on part of the State Government cannot 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. [Para 79]
[857-B-C]
7. Great strides have been made by the State in the last
decade. It has galvanised itself into action and not only achieved
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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, has also improved to a great extent.
If these are the 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. [Para 79] [857-D-F]
8. At the initial stage the Niyojit Teachers were given such
emoluments which were 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 before this Court, the matter
raises concern. The teachers must be entitled to decent
emoluments. 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. [Para 80] [857-G-H; 858-A-C]
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State of Punjab vs. Joginder Singh 1963 Suppl. 2 SCR
169 ; Zabar Singh and others v. The State of Haryana
and others (1972) 2 SCC 275 : [1973] 1 SCR 608 -
followed.
State of Punjab and others v. Jagjit Singh and others
(2017) 1 SCC 148 : [2016] 7 SCR 350 - held per in
curium.
Nand Kishore Ojha v. Anjani Kumar Singh (2014) 11
SCC 405 ; Jaipal and others v. State of Haryana and
others AIR 1988 SC 1504 : [1988] 1 Suppl. SCR 411 ;
Tarsem Lal Gautam and another v. State Bank of Patiala
and others (1989) 1 SCC 182 : [1988] 3 Suppl.
SCR 479 ; V. Markendeya and others v. State of
Andhra Pradesh and others (1989) 3 SCC 191 : [1989]
2 SCR 422 ; Dharwad Distt. P.W.D. Literate Daily Wage
Employees Association and others v. State of Karnataka
and others (1990) 2 SCC 396 : [1990] 1 SCR 544 ;
Secretary, Finance Department and others v. West Bengal
Registration Service Association and others 1993 Supp
(1) SCC 153 : [1992] 1 SCR 897 ; State of U.P. and
others v. Ministerial Karamchari Sangh (1998) 1 SCC
422 : [1997] 4 Suppl. SCR 484 ; State of Haryana and
another v. Haryana Civil Secretariat Personal Staff
Association (2002) 6 SCC 72 : [2002] 1 Suppl. SCR
118 ; S.C. Chandra and others v. State of Jharkhand
and others (2007) 8 SCC 279 : [2007] 9 SCR 130 ;
Official Liquidator v. Dayanand and others (2008) 10
SCC 1 ; State of Punjab and another v. Surjit Singh
and others (2009) 9 SCC 514 : [2009] 12 SCR 394 ;
Steel Authority of India Limited and others v. Dibyendu
Bhattacharya (2011) 11 SCC 122 : [2010] 13 SCR
429 ; Gopal Chawala and others v. State of Madhya
Pradesh and others (2014) 13 SCC 792 ; M.M.L.
Aurora and others v. Union of India and others 1995
Supp (1) SCC 279 ; Bidi Supply Company v. The Union
of India and others 1956 SCR 267 ; The State of
Gujarat and another v. Shri Ambica Mills Limited,
Ahmedabad and another (1974) 4 SCC 656 : [1974] 3
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE
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SCR 760 ; The Superintendent and Remembrancer of
Legal Affairs, West Bengal v. Girish Kumar Navalakha
and others (1975) 4 SCC 754 : [1975] 3 SCR 802 ;
H.H. Shri Swamiji of Shri Amar Mutt and others v.
Commissioner, Hindu Religious and Charitable
Endowments Department and others (1979) 4 SCC
642 : [1980] 1 SCR 368 ; Col. A.S. Iyer and others v.
V. Balasubramanyam and others (1980) 1 SCC
634 : [1980] 1 SCR 1036 ; Javed Niaz Beg and another
v. Union of India and another 1980 Supp SCC 155 ;
Malpe Vishwanath Acharya and others v. State of
Maharashtra and another (1998) 2 SCC 1 : [1997] 6
Suppl. SCR 717 ; Javed and others v. State of Haryana
and others (2003) 8 SCC 369 : [2003] 1 Suppl.
SCR 947 ; State of Maharashtra and others v. Jalgaon
Municipal Council and others (2003) 9 SCC
731 : [2003] 1 SCR 1112 ; Sooraram Pratap Reddy and
others v. District Collector, Ranga Reddy District and
others (2008) 9 SCC 552 : [2008] 13 SCR 126 ;
Shivashakti Sugars Limited v. Shree Renuka Sugar
Limited and others (2017) 7 SCC 729 ; Kishori
Mohanlal Bakshi v. Union of India & Ors. AIR 1962
SC 1139 ; Randhir Singh v. Union of India and others
(1982) 1 SCC 618 : [1982] 3 SCR 298 ; State of
Haryana and others v. Jasmer Singh and others (1996)
11 SCC 77 : [1996] 8 Suppl. SCR 592 ; Orissa
University of Agriculture and Technology and another
v. Manoj K Mohanty (2003) 5 SCC 188 : [2003] 3 SCR
753 ; Government of W. B. v. Tarun K. Roy and others
(2004) 1 SCC 347 : [2003] 5 Suppl. SCR 656 ; Indian
Drugs & Pharmaceuticals Limited v. Workmen, Indian
Drugs & Pharmaceuticals Limited (2007) 1 SCC 408 :
[2006] 9 Suppl. SCR 73 ; Dhirendra Chamoli and
Another v. State of U.P (1986) 1 SCC 637 ; Bhagwan
Dass and others v. State of Haryana and others (1987)
4 SCC 634 : [1987] 3 SCR 714 ; Ashoka Kumar Thakur
v. Union of India and others (2008) 6 SCC 1 : [2008]
4 SCR 1 ; Society for Unaided Private Schools of
Rajasthan v. Union of India and Another (2012) 6 SCC
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1 : [2012] 2 SCR 715 ; Karnataka State Private College
Stop-Gap Lecturers Association v. State of Karnataka
and Others (1992) 2 SCC 29 : [1992] 1 SCR 397 ;
Baseeruddin M. Madari and others v. State of
Karnataka and Others 1995 Supp (4) SCC 111; State
of Uttar Pradesh and another v. Anand Kumar Yadav
and others (2018) 13 SCC 560 : [2017] 10 SCR 428 ;
Unni Krishnan, J.P. and others v. State of Andhra
Pradesh and others (1993) 1 SCC 645 : [1993] 1 SCR
594 ; M.C. Mehta v. State of T.N. and others (1996) 6
SCC 756 : [1996] 9 Suppl. SCR 726 ; Secretary, State
of Karnataka and others v. Umadevi (3) and others
(2006) 4 SCC 1 : [2006] 3 SCR 953 ; State of Gujarat
and Another v. Raman Lal Keshav Lal Soni and Others
(1983) 2 SCC 33 : [1983] 2 SCR 287 ; State of U.P.
and Others v. Chandra Prakash Pandey and Others
(2001) 4 SCC 78 : [2001] 2 SCR 506 ; Shayara Bano
v. Union of India and Others (2017) 9 SCC 1 : [2017]
7 SCR 797 ; E. P Royappa v. State of Tamil Nadu and
Another (1974) 4 SCC 3 : [1974] 2 SCR 348 ;
Hussainara Khatoon and Others (IV) v. Home Secretary,
State of Bihar, Patna (1980) 1 SCC 98 : [1979] 3 SCR
532 ; Khatri and Others (II) v. State of Bihar and Others
(1981) 1 SCC 627 : [1981] 2 SCR 408 ; Brij Mohan
Lal v. Union of India and Others (2012) 6 SCC 502 :
[2012] 5 SCR 305 ; Arindam Chattopadhyay and Others
v. State of West Bengal and Others (2013) 4 SCC 152 ;
Bihar State Government Secondary School Teachers
Association vs. Bihar Education Service Association and
others (2012) 13 SCC 33 : [2012] 11 SCR 50; State of
Uttar Pradesh and others v. Shiv Kumar Pathak and
others (2018) 12 SCC 595 : [2017] 7 SCR 905 ;
Municipal Council, Ratlam v. Shri Vardichand and others
(1980) 4 SCC 162 : [1981] 1 SCR 97 ; Secretary and
Mahatama Gandhi Mission and another v. Bhartiya
Kamgar Sena and others (2017) 4 SCC 449 ; Mohini
Jain v. State of Karnataka and others (1992) 3 SCC
666 : [1992] 3 SCR 658 ; State of Himachal Pradesh v.
H.P. State Recognised & Aided Schools Managing
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE
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Committees and others (1995) 4 SCC 507 ; Workmen
represented by Secretary v. Reptakos Brett. & Co.
Limited and another (1992) 1 SCC 290 : [1991] 2 Suppl.
SCR 129 ; Chandigarh Administration and others v.
Rajni Vali and others (2000) 2 SCC 42 : [2000] 1
SCR 158 ; Maneka Gandhi v. Union of India and
another (1978) 1 SCC 248 : [1978] 2 SCR 621 ; State
of Haryana and another v. Tilak Raj and others (2003)
6 SCC 123 : [2003] 1 Suppl. SCR 522 ; All India Bank
Employees' Association v. National Industrial Tribunal
and others (1962) 3 SCR 269 ; Navtej Singh Johar
and others v. Union of India through Secretary, Ministry
of Law and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379
;
Acharya
Maharajshri
Narendra
Prasadji
Anandprasadji Maharaj and others v. The State of
Gujarat and others (1975) 1 SCC 11 : [1975] 2 SCR
317 ; Assam Sanmilita Mahasangha and others v. Union
of India and others (2015) 3 SCC 1 ; Subramanian
Swamy v. Union of India, Ministry of Law and others
(2016) 7 SCC 221 : [2016] 3 SCR 865 ; Kishori
Mohanlal Bakshi v. Union of India AIR 1962 SC 1139
- referred to.
Per Abhay Manohar Sapre, J. : (Concurring)
HELD: The question involved in the present appeals needs
to be decided in the light of the law laid down by two decisions of
the Constitution Bench rendered in *Joginder Singh and **Zabar
Singh cases. Firstly because it is a decision rendered by the
Constitution Bench; secondly because it is prior in point of time;
and thirdly because the law laid down in later decisions has to be
read in the light of the law laid down by the Constitution Bench.
[Paras 9] [860-F-G]
*State of Punjab v. Joginder Singh 1963 Suppl (2) SCR
169 ; **Zabar Singh & Ors. v. State of Haryana and
Ors. (1972 ) 2 SCC 275 : [1973] 1 SCR 608 - followed.
Bidi Supply Co. v. Union of India & Ors. AIR 1956 SC
479 : [1956] SCR 267 ; N. Meera Rani v. Govt. of Tamil
Nadu & Anr. AIR 1989 SC 2027 : [1989] 3 SCR
901 - relied on.
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Rameshwar Shaw v. District Magistrate, Burdwan AIR
1964 SC 334 : [1964] SCR 921 - referred to.
Case Law Reference
In the Judgment of Uday Umesh Lalit, J:
(2014) 11 SCC 405
referred to
Para 17
[1988] 1 Suppl. SCR 411
referred to
Para 24
[1988] 3 Suppl. SCR 479
referred to
Para 31 (A)
[1989] 2 SCR 422
referred to
Para 31 (A)
[1990] 1 SCR 544
referred to
Para 31 (A)
[1997] 4 Suppl. SCR 484
referred to
Para 31 (A)
[2002] 1 Suppl. SCR 118
referred to
Para 31 (A)
[2007] 9 SCR 130
referred to
Para 31 (A)
(2008) 10 SCC 1
referred to
Para 31 (B)
[2009] 12 SCR 394
referred to
Para 31 (B)
[2010] 13 SCR 429
referred to
Para 31 (B)
(2014) 13 SCC 792
referred to
Para 31 (B)
1995 Supp. (1) SCC 279
referred to
Para 31 (B)
1956 SCR 267
referred to
Para 31 (C)
[1974] 3 SCR 760
referred to
Para 31 (C)
[1975] 3 SCR 802
referred to
Para 31 (C)
[1980] 1 SCR 368
referred to
Para 31 (C)
[1980] 1 SCR 1036
referred to
Para 31 (C)
1980 Supp SCC 155
referred to
Para 31 (C)
[1997] 6 Suppl. SCR 717
referred to
Para 31 (C)
[2003] 1 Suppl. SCR 947
referred to
Para 31 (C)
 [2003] 1 SCR 1112
referred to
Para 31 (C)
[2008] 13 SCR 126
referred to
Para 31 (C)
(2017) 7 SCC 729
referred to
Para 31 (C)
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[1963] Suppl. 2 SCR 169
referred to
Para 34
[1973] 1 SCR 608
referred to
Para 34
AIR 1962 SC 1139
referred to
Para 34
[1982] 3 SCR 298
referred to
Para 34
[1996] 8 Suppl. SCR 592
referred to
Para 34
[2003] 3 SCR 753
referred to
Para 34
[2003] 5 Suppl. SCR 656
referred to
Para 34
[2006] 9 Suppl. SCR 73
referred to
Para 34
(1986) 1 SCC 637
referred to
Para 36
[1987] 3 SCR 714
referred to
Para 36
[2008] 4 SCR 1
referred to
Para 37
[2012] 2 SCR 715
referred to
Para 37
[1992] 1 SCR 397
referred to
Para 37
1995 Supp (4) SCC 111
referred to
Para 37
[2017] 10 SCR 428
referred to
Para 37
[1993] 1 SCR 594
referred to
Para 38
[1996] 9 Suppl. SCR 726
referred to
Para 38
[2006] 3 SCR 953
referred to
Para 38
[1983] 2 SCR 287
referred to
Para 40
[2001] 2 SCR 506
referred to
Para 40
[2017] 7 SCR 797
referred to
Para 40
[1974] 2 SCR 348
referred to
Para 40
[1979] 3 SCR 532
referred to
Para 41
[1981] 2 SCR 408
referred to
Para 41
[2012] 5 SCR 305
referred to
Para 41
(2013) 4 SCC 152
referred to
Para 42
[2012] 11 SCR 50
referred to
Para 44
[2017] 7 SCR 905
referred to
Para 45
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[1981] 1 SCR 97
referred to
Para 46
(2017) 4 SCC 449
referred to
Para 46
[1992] 3 SCR 658
referred to
Para 48
(1995) 4 SCC 507
referred to
Para 48
[1991] 2 Suppl. SCR 129
referred to
Para 49
[2000] 1 SCR 158
referred to
Para 49
(1962) 3 SCR 269
referred to
Para 51
[2018] 7 SCR 379
referred to
Para 52
[1975] 2 SCR 317
referred to
Para 52
(2015) 3 SCC 1
referred to
Para 52
[2016] 3 SCR 865
referred to
Para 52
AIR 1962 SC 1139
referred to
Para 60
[2016] 7 SCR 350
held per in curium
Para 69
[1978] 2 SCR 621
followed
Para 74
[ 2003] 1 Suppl. SCR 522
followed
Para 74
[1992] 1 SCR 897
referred to
Para 75
In the Judgment of Abhay Manohar Sapre, J.
[1956] SCR 267
relied on
Para 3
1963 Suppl (2) SCR 169
followed
Para 6
[1973] 1 SCR 608
followed
Para 6
[1989] 3 SCR 901
relied on
Para 8
[1964] SCR 921
referred to
Para 8
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4862
of 2019.
From the Judgment and Order dated 31.10.2017 of the High
Court of Judicature at Patna in CWJC No. 21199 of 2013.
With
Civil Appeal Nos. 4872, 4867, 4866, 4864, 4865, 4869, 4863, 4868,
4870, 4871 of 2019.
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE
COMMITTEE, MUNGER
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SUPREME COURT REPORTS
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K. K. Venugopal, AG, P. S. Narsimha, ASG, Rakesh Dwivedi,
Shyam Divan, Dinesh Dwivedi, Lalit Kishore, Kapil Sibal, Vijay Hansaria,
Ranjit Kumar, Salman Khurshid, Ms.Vibha D. Makhija, C. A.Sundram,
V. Shekhar, V. N. Sinha, Sr. Advs. Gopal Singh, Manish Kumar, Shivam
Singh, Arjun Khazanchi, Ms. Sansriti Pathak, Udian Sharma,
Mrs. Madhavi Divan, Anmol Chandan, Ms. Suchindran Bhaskaran,
Ms. Shraddha Deshmukh, G. S. Makker, Animesh Kumar, Murari Kumar,
Neeraj Shekhar, Sumit Kumar, Ms. Anusha Nagarajan, Rohit Kumar
Singh, Ashutosh Thakur, Nitesh Ranjan, Ravi Kumar Singh, Rana
Prashant, Kumar Visalaksh, Abhay Kumar, Vineet Kr. Singh, Saurabh
Mishra, Himanshu Pal Singh, Amit Kumar Srivastava, Vikramaditya
Singh, Amit Wadhwa, C. K. Sharma, Sanjeev Kumar, Ms. Sofia Begum,
Vivek Tewari, Zafar Khurshid, Vipin Kumar Saxena, Devendra Tewari,
Prashant Bhushan, Prashant Shukla, Satyajeet Kumar, Govind Ji, Arvind
Kumar, Ms. Disha Vaish, Keshav Ranjan, Ms. Rohini Musa, Abhishek
Kr. Gupta, Ajay Kumar Singh, Satyendra Kr. Srivastav, Vinay Kumar,
Ramesh Tiwari, Kumar Gaurav, Robin Khokhar, Shashank Shekhar,
Prithviraj Singh, B. N. Dubey, Ms. Swarupama Chaturvedi, R. K. Singh,
Mrs. Neeraj Singh, Ms. Ritu Beniwal, Ravi Chandra Prakash, A. K.
Singh, Sushil Kumar, A. K. Upadhaya, P. Dayal, R. P. Dayal, Harshit
Sanwal, Dr. S. K. Verma, Karunakar Mahalik, Upendra Narayan Mishra,
Gaurav Yadav, Rakesh Kumar Singh, Ashok Anand, Bipin Bihari Singh,
Somanatha Padhan, Shyam Singh Chauhan, Sudhanshu Singh, Krishna
Kumar Singh, Atul Jha, Santosh Kumar Pandey, Durga Dutt, Vibhu
Shanker Mishra, Rohit Priyadarshi, Jitendra Nath Pathak, Sudhir Kumar
Singh, Ms. Shashi Singh, Dinesh Kr. Tiwary, Chandan Kumar,
Ms. Rajmala Dohare, S. K. Tripathi, Ms. Shama Sharma, Ms. Jaya
Kumari, Vikram Pathra Lekh, Ramesh Thakur, D. K. Mishra, R. P.
Goyal, Ragwendra Tiwary, Swami Nath, Ms. Jyoti Kumari, Amit Pawan,
Anand Nandan, Sumit Mishra, T. Sudhakar, Gaurav Yadava, Mohit Yadav,
Virendra Khurana, Durga Datt, Abhishek Yadav, Karunakar Mahalik,
Animesh Upadhyay, Sanjay Kumar Dubey, Sunny Jaiswal, Rajiv Ranjan
Dwivedi, Suman Kumar Divakar, Ms. Chhaya Kumari, Sushil Kumar,
Rajnish Bhaskar, Upendra Narayan Mishra, Anilendra Pandey,
Raghwendra Tiwari, Rahul Kumar, Sukesh Kumar Mishra, Pankaj Kumar
Mishra, Y. Lokesh, Surya Narayana Patro, M. Ram Prasad, Rana Ranjit
Singh, Vivek Kumar Singh, Ravish Singh, Jay Kumar Singh, Advs. for
the appearing parties.
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The Judgments of the Court were delivered by
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 Compulsory
Education Act, 2009 ('RTE Act', for short), the State was required to
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 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
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE
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SUPREME COURT REPORTS
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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.
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;
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(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".
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 selfgovernment 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".
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:-
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE
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"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:-
"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."
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"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 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.
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]
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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,
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."
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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).