Jagdish
Parsad Sinha & Ors Vs. Bhagwat Prasad & Ors [1989] INSC 217 (1 August 1989)
Misra
Rangnath Misra Rangnath Kuldip Singh (J)
CITATION:
1989 AIR 1794 1989 SCR (3) 658 1989 SCC (3) 610 JT 1989 (3) 257 1989 SCALE
(2)173
ACT:
Constitution
of India 1950: Articles 14 and 16---Service cadre--Bifurcation of--To provide
quick promotional avenues to those lower down in the joint cadre action held
ultra vires.
Civil
Services: Bihar Subordinate Education 'Service (Teaching Branch) Determination
of Seniority Rules: Secondary Education Service--Cadre Bifurcation of for
providing quick promotional avenues to those beyond the eligible
zone---Action--Held illegal and ultra vires.
HEAD NOTE:
On 20th February, 1975, the State Government published a
joint seniority list of teachers of subordinate Education Service belonging to
the Boys branch, and the Higher Secondary Teachers of the Subordinate
Educational Service. This joint gradation list was challenged before the High
Court, but the writ petition was dismissed as also an application for review of
the dismissal. The Special Leave Petition against the aforesaid decision was
dismissed by this Court on 30th March, 1981.
The
aforesaid single cadre known as Secondary Education Service was difurcated by
the State Government by its Notification dated 8th November 1986 under which the Subordinate Education Service (Teaching
Branch) Determination of Seniority Rules, were framed under the proviso to
Article 309 of the ConstitutionThis bifurcation scheme was challenged in the
High Court. The stand of the Government was that the demand for such
bifurcation was taken up in the legislature and in terms of the decision of the
Implementation Committee of the Bihar Legislative Council, the new scheme for
bifurcation had to he implemented. The High Court by its decision dated 27th November, 1987 quashed the Notification dated 18th November, 1986 under which the bifurcation was
done.
The
High Court was of the view that though the authority of the state to frame
rules in terms of the proviso to Article 309 was unquestionable, yet notice had
to he tam of time fact that those who stood 659 together and fell in line to
proceed further in the seniority list have to he 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, and held that the rules in the Notification dated 18th November, 1986
were ultra vires Articles 16(1) and 14 of the Constitution.
Dismissing
the Special Leave Petition to this Court,
HELD:
The High Court, rightly found fault with the State Government action, and
holding that the rules in the Notification dated 18th November, 1986 are ultra vires Articles 16(1) and 14 of the
Constitution. [660F] 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. [661C]
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 660 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 Constitution.
We do
not propose to predicate into what is alleged to be the mala fide of the
respondent State inasmuch as after the judgment 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 process of making rules in terms of proviso to Article 309
of the Constitution appeared and influenced the process. We 661 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.
Back