STATE OF BIHAR & ORS.versusSHYAMA NANDAN MISHRA

1136                      [2022]
                SUPREME COURT    11 S.C.R. 1136
                              REPORTS                      [2022] 11 S.C.R.


 A                         STATE OF BIHAR & ORS.
                                         v.
                         SHYAMA NANDAN MISHRA
                          (Civil Appeal No.7364 of 2014)
 B                                MAY 05, 2022
               [K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
              Bihar Non-Government Secondary Schools (Taking over of
       Control and Management) Act, 1981 – ss.9, 15 – Bihar Taken over
       Secondary Schools (Service Conditions) Rules, 1983 – Bihar
 C
       Government Higher Secondary Schools (Service Conditions)
       (Amendment) Rules, 2009 – Bihar Education Code – Art. 790 –
       High Court declared that the +2 lecturers, both in the Government
       and the nationalized (taken over) secondary schools, appointed
       pursuant to adv.no.1/87, were always part of the Bihar Subordinate
 D     Education Service(BSES) and are entitled to be merged with the
       Bihar Education Service Class II (BES) pursuant to the Government
       decision dated 07.07.2006 – It also interfered with the impugned
       notification dated 23.06.2009 which provided for the encadrement
       of the +2 lecturers with the teachers in the nationalized secondary
       schools, which was found to be in contravention of Art.790 of the
 E
       Bihar Education Code and also contrary to the Government’s
       decision dated 07.07.2006 and the Adv. No. 1/87 – Impugned order
       dated 06.10.2006 and the notification dated 23.6.2009 were quashed
       and set aside – Justification of – Held: +2 lecturers’ posts were
       created in the BSES Cadre – This was represented in the Notification
 F     dated 13.11.1985, and also in the Adv. No. 1/87 – Conduct of the
       Government in providing pay scale parity with the BSES teachers
       in the secondary schools, reinforces such conclusion – These
       relevant and attending circumstances eclipse the implication of the
       ex-cadre reference in the appointment letters – The encadrement
       through notification dated 23.06.2009 has frustrated the legitimate
 G
       expectations of the respondents and was undertaken with the unfair
       aim to block the respondents’ promotion to key positions, particularly
       in the administrative wing of the Education department – Such
       unfairness in State’s action cannot be countenanced – +2 lecturers
       are indeed the members of the Subordinate Educational Service –
 H     State Government must treat the +2 lecturers appointed pursuant to
                                       1136
  STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                       1137


the Advertisement No. 1/87 as members of the Subordinate              A
Educational Service and all service benefits as the members of the
Subordinate Educational Service should be extended to them – No
reasons to interfere with the impugned judgment – Service Law.
     Doctrines/Principles – Doctrine of Legitimate Expectation –
Discussed.                                                            B
      Dismissing the appeals, the Court
       HELD: 1.1 It is evident from the Notification dated
13.11.1985 that the posts of + 2 lecturers (in the government
schools) were created in the cadre of BSES, in the pay scale of
Rs. 940-1660/-. The cadre for the +2 lecturers posted in the          C
nationalized schools was not specified therein, though the posts
were created in the same pay scale. The subsequent
Advertisement No. 1/87 also unequivocally stated that the
applications for +2 Lecturers in Government schools were invited
in the BSES Cadre in the pay scale of Rs. 940- 1660/-. Those          D
selected were then granted fortuitous appointment in either the
government or the nationalized schools. That the posts were
constituted in the BSES Cadre is adequately reinforced in the
judgment dated 30.09.1997 in the CWJC No. 2445/1994 by
Justice S.J Mukhopadhaya, through which, the artificial distinction
in both categories of +2 lecturers (posted in either Government       E
or Taken Over schools) was obliterated. It is a fact that the Bihar
Pradesh +2 Lecturers’ Association moved Court primarily for
redressal of the pay scale anomaly of the +2 lecturers appointed
in the Government and taken over schools, out of the common
advertisement No. 1/87. It was projected in those proceedings         F
that while accepting the 5th Pay Revision Committee’s
recommendations, the State Government provided for distinct
pay scales to lecturers serving in the Government Secondary
Schools and the Nationalized Secondary Schools. The Court
noticed the discrimination between both sets of lecturers,
performing similar duty with similar nature of job and same           G
qualifications. The +2 lecturers accordingly were held entitled to
same scale of pay, i.e., Rs. 2000- 3500/- as fixed for the members
of the Subordinate Education Service (Junior Selection Grade).
This way, not only the pay difference was eliminated but more
significantly for this case, the lecturers serving in Government/     H
1138           SUPREME COURT REPORTS                     [2022] 11 S.C.R.


 A     Nationalized +2 schools were treated as equivalent to members
       of the BSES cadre by offering the same pay scale attached to the
       BSES members. Subsequently, in compliance of the judgment,
       the Finance Department notified the common pay scale of Rs.
       2000- 3500/- for the +2 lecturers in the Taken Over schools vide
       its Resolution dated 10.06.1999, thereby effectively treating them
 B
       to be at par with the Subordinate Education Service teachers.
       [Paras 20, 21][1150-B-G]
              1.2 The above situation would negate the State’s contention
       that the +2 lecturers are outside the BSES cadre, only because
       the appointment letters stated that their appointment was against
 C     ex-cadre posts on temporary basis. Significantly, the pay scale
       mentioned in the appointment order was Rs. 940-1660/-, which
       matched the pay scale offered to the lecturers in the Junior
       Selection Grade of the BSES (as reflected in the notification dated
       13.11.1985 and the advertisement No. 1/87). The appointment
 D     letter is at variance with all other relevant documents, such as
       the advertisement; the notification (13.11.1985) creating the posts
       in BSES; as well as the Finance Department notifications, offering
       pay scale equivalent to the members of the BSES. The
       appointment letters, despite suggesting the post to be of ex-cadre
       category, notably offered the same pay scale attached to
 E     Government school lecturers in the BSES Cadre. [Paras 22,
       23][1150-H; 1151-A-D]
             1.3 It is also argued by the State’s counsel that the
       recommendations of the Saran Singh Committee cannot be applied
       qua the respondents, since the posts of +2 lecturers were not in
 F     existence in 1977 and were created only in 1985. On this, it is
       seen that the government is closemouthed and rather vague on
       the total posts which existed in 1977; how many posts were
       created subsequently and the precise number of posts which
       existed as on 07.07.2006. Therefore, the State cannot be allowed
 G     to raise such contentions when they have failed to disclose how
       many posts existed initially and the stages at which, additional
       posts were created by the government. Besides, the merger
       decision (07.07.2006) pertinently omitted to say that only posts
       in existence in 1977, were intended to be merged. Moreover,

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  STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                        1139


the Government decision (06.10.2006), through which the +2             A
lecturers were denied the benefit of merger with the BES, was
not founded on the ground that posts of +2 lecturers were not
borne in 1977. The ostensible reason was that the +2 lecturers
were never recognized in the BSES. Such attempt by the
government to supplement reasons, not found in their order,
                                                                       B
cannot legally be permitted. In situation of this kind, the ratio in
Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi
is worth remembering where the Court so correctly declared that
validity of an order by a statutory functionary must be judged by
the reasons mentioned therein and supplementary reasons in the
shape of affidavits must be excluded. The State must not be            C
allowed to bring in additional explanation to justify their actions
when those are conspicuous by their absence, in the government
decision. [Paras 24-26][1151-E-H; 1152-A-B]
      Mohinder Singh Gill Vs. Chief Election Commissioner,
      New Delhi 1978 (1) SCC 405 : [1978] 2 SCR 272;                   D
      Commr. of Police, Bombay Vs. Gordhandas Bhanji AIR
      1952 SC 16 : [1952] SCR 135 – relied on.
      1.4 No intelligible differentia could be pointed out by the
state’s counsel to sustain arbitrary classification between +2
lecturers and the BSES secondary level teachers, posted in             E
government schools. [Para 27][1152-F]
      1.5 Significantly, as per Advertisement 1/87, the lower pay
scale of Rs. 850 – 1360/- was offered to the teachers in the
Secondary Schools in the cadre of BSES as compared to the pay
scale offered to the + 2 lecturers. Furthermore, the academic          F
qualifications specified therein for + 2 Lecturers was Post
Graduation in 2nd division, whereas for other posts, a bare
graduate would satisfy the prescribed qualification. As such, the
exclusion of the respondents from the BSES cadre and
consequently from BES, despite rendering continuous services
in the same government secondary schools as teacher members            G
of the BSES, has led to a discriminatory situation, wherein, the
BSES teachers who are junior (in terms of education qualifications
and pay scale) to the respondents in Government secondary

                                                                       H
1140            SUPREME COURT REPORTS                      [2022] 11 S.C.R.


 A     schools, have got the benefit of higher scale of pay and also
       avenues of promotion to key controlling positions in the education
       department. This would surely infringe the rights of the +2
       lecturers, guaranteed under Article 14 and Article 16(1) of the
       Constitution. Instead of rectifying the anomalous situation noticed
       above, the Government, in a rather arbitrary fashion and without
 B
       any application of mind to the issue, vide notification dated
       23.06.2009, surprisingly positioned the +2 lecturers at par with
       the teachers of the nationalized secondary schools. The
       unacceptable justification given for this is that as a result of the +
       2 lecturers’ placement into the cadre of nationalized school
 C     teachers, the +2 lecturers have been provided the promotional
       avenue to academic posts of Head Master, and higher scale has
       also been provided for them. However, the +2 lecturers are
       conspicuously denied the opportunities for promotion to key
       administrative posts which is available to those in the BES Cadre.
       Such arbitrary action of the government in favoring the BES
 D
       officers to enable them to exclusively occupy the key
       administrative posts, was noticed and was subjected to court’s
       caustic comments in the previous rounds of litigation8. Having
       read those and also taking into account the repeated attempts by
       the state to inordinately favour those in the BES cadre, we are
 E     constrained to observe that the state government is not acting
       bonafide and is persisting in their iniquitous attempt to deny to
       the respondents, what is legitimately due to them. [Paras 28,
       29][1152-G; 1153-A-E]
             1.6 The following discriminatory action of the State is
 F     necessary to be noticed to indicate their iniquitous conduct.
       Firstly, the Bihar Non-Government Secondary Schools (Taken
       over of Control and Management) Act, 1981, does not authorize
       determination of the service conditions of the +2 lecturers. The
       1981 Act was intended to provide for “taking over” of non-
       government secondary schools under the state control, for
 G     improvement, better organization and development of Secondary
       Education in the state of Bihar. The +2 lecturers in government
       schools cannot be encadred with teachers of ‘Taken Over Schools’
       since the definition of ‘Teacher’ in the 1981 Act shows ‘Teacher
       in the Taken Over Secondary Schools’. Section 9 enables the
 H
  STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                       1141


State Government to determine the service conditions of the           A
Headmaster, Teacher and non-teaching staff of only the Taken
Over Secondary Schools(but not of government schools). Neither
section 9 nor Section 15 of the 1981 Act empowers the State
Government to amend Rules to expand the scope of the Act. As
such, the 2009 Rules, introducing the notification (23.06.2009),
                                                                      B
purported to be framed under section 9 read with section 15 of
the 1981 Act, are found to be at variance with the provisions and
the purpose of the 1981 Act. The Notification (23.06.2009) is
well beyond the ambit of the 1981 Act, and could not therefore
have been issued, without the necessary amendments to the 1981
Act. [Para 30][1153-F-H; 1154-A-B]                                    C
      1.7 The notification (23.06.2009) besides being legally
untenable, would also deny the substantive legitimate
expectations, the respondents nurtured, as members of the
government schools in the BSES cadre. The denial is particularly
glaring in the absence of promotional avenues for the respondents     D
to the controlling/supervisory posts in the administrative wing of
the education department. The respondents, in course of their
service as +2 Lecturers, would reasonably expect to occupy the
higher position in the department, depending upon their inter-se
seniority in the common seniority list, but the Government action,
restricting movement through artificial sub-grouping of +2            E
Lecturers with teachers of nationalized schools, have unreasonably
belied their expectation. This would suggest that the respondents
were led up the garden path by the appellants. [Para 31][1154-C-
E]
      1.8 In the present case, the abuse of power is discernible      F
in the State’s disparate decision in encadring the +2 lecturers
with the teachers of nationalized schools, notwithstanding the
contrary representation through the 1985 notification which
created the +2 lecturer posts and the 1987 advertisement under
which, the respondents entered service. Such manifest departure       G
from the projected course smacks of arbitrariness and the
government action, to selectively protect the interest of the BES
cadre, does not conform to rules of justice and fair play.Where
the substantive legitimate expectation is not ultra vires the power
of the authority and the court is in a position to protect it, the
                                                                      H
1142            SUPREME COURT REPORTS                     [2022] 11 S.C.R.


 A     State cannot be allowed to change course and belie the legitimate
       expectation of the respondents. As is well known, Regularity,
       Predictability, Certainty and Fairness are necessary concomitants
       of Government’s action and the Bihar government in our opinion,
       failed to keep to their commitment by the impugned decision,
       which we find was rightly interdicted by the High Court. [Paras
 B
       33, 34][1154-G-H; 1155-A-D]
             R v. North and East Devon Health Authority Ex p.
             Coughlan, [2001] QB 213 – referred to.
             1.9 In the earlier rounds, this court in Bihar State Govt.
 C     Secondary School Teachers Assn. Vs. Bihar Education Service
       Assn. and also in the Contempt proceedings flowing therefrom
       in Bihar State Govt. Secondary School Teachers Assn. Vs. Ashok
       Kumar Sinha critically noted the vigorous attempts by the BES
       Association in obstructing the integration of the BSES with the
       BES and the unfair conduct of the Bihar government in
 D     safeguarding the interests of those in the BES cadre. Those
       previous challenges to the merger decision were rejected by the
       Court. As such the BES Association, as the party watching from
       the wings, cannot be permitted to secure now what they failed to
       achieve in the previous litigations. In circumstances like this it
 E     needs to be said that in an adversarial litigation, the fence sitters
       cannot be placed at par with the front runners. [Para 36][1156-A-
       C]
             1.10 The +2 lecturers’ posts were created in the BSES
       Cadre. This was represented in the Notification (13.11.1985), and
 F     also in the Advertisement No. 1/87. The conduct of the
       Government in providing pay scale parity with the BSES teachers
       in the secondary schools, reinforces such conclusion. These
       relevant and attending circumstances eclipse the implication of
       the ex-cadre reference in the appointment letters. What is also
       discernible is that the encadrement through notification dated
 G     23.06.2009 has frustrated the legitimate expectations of the
       respondents and was undertaken with the unfair aim to block the
       respondents’ promotion to key positions, particularly in the
       administrative wing of the Education department. Such unfairness
       in State’s action cannot be countenanced by Court. Resultantly
 H
  STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                            1143


we record our approval with the reasoning and conclusions in               A
the impugned judgment in favour of the +2 lecturers to the effect
that they are indeed the members of the Subordinate Educational
Service and the State Government must treat the +2 lecturers
appointed pursuant to the Advertisement No. 1/87 as members
of the Subordinate Educational Service and all service benefits
                                                                           B
as the members of the Subordinate Educational Service should
therefore be extended to them. [Para 37][1156-C-F]
      State of Bihar Vs. Janardan Rai , (2012) 13 SCC 59;
      Bihar State Govt. Secondary School Teachers Assn. Vs.
      Bihar Education Service Assn. (2012) 13 SCC 33 :
      [2012] 11 SCR 50; Bihar State Government Secondary                   C
      School Teachers Association Vs. Ashok Kumar Sinha
      (2014) 7 SCC 416 : [ 2014] 7 SCR 371 – referred to.
      Bihar Education Service Assn. Vs. State of Bihar , (2008)
      1 BLJR 431 – referred to.
                                                                           D
      R. V. Inland Revenue Commissioners, ex parte M.F.K.
      Underwriting Agents Ltd. [1990] 1 W.L.R 1545 –
      referred to.
                        Case Law Reference
[2012] 11 SCR 50                 referred to              Para 7           E
[ 2014] 7 SCR 371                referred to              Para 8
[1978] 2 SCR 272                 relied on                Para 25
[1952] SCR 135                   relied on                Para 26
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.7364                  F
of 2014.
      From the Judgment and Order dated 30.04.2013 of the High Court
of Patna at Patna in CWJC No.18793 of 2008.
      With                                                                 G
      Civil Appeal Nos.7371, 7373, 7365, 7368 And 7374 of 2014.
      P. S. Patwalia, Sr. Adv., Abhinav Mukerji, Ms. Pratishtha Vij, Ms.
Bihu Sharma, Advs. for the Appellants.

                                                                           H
1144            SUPREME COURT REPORTS                         [2022] 11 S.C.R.


 A            Vijay Hansaria, V. N. Sinha, Vinay Navare, Sr. Advs., Ms. Sharmila
       Upadhyay, Akhilesh Kumar Pandey, Ms. Shalini Chandra, Shantanu
       Sagar, Gunjesh Ranjan, Anil Kumar, Satyajeet Kumar, Ms. Gwen
       Karthika, Ms. Divya Roy, Advs. for the Respondent.
              The Judgment of the Court was delivered by
 B            HRISHIKESH ROY, J.
              1. Heard Mr. P.S. Patwalia, learned Senior Counsel appearing for
       the appellants. Also, heard Mr. Vinay Navareand Mr. V.N. Sinha, learned
       Senior Counsels appearing for the contesting respondents. The Intervener
       is represented by Mr. Vijay Hansaria, learned Senior Counsel.
              2. The challenge here is to the judgment and order dated 30.4.2013
 C
       in CWJC Case No. 18793 of 2008 and analogous cases whereby the
       Division Bench of the High Court at Patna, granted relief to the writ
       petitioners and declared that the +2 lecturers, both in the Government
       and the nationalized (taken over) secondary schools, appointed pursuant
       to Advertisement No.1/87, have always been part of the Bihar
 D     Subordinate Education Service(for short “BSES”)and thereby, they
       are entitled to be merged with the Bihar Education Service Class II
       (for short “BES”), pursuant to the Government decision dated 07.07.2006.
       The Court also interfered with the impugned notification dated 23.6.2009,
       which provided for the encadrement of the +2 lecturers with the teachers
       in the nationalized secondary schools, which was found to be in
 E     contravention of Article 790 of the Bihar Education Code and also contrary
       to the Government’s decision dated 07.07.2006 and the Advertisement
       No. 1/87. Thus, the impugned order dated 6.10.2006 and the notification
       dated 23.6.2009 were quashed and set aside.
              3. At the outset, it is imperative to take note of the relevant
 F     background and the previous litigation rounds which led to the present
       proceedings.
                                      BACKGROUND
              4. The Government of Bihar constituted a committee headed by
       Shri Saran Singh in 1976, to address the problem of stagnation etc. in
       Bihar Civil Service and to consider opportunities for promotion. The
 G     committee’s recommendations with respect to the Bihar Education
       Department included the integration of 59 posts in the miscellaneous
       cadre (comprising of teachers, professors,etc, who held isolated posts
       with no definite prospects of promotion), into the Bihar Education
       Service Cadre. In line with these recommendations, the Government
 H     issued Regulation dated 11.04.1977, upgrading 2465 sanctioned posts of
    STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                                 1145
                  [HRISHIKESH ROY, J.]

teachers of subordinate education service male and female cadre, into             A
Bihar Education Service Class II w.e.f01.01.1977.
       5. The Association representing the teachers of the BSES filed a
writ petition in the Patna High Court claiming merger of their cadre with
the BES, pursuant to the resolution dated 11.04.1977. The writ petition
was allowed on 02.02.2000 and the subsequent LPA and SLP were
                                                                                  B
dismissed. Since the consequential benefits of the merger were still not
forthcoming, another writ petition was filed, which too was allowed and
affirmed in the LPA. The civil appeal before this court was dismissed on
19.04.20061, deciding the outcome in favor of the writ petitioners, i.e.,
the members of the BSES.
       6. In compliance of the aforesaid judgment of this Court, a                C
Resolution dated 07.07.2006 was issued, whereby the cadre of BSES
(Teaching Branch) (Male and Female Teachers) was merged with the
BES, Class–II w.e.f. 01.01.1977. At this stage, members of the BES
Association, apprehending adverse impact on their inter-se seniority, filed
a writ petition, challenging the merger. A Single Judge of the High Court
allowed the WP on 31.10.20072. Immediately after this judgment, the               D
State Government (without waiting for the outcome of the LPA),in
compliance of the Single Judge judgment, quashed the merger resolution
vide notification dated 19.11.2007, thereby withdrawing the financial
benefits flowing therefrom.
       7. The decision of the Single Judge was affirmedby the Division            E
Bench. The resultant SLP and the appeal therefrom was ultimately
allowed by this Court ina detailed judgment dated 23.11.2012 3.
Consequently, the initial government decision (07.07.2006), by which
the cadre of the BSES teachers (teaching branch)was merged with the
BES, stood restored and the State was directed to act accordingly. In
arriving at the conclusion, the Supreme Court pertinently observed that           F
once the merger decision was already upheld by this court in earlier
rounds of litigation and was also acted upon by the State, the High Court
should not have reopened the matter at the instance of the BES
Association. The fluctuating stand and indecisiveness of the government
was also noted with displeasure by the Supreme Court in its judgment.
                                                                                  G
       8. The government, however, was dilly-dallying on the aspect of
restoration of the earlier position, consequent upon the merger of the
1
  State of Bihar Vs. Janardan Rai ,(2012) 13 SCC 59
2
  Bihar Education Service Assn. Vs. State of Bihar , (2008) 1 BLJR 431
3
  Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service
Assn.,(2012) 13 SCC 33                                                            H
1146               SUPREME COURT REPORTS                        [2022] 11 S.C.R.


 A     two cadres. Ultimately, contempt proceedings were initiated by the
       disgruntled members of the BSES in Bihar State Government
       Secondary School Teachers Association Vs. Ashok Kumar Sinha4,
       wherein this court had the occasion to observe that the Bihar Education
       Service Rules, 2014 were in the teeth of the judgment rendered on
       23.11.20125. This was because the Government had introduced four sub-
 B     cadres in the BES (merged entity) under 2014 Rules, conspicuously
       barring transfer from one sub-cadre into another. Those in the BSES
       were placed in the teaching sub-cadre, where Principal would be the
       highest promotional post whereas those in the BES were put in
       administrative sub-cadre, who would continue to control the school
 C     administration as before. The teaching sub-cadre was yet again isolated
       and also treated as a “dying cadre”. Through this act of the government,
       those in the BSES were effectively prevented from being transferred
       and posted in the administrative sub-cadre. Glaringly, Rule 27 gave option
       to members of the other sub-cadres for inclusion in a different cadre on
       fulfillment of prescribed qualifications, but no such option was made
 D     available to the teaching sub-cadre.
               9. Noticing the above attempt to deny equal benefits to the BSES
       cadre vis-à-vis the BES cadre, the Supreme Court significantly observed
       that the promulgation of the 2014 Rules by the Bihar government,
       amounted to circuitous contrivance, to maintain the position which existed
       prior to the merger and to unjustly protect the interest of those in the
 E
       BES. Accordingly, directions were issued to revive the combined gradation
       list or in the alternative, to suitably amend Rule 27 to give effect to the
       real purpose of the merger.
                                   PRESENT LITIGATION
               10. The facts germane to the present appeal are now to be noted.
 F     The Bihar Government in 1979 introducedthe 10+2+3 education pattern
       (i.e. 10 years of schooling, 2 years of higher secondary and 3 years of
       college graduation). At the relevant time, in the absence of sufficient
       infrastructure, higher secondary education was imparted by colleges.The
       posts of +2 lecturers were sought to be created to impart +2 level teaching.
 G             11. Pursuant to the above decision,the BiharGovernment on
       13.11.1985sanctioned 148 posts of lecturers in Subordinate Service
       Selection Grade for government schools and264 posts of lecturers in
       nationalized schools, providing common pay scale of Rs. 940-1660 for
       4
           (2014) 7 SCC 416
       5
           Supra
 H
  STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                               1147
                [HRISHIKESH ROY, J.]

both categories of lecturers. It may be highlighted that only the posts of    A
the +2 lecturers in the Government schools were specified to be in the
BSES Selection Grade. Thereafter, the Bihar School Service Board issued
the advertisement No. 1/87, initiating the process of selection. The
advertisement, pertinently, reflected the following:-
       “Class – I:
                                                                              B
       Lecturers in the Subordinate Service Grade in the +2 Stream (Inter
       level) Government Boys/Girls High Schools.
         ****                       ****                     ****
       Academic Qualification:
       For the Cass – I posts: Second class Post Graduation Degree in         C
       the concerned subject from a recognized university.
       For the Class -II and III posts of the Subordinate Education Service
       (Education Branch) for both male and female categories:
       Trained graduate in the concerned Subject.” (SIC)
         ****                       ****                     ****             D
       The candidates were to apply for posts of lecturer in the
Subordinate service grade and the advertisement prescribed Post
Graduation in 2nd division, as necessary qualification for the posts.
       12. The selected candidates were then issued the appointment
orders, which reflected that the appointments were being made to newly
                                                                              E
created ex-cadre posts in +2 schools, on ad-hoc and temporary basis.
These temporary appointments werecontinued for succeeding academic
years under various government notifications, issued from time to time.
       13. The main cause for the present litigation is that while
implementing the merger decision (07.07.2006), an exception was carved
out by the government on 06.10.2006, whereunder, the benefit of merger        F
into BES was denied to the +2 lecturers in Government schools. The
ostensible premise for the deviation was that the +2 lecturers were never
treated or recognized as part of the BSES cadre. The +2 lecturersbeing
aggrieved thus, moved the High Court in CWJC 14009/2006 and other
connected writ petitions, contending that their posts were created in the
BSES. This position was also reflected in the advertisement No. 1/87          G
through whichthey were recruited.In effect, the benefits of the merger
with the BESwere claimed in these matters.
       14. During the pendency of the above Writ Petitions in the High
Court, the State Government on 23.06.2009, in exercise of powers under
Section 9 read with Section 15 of the Bihar Non-Government                    H
1148             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


 A     Secondary Schools (Taking over of Control and Management) Act,
       1981, framed the Bihar Government Higher Secondary Schools
       (Service Conditions) (Amendment) Rules, 2009 (for short “2009
       Rules”)and notably decided to amend the Bihar Taken- over Secondary
       Schools (Service Conditions) Rules, 1983.Through the 2009
       amendment, the lecturer was defined to mean the +2 lecturers who
 B     were appointed pursuant to the Advertisement No. 1/87 and they were
       encadred with the nationalized secondary school teachers.
              15. As a result of the aboveencadrement with the teachers of the
       nationalized school category, further challenge was generated in the High
       Court by the +2 lecturers.It was specifically contended that the +2
 C     lecturers have always been treated as above the secondary school
       teachers in nationalized schools and therefore encadrement of the two
       unequals is unjust.
              16. The High Court in the impugned judgment categorically held
       that the +2 lecturers who were appointed pursuant to Advertisement
       No. 1/87, were always a part of the BSES. Concomitantly, the artificial
 D     grouping of +2 lecturers with the teachers of nationalized schools (vide
       notification 23.06.2009), was found to be unjustified and interdicted. While
       concluding thus, the High Court noted that Advertisement No.1/87
       specifically mentioned Subordinate Education Service.Besides the “plus
       two secondary schools”, where the lecturers were imparting education,
 E     were envisaged as part of the BSES as was clearly discernable from
       Article 790 of the Bihar Education Code. While opining in favour of the
       present respondents, the Court relied upon the earlier judgment
       (30.9.1997) of Justice S.J. Mukhopadhaya in CWJC No. 2445/1994 to
       say that postings in either the government or nationalized schools at the
       relevant time were fortuitous and the rights of +2 lecturers would not
 F     depend on their chance postings in either of the schools. The Division
       Bench also gathered that mere reference to ex-cadre posts in the
       appointment letters and lack of decision by government in assimilating
       the + 2 lecturers into the cadre of mainstream teacher, will not deprive
       them of their legitimate rights. The Court took a dim view of the
       indecisiveness and fluctuating stand of the Bihar government which led
 G     to a spate of litigations.Thus, relief was granted to the respondents with
       the declaration that the +2 lecturers of both schools, who were appointed
       under the Advertisement no. 1/87, have always been part of the BSES
       and consequently of the BES.
              17. Challenging the impugned judgment, Mr. P.S. Patwalia, learned
 H     senior counsel in the appeal arising out of the lead SLP, submits for the
  STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                                  1149
                [HRISHIKESH ROY, J.]

State of Bihar that the appointment letters specifically mention that the        A
+2 Lecturers were appointed in Ex Cadre Posts and the decision with
respect to their separate cadre formation was to be taken shortly. Further,
the posts of + 2 lecturers were not in existence in 1977, when the policy
decision to merge BSES with BES was taken. According to Mr. Patwalia,
the encadrement is in conformity with the Bihar Non-Government
Secondary Schools (Taking over of Control and Management) Act,                   B
1981, since the recruitment of the + 2 lecturers was made by the School
Service Board which is a statutory body formed under section 10 of the
Act. Appellant’s nextsubmission is that in previous rounds of litigation,
the respondents sought only pay scale parity with members of the BSES
and as such, the Writ Petition in the High Court in the current roundis          C
barred by the principles of constructive res judicata besides inordinate
delay.The reference to the BSES, Selection Grade in the
Advertisement,according to the State’s counsel,was made only to identify
the grade for the post of lecturers but not for the purpose of their inclusion
into the BSES cadre.
       18. On the other hand, Mr. Vinay Navare, learned Senior Counsel           D
appearing on behalf of the + 2 lecturers (respondents) would argue that
the terms of the policy decision dated 13.11.1985 as well as the
Advertisement No. 1/87 are unambiguous and it is clearly set out that
the posts of + 2 lecturers in Government schools are createdin the Junior
Selection Grade of BSES. According to Mr. Navare, the expression ex-
                                                                                 E
cadre in the appointment order was incorporated only to allay the anxiety
of the Assistant Teachers in the Government Secondary Schools
(members of the BSES), who because of merger, apprehended loss of
their seniority to the +2 lecturers. The 1981 Act controls taking over of
Non-government Secondary Schools and the notification introduced by
the 2009 Rules, framed under the 1981 Act, for encadrement of the +2             F
lecturers of the Government schools with the nationalized schools, without
the relevant amendments to the 1981 Act, is argued by Mr. Navare to be
neither conclusive nor legally acceptable.
       19. In his turn, Mr. Vijay Hansaria, the learned Senior Counsel
representing the interveners i.e. the Bihar Education Service Association
arguesthat the members of the BES Association should not lose out on             G
seniority, on account of the merger of the contesting respondents into
the BES Cadre, from the initial date of their appointment. This is apart
from pointing to the Bihar Education Service Class-I and Bihar Education
Service Class-II Rules 1973 and submitting that unless due rules are
amended, neither executive action nor court orders can be a way out.
                                                                                 H
1150            SUPREME COURT REPORTS                          [2022] 11 S.C.R.


 A     He further contended that the matter falls in the realm of state policy.The
       aspect of the appointments being ex-cadre is stressed.
                              DISCUSSIONS AND FINDINGS
               20. It is evident from the Notification dated 13.11.1985 that the
       posts of + 2 lecturers (in the government schools) were created in the
 B     cadre of BSES, in the pay scale of Rs. 940-1660/-. The cadre for the +2
       lecturers posted in the nationalized schools was not specified therein,
       though the posts were created in the same pay scale. The subsequent
       Advertisement No. 1/87 also unequivocally stated that the applications
       for +2 Lecturers in Government schools were invited in the BSES Cadre
       in the pay scale of Rs. 940- 1660/-. Those selected were then granted
 C     fortuitous appointment in either the government or the nationalized
       schools.
               21. That the posts were constituted in the BSES Cadre is adequately
       reinforced in the judgment dated 30.09.1997 in the CWJC No. 2445/
       1994 by Justice S.J Mukhopadhaya, through which, the artificial distinction
 D     in both categories of +2 lecturers (posted in either Government or Taken
       Over schools) was obliterated. It is a fact thatthe Bihar Pradesh +2
       Lecturers’ Association moved Court primarily for redressal of the pay
       scale anomaly of the +2 lecturers appointed in the Government and taken
       over schools, out of the common advertisement No. 1/87. It was projected
       in those proceedings that while accepting the 5 th Pay Revision
 E     Committee’s recommendations, the State Government provided for
       distinct pay scales to lecturers serving in the Government Secondary
       Schools and the Nationalized Secondary Schools. The Court noticed the
       discrimination between both sets of lecturers, performing similar duty
       with similar nature of job and same qualifications. The +2 lecturers
       accordingly were held entitled to same scale of pay, i.e., Rs. 2000-3500/
 F     - as fixed for the members of the Subordinate Education Service (Junior
       Selection Grade). This way, not only the pay differencewas eliminated
       but more significantly for this case,the lecturers serving in Government/
       Nationalized +2 schools were treated as equivalent to members of the
       BSES cadre by offering the same pay scale attached to the BSES
       members. Subsequently, in compliance of the judgment, the Finance
 G
       Department notified the common pay scale of Rs. 2000- 3500/- for the
       +2 lecturers in the Taken Over schools vide its Resolution dated
       10.06.1999,therebyeffectively treating them to be at par with the
       Subordinate Education Service teachers.
               22. The above situation would negate the State’s contention that
 H     the +2 lecturers are outside the BSES cadre, only because the
  STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                               1151
                [HRISHIKESH ROY, J.]

appointment letters stated that their appointment was against ex-cadre        A
posts on temporary basis. Significantly, the pay scale mentioned in the
appointment order was Rs. 940-1660/-, which matched the pay scale
offered to the lecturers in the Junior Selection Grade of the BSES (as
reflected in the notification dated 13.11.1985 and the advertisement No.
1/87).
                                                                              B
       23. Thenoteworthy take awayfrom above is that the appointment
letter is at variance with all other relevant documents, such as the
advertisement; the notification (13.11.1985)creating the posts in BSES;
as well as the Finance Department notifications, offering pay scale
equivalent to the members of the BSES. The appointment letters, despite
suggesting the post to be ofex-cadre category, notably offered the same       C
pay scale attached to Government school lecturers in the BSES Cadre.
The learned counsel for the respondents on this aspectthereforeappears
to be correct in his submission that the reference to ex-cadre in the
appointment letters was only to allay the anxiety of the Assistant Teachers
in the Government Secondary Schools (members of the BSES), who
apprehended loss of their seniority. In such circumstances, the ex-cadre      D
reference in the appointment letters must not,in ourview,eclipse all the
other contemporaneous documents, supporting the contentions of the
respondents.
       24. It is also argued by the State’s counsel that the
recommendations of the Saran Singh Committee cannot be applied qua            E
the respondents, since the posts of +2 lecturers were not in existence in
1977 and were created only in 1985. On this, it is seen that the government
is closemouthed and rather vague on the total posts which existed in
1977; how many posts were created subsequently and the precise number
of posts which existed as on 07.07.2006. Therefore, the State cannot be
allowed to raise such contentions when they have failed to disclose how       F
many posts existed initially and the stages at which, additional posts
were created by the government. Besides, the merger decision
(07.07.2006)pertinently omitted to say that only posts in existence in
1977, were intended to be merged.
       25. Moreover, the Government decision (06.10.2006), through
                                                                              G
which the +2 lecturers were denied the benefit of merger with the BES,
was not founded on the ground that posts of +2 lecturers were not borne
in 1977. The ostensible reason was that the +2 lecturers were never
recognized in the BSES. Such attempt by the government to supplement
reasons,not found in their order,cannot legally be permitted. In situation
of this kind, the ratio in Mohinder Singh Gill Vs. Chief Election             H
1152               SUPREME COURT REPORTS                        [2022] 11 S.C.R.


 A     Commissioner, New Delhi6 is worth remembering where the Courtso
       correctlydeclared that validity of an order by a statutory functionary
       must be judged by the reasons mentioned therein and supplementary
       reasons in the shape of affidavits must be excluded.
              26. Staying with the same point,we may also remind ourselves of
       the telling opinion in Commr. of Police, Bombay Vs. Gordhandas
 B
       Bhanji7 where J. Vivian Bose illuminatingly wrote as under:
              “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
 C            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.”
 D            Taking a cue from above, it must besaid unequivocallythat the
       State must not be allowed to bring in additional explanation to justify
       their actions when those are conspicuous by their absence, in the
       government decision.
              27. The appellants’other contention is that the +2 lecturers have
       no semblance of similarity with the BSES, to enable assimilation into the
 E     BES. Only for this ostensible reason, the +2 lecturers in nationalized and
       Government schools were amalgamated with the teachers of nationalized
       schools, vide notification dated 23.06.2009. On this, what is relevant is
       that no intelligible differentia could be pointed out by the state’s counsel
       to sustain such arbitrary classification between +2 lecturers and the BSES
       secondary level teachers,posted in government schools. Therefore, such
 F
       contention from the appellants’ side, being devoid of any foundation, is
       considered butrejected.
              28. Significantly, as per Advertisement 1/87, the lower pay scale
       of Rs. 850 – 1360/- was offered to the teachers in the Secondary Schools
       in the cadre of BSES as compared tothe pay scale offered to the + 2
 G     lecturers. Furthermore, the academic qualifications specified therein for
       + 2 Lecturers was Post Graduation in 2nd division, whereas for other
       posts, a bare graduate would satisfy the prescribed qualification.As such,
       the exclusion of the respondents from the BSES cadre and consequently

       6
           1978 (1) SCC 405
 H     7
           AIR 1952 SC 16
     STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                              1153
                   [HRISHIKESH ROY, J.]

from BES, despite rendering continuous services in the same government          A
secondary schools as teacher members of the BSES, has led to a
discriminatory situation, wherein, the BSES teachers who are junior (in
terms of education qualifications and pay scale) to the respondents in
Government secondary schools, have got the benefit of higher scale of
pay and also avenues of promotion to key controlling positions in the
education department. This would surely infringe the rights of the +2           B
lecturers, guaranteed under Article 14 and Article 16(1) of the
Constitution.
       29. Instead of rectifying the anomalous situation noticed above,
the Government, in a rather arbitrary fashion and without any application
of mind to the issue, vide notification dated 23.06.2009, surprisingly          C
positioned the +2 lecturers at parwith the teachers of the nationalized
secondary schools.The unacceptable justification given for this is that as
a result of the + 2 lecturers’ placement into the cadre of nationalized
school teachers, the +2 lecturers have been provided the promotional
avenue to academic postsof Head Master, and higher scale has also
been provided for them. However, the +2 lecturers are conspicuously             D
denied the opportunities for promotion to key administrative posts whichis
available to those in the BES Cadre. Such arbitrary action of the
government in favoring the BES officers to enable them to exclusively
occupy the key administrative posts, was noticed and was subjected to
court’s caustic comments in the previous rounds of litigation8. Having
                                                                                E
read those and also taking into account the repeated attempts by the
state to inordinately favour those in the BES cadre, we are constrained
to observe that the state government is not acting bonafide and is persisting
in their iniquitous attempt to deny tothe respondents,what is legitimately
due to them.
       30. The following discriminatory action of the State is necessary        F
to be noticed to indicate their iniquitous conduct. Firstly, the Bihar Non-
Government Secondary Schools (Taken over of Control and
Management) Act, 1981, does not authorize determination of the service
conditions of the +2 lecturers. The 1981 Act was intended to provide for
“taking over” of non-government secondary schools under the state
control, for improvement, better organization and development of                G
Secondary Education in the state of Bihar. The +2 lecturers in
government schools cannot be encadred with teachers of ‘Taken Over
Schools’ since the definition of ‘Teacher’ in the 1981 Act shows ‘Teacher
in the Taken Over Secondary Schools’. Section 9 enables the State
8
    See discussion Supra Note 4                                                 H
1154                SUPREME COURT REPORTS                             [2022] 11 S.C.R.


 A     Government to determine the service conditions of the Headmaster,
       Teacher and non-teaching staff of only the Taken Over Secondary Schools
       (but not of government schools). Neither section 9 nor Section 15 of the
       1981 Act empowers the State Government to amend Rules to expand
       the scope of the Act. As such, the 2009 Rules, introducing the notification
       (23.06.2009), purported to be framed under section 9 read with section
 B     15 of the 1981 Act, are found to be at variance with the provisions and
       the purpose of the 1981 Act. The Notification (23.06.2009) is well beyond
       the ambit of the 1981 Act, and could not therefore have been issued,
       without the necessary amendments to the 1981 Act.
              31. Next, let us test the impugned action of the Government on
 C     the anvil ofthe Doctrine of Legitimate Expectation.The notification
       (23.06.2009) besidesbeing legally untenable,would also deny the
       substantive legitimate expectations, the respondents nurtured,as members
       of the government schools in the BSES cadre. The denial is particularly
       glaring in the absence of promotional avenues for the respondents to the
       controlling/supervisory posts in the administrative wing of the education
 D     department. The respondents, in course of their service as +2 Lecturers,
       would reasonablyexpect to occupy the higher position in the department,
       depending upon their inter-se seniority in the common seniority list, but
       the Government action, restricting movement through artificial sub-
       grouping of +2 Lecturers with teachers of nationalized schools,have
       unreasonably belied their expectation. This would suggest that the
 E     respondents were led up the garden path by the appellants.
              32. To understand the legal consequences arising therefrom, useful
       reference can be made toR. V. Inland Revenue Commissioners, ex
       parte M.F.K. Underwriting Agents Ltd.9 (1989) where Lord Justice
       of Appeal, Thomas Bingham, while invoking fairness as a rationale for
       protecting legitimate expectations,expressed the following :-
 F
              “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
 G            legitimate expectation is rooted in fairness.”
              33. Another facet of denial of legitimate expectations is
       underscored by theCourt of Appeal of England and Walesin the seminal
       case of Coughlan10, where the Court preferred to use abuse of power
       9
           [1990] 1 W.L.R 1545
       10
 H          R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213
      STATE OF BIHAR & ORS. v. SHYAMA NANDAN MISHRA                           1155
                    [HRISHIKESH ROY, J.]

as one of the criteria for testing whether a public body could resile from    A
a prima facie legitimate expectation. 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. In the present case,
the abuse of power is discernible in the State’s disparate decision in        B
encadring the +2 lecturers with the teachers of nationalized schools,
notwithstanding the contrary representation through the 1985 notification
which created the +2 lecturer posts and the 1987 advertisement under
which, the respondents entered service. Such manifest departure from
the projected course smacks of arbitrariness and the government action,       C
to selectively protect the interest of the BES cadre, does not conform to
rules of justice and fair play.
       34. Taking a cue from above, where the substantive legitimate
expectation is not ultra vires the power of the authority and the court is
in a position to protect it, the State cannot be allowed to change course
and belie the legitimate expectation of the respondents. As is well known,    D
Regularity, Predictability, Certainty and Fairness are necessary
concomitants of Government’s action and the Bihar government in our
opinion, failed to keep to their commitment by the impugned decision,
which we find was rightly interdicted by the High Court.
       35. Next thing to consider is the plea of the BES Association as       E
the Intervenor in this proceeding and the submissions made on their
behalf by the learned senior counsel Mr. Vijay Hansaria. On this, the
first observation to be made is that the rights of an intervener are
circumscribed. The BES could have arrayed themselves in the High
Court but decided at their own peril, to keep away. The Writ Petition of
the respondent was pending for about 6 years in the High Court and            F
those in the BES, who are holding key positions in the education
department, could not be oblivious of CWJ Case No. 18793 of 2008 and
other connected matters. As such, within the limited scope available to
them, the intervenors,who were sitting on the fence all along, cannot
now be permitted to plead a new case for the first time before this
Court. Moreover, the Counter Affidavit filed by the State before the          G
High Court,do not persuade us to lean in favour of the members of the
BES Association.
       36. In the earlier rounds, this court in Bihar State Govt. Secondary
School Teachers Assn. Vs. Bihar Education Service Assn.11and also
11
     Supra                                                                    H
1156                SUPREME COURT REPORTS                       [2022] 11 S.C.R.


 A     in the Contempt proceedings flowing therefrom in Bihar State Govt.
       Secondary School Teachers Assn. Vs. Ashok Kumar Sinha12 critically
       noted the vigorous attempts by the BES Association in obstructing the
       integration of the BSES with the BES and the unfair conduct of the
       Bihar government in safeguarding the interests of those in the BES
       cadre.Those previous challenges to the merger decision were rejected
 B     by the Court.As such the BES Association,as the party watching from
       the wings, cannot be permitted to secure now what they failed to achieve
       in the previous litigations.In circumstances like this it needs to be said
       that in an adversarial litigation, the fence sitters cannot be placed at par
       with the front runners.
 C            37. In consequence of the foregoing discussion, our finding isthat
       the +2 lecturers’ posts were created in the BSES Cadre.This was
       represented in the Notification (13.11.1985), and also in the Advertisement
       No. 1/87. The conduct of the Government in providing pay scale parity
       with the BSES teachers in the secondary schools, reinforces such
       conclusion. These relevant and attending circumstances eclipse the
 D     implication of the ex-cadre reference in the appointment letters.What is
       also discernible is that the encadrement through notification dated
       23.06.2009 has frustrated the legitimate expectations of the respondents
       and was undertaken with the unfair aim to block the respondents’
       promotion to key positions, particularly in the administrative wing of the
       Education department.Such unfairness in State’s action cannot be
 E
       countenanced by Court.Resultantly we record our approval with the
       reasoning and conclusions in the impugned judgment in favour of the +2
       lecturers to the effect that they are indeed the members of the Subordinate
       Educational Service and the State Government must treat the +2 lecturers
       appointed pursuant to the Advertisement No. 1/87 as members of the
 F     Subordinate Educational Service and all service benefits as the members
       of the Subordinate Educational Serviceshould therefore be extended to
       them.
              38. Accordingly, no good reasons are seen to interfere with the
       impugned judgment. The appeals stand dismissed without any order on
       costs. However, since the time stipulated by the High Court has expired,
 G     the State is granted 6 months’ time to ensure compliance with High
       Court’s direction in letter and spirit.
       Divya Pandey                                                Appeals dismissed.
       (Assisted by : Roopanshi Virang, LCRA)

       12
 H          Supra