Holding

The doctrine of equal pay for equal work does not apply where the two groups differ in mode of recruitment and the government‑teacher cadre is a dying cadre, so parity of pay cannot be imposed.

Summary

The Supreme Court examined whether the Bihar "Niyojit" teachers, appointed under the 2006 Rules and recruited by Panchayati Raj institutions, were entitled to pay parity with the pre‑2006 Government teachers under the doctrine of equal pay for equal work. The Court held that the two cadres are distinct, the Government‑teacher cadre is a dying or vanishing one, and the mode of recruitment and other factors justify different pay structures. Consequently, the Court set aside the High Court's order granting equal pay, dismissed the writ petitions of the Niyojit teachers, and allowed the State's appeal. The judgment emphasized that policy decisions on recruitment and pay are executive functions and that budgetary considerations, while not a ground to violate fundamental rights, support the State's classification.

Issues considered

Whether Rules 6 and 8 of the 2006 Rules are consistent with Article 14 of the Constitution.
Whether Niyojit teachers are entitled to "equal pay for equal work" with teachers appointed before 2006.
Whether the courts can direct fixation of pay for Niyojit teachers at par with pre‑2006 government teachers.

Legislation cited

Subjects

equal pay for equal workNiyojit teachersgovernment teachersArticle 14Article 21ARight to Educationpay paritydying cadrebudgetary constraintsservice lawrecruitment

Judgment

738 [2019]
SUPREME COURT 7 S.C.R. 738
REPORTS [2019] 7 S.C.R.

A STATE OF BIHAR & ORS.
v.
THE BIHAR SECONDARY TEACHERS STRUGGLE
COMMITTEE, MUNGER & ORS.
B (Civil Appeal No. 4862 of 2019 etc.)
MAY 10, 2019
[ABHAY MANOHAR SAPRE AND UDAY UMESH LALIT. JJ.]
Service Law:
C 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
D
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
E 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
F
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
G 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.
H
738
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 739
COMMITTEE, MUNGER

Allowing the appeals, the Court A
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 B
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 C
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 D
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] E
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 F
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 G
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 H
740 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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
B
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
C 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.
D 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
E 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
F 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.
G 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
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 741
COMMITTEE, MUNGER

State had not faltered on any count. The State was justified in A
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
B
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 C
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 D
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 E
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 F
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 G
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
H
742 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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
B
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
C 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
D
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
E 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
F 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
G 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]
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 743
COMMITTEE, MUNGER

State of Punjab vs. Joginder Singh 1963 Suppl. 2 SCR A
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 B
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 C
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 ; D
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 E
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 F
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. G
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
H
744 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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
B
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
C 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
D
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
E 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
F
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
G 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
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 745
COMMITTEE, MUNGER

1 : [2012] 2 SCR 715 ; Karnataka State Private College A
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
B
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 C
(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
D
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 E
(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
F
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 G
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
H
746 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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
B
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
C 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
D
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.
E 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
F 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
G 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
H 901 – relied on.
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 747
COMMITTEE, MUNGER

Rameshwar Shaw v. District Magistrate, Burdwan AIR A
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 B
[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) C
[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) D
[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)
E
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)
F
[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)
G
[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)
H
748 SUPREME COURT REPORTS [2019] 7 S.C.R.

A [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
B [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
C
(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
D
[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
E
[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

F [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
G [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
H [2017] 7 SCR 905 referred to Para 45
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 749
COMMITTEE, MUNGER

[1981] 1 SCR 97 referred to Para 46 A
(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 B
[2000] 1 SCR 158 referred to Para 49
(1962) 3 SCR 269 referred to Para 51
[2018] 7 SCR 379 referred to Para 52
C
[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
D
[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
E
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 F
[1989] 3 SCR 901 relied on Para 8
[1964] SCR 921 referred to Para 8
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4862
of 2019.
G
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. H
750 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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,
B
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
C 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,
D
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,
E 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.
F
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,
G 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.
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 751
COMMITTEE, MUNGER

The Judgments of the Court were delivered by A
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.
B
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 C
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 D
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 E
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. F
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 G
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
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752 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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
H justice;
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 753
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

(b) The implementation of schemes for economic development A
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 B
(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. C
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 – D
“(a) The Municipalities 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 Municipalities, subject to such
conditions as may be specified therein, with respect to – E
(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; F
(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 G
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:-
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754 SUPREME COURT REPORTS [2019] 7 S.C.R.

A “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:
B “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,
C 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
D 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
E 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,
F 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
G 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.”
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 755
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

“9. In new rules basic changes are being made in salary of the A
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
B
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 C
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.
D
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 E
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 F
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.”
… … … G
“5. Difficulties in previous appointment procedure:- In the
centralized examination test as adopted earlier has following
difficulties in selection and appointment of teachers.

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756 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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
B 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.
C 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.
D 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.”
… … …
E “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
F 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
G 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.”
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 757
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

11. Thereafter, Bihar Panchayat Elementary Teachers A
(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 B
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 C
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). It is required to
open thousands of new elementary schools and employment of D
teachers in large number. It has also become necessary to
handover the responsibility of elementary Education to Panchayat
Raj Institutions considering their important roles in Elementary
Education in the light of 73 rd and 74th amendments of the
constitution. Consequently, to achieve the above goal, this rule is
being made for the employment of teachers in elementary schools.” E

Rules 3 and 4 of said Rules were to the following effect:
“3. Grade of Panchayat Elementary Teacher- There will be two
grades of Panchayat Elementary Teachers:-
(A) Block Teacher (Those teachers including physical Education F
Teachers employed at block level.)
(B) “Panchayat Teachers” (Teachers employed at Panchayat
level).
4. Employment of Panchayat Elementary Teachers-
G
(1) Block Teachers will be employed in Middle schools by
Panchayat samiti and Panchayat teachers will be employed in
primary schools by Gram Panchayat.
(2) Category wise panel at both above mentioned level will be
prepared separately for trained and untrained candidates. At first H
758 SUPREME COURT REPORTS [2019] 7 S.C.R.

A trained teachers will be employed. Thereafter if posts remain
vacant, untrained teachers may be employed. Thereafter if posts
remain vacant, untrained teachers may be employed and
arrangement will be made for imparting two years teachers training
to them.
B (3) In reserved category if higher secondary/intermediate passed
candidates would not be available, secondary examination
(Matriculation) passed candidates may be employed. But it will
be necessary for them to acquire prescribed qualification within
maximum six years.”
C Rule 9 dealt with “process of employment” and stated that the
vacant posts would be advertised within the block/panchayat, whereafter
application forms from interested candidates would be received by Block
Education Extension Officer for Block Teachers and by the Secretary
of Gram Panchayats from Panchayat Teachers. Sub-Rule 7 of Rule 9
dealt with constitution and approval of Committee for preparation of
D panel as under:-
“7. Constitution and Approval of Committee for preparation of
panel:
Panel will be prepared on the basis of application forms obtained
E by the following Committee:
(A) For Block teacher and physical Teacher:-
(i) Pramukh of Panchayat samiti-Chairman
(ii) Executive Officer panchayat Samiti - Member.
F (iii) One member elected by education committee of Panchayat
Samiti. (if parmukhe is male member, the elected member
Executive shall be a female)
(iv) Block Education Extension Officer – Member Secretary
(B) For Panchayat teacher:
G
(i) Mukhiya of Gram Panchayat – Chairman
(ii) One member elected by Education Committee of Gram
Panchayat case Mukhiya is a male, the elected member
will be female -Member.
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 759
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

(iii) The member of Panchayat samiti whose area covers most A
of the area Panchayat – Member
(iv) One teacher from the secondary school either from to the
panchayat nearer to the panchayat nominated by the
D.E.O. – Member.
(v) Secretary Gram Panchayat – Member Secretary. B

But the term of the elected members of both the above
committees will of one year.
Note: - In case of (non-existence) non-constituent of the
Education Committee of panchayat samiti and Gram C
panchayat, one member of panchayat samiti/gram Panchyat
nominated by the Block Education Extension officer, will
be a member of the Committee.
(vi) After preparation, the panel will be published or make
available to the public one-week time will be given for their D
objection/grievances. Resolving the grievances obtained,
panel will be finalised.
(vii) Panel prepared for employment of Block teachers and
panchayat teacher will be approved by panchayat samiti
and Gram panchayat respectively.
E
(viii) Selected members will be employed in their willing schools
through counselling by the above committees in descending
order of the preference mentioned in Anusuchi-II from the
panel prepared on the basis of merit.
(ix) Employment letter will be given to the selected candidate F
(Anusuchi-III)
(x) Their joining will be accepted on the basis of their consent
letter.”
In terms of Rule 12, trained Block Teachers and Panchayat
Teachers as well as untrained Block Teachers and Panchayat Teachers G
were to be employed on fixed pay and the trained Block Teachers and
Panchayat Teachers would be entitled to an increase in their fixed pay
by Rs.500/- every three years, while untrained block teachers and
panchayat teachers would be entitled to increment of Rs.300/- every
H
760 SUPREME COURT REPORTS [2019] 7 S.C.R.

A three years. Under Rule 13 the posts were non-transferable. Under
Rule 20 dealing with Repeal and Savings it was stated that Panchayat
Shiksha Mitras employed under previous circulars, orders, instructions
were deemed to be employed as panchayat teachers under these Rules.
12. On 11.07.2006, two sets of Rules were framed by the State.
B First, dealing with subject of appointment of teachers in Government
Nationalized Secondary Schools in the Urban Areas of the States while
the second set dealt with the subject of appointment of teachers in
Government Nationalized Secondary Schools in Rural areas of the State.
The opening recitals in respect of both the sets of Rules were identical
and were to the following effect:-
C
“The State Government has taken a policy decision for the
expansion and strengthening of the Secondary and Higher
Secondary Schools of the state. At present, it is necessary to fill
up a large number of vacancies of the teachers. Apart from this,
more schools and teachers are also needed. It has been decided
D to organize + 2 level of higher secondary schools under 10 + 2 +
3 pattern in accordance with the National Education Policy, 1986/
1992. As per the 73rd and 74th Amendment of the Constitution,
the Government has decided, to decentralize the appointment of
the teachers of the Secondary and Higher Secondary Schools
E and to entrust the responsibility of the appointment of teachers of
Secondary Schools to the Panchayati Raj Institutions. These rules
are being made to achieve this aim under special planning for the
appointment of teachers in the Secondary Schools.”
A) The First set of Rules were called the Bihar Municipal Body
F Secondary and Higher Secondary Teachers (Employment and Service
Conditions) Rules 2006. Rule 4 dealt with the subject of eligibility for
appointment to the posts of Municipal Secondary Teachers under Part A
while Part B dealt with similar issues as regards Municipal Higher
Secondary Teachers. The procedure for employment was dealt with in
Rule 6, according to which the information of subject-wise vacant posts
G of teachers in Government Nationalized Secondary Schools situated in
Municipal areas would be advertised in that area. Sub-Rule (6) of Rule
6 dealt with Constitution of Committees for preparation of panels in
respect of Municipal Panchayat/Municipal board and for Municipal
Corporations as under:
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 761
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

“Constitution of Committee for the preparation of panel and its A
approval-
On the basis of received applications, the following committee
shall prepare the panel:
(a) Committee for Municipal Panchayat/Municipal Board
B
1. Chairman of Municipal Panchayat President
/Municipal Board
2. One selected Member of Education Member
Committee of Municipal panchayat/
Municipal board (In case of male
president, the selected m ember shall be C
female)
3. Executive Officer of Municipal Member
Panchayat/ Municipal Board
Concerned Sub-divisional Member
4. Officer Secretary
If Scheduled Caste/Scheduled Tribe are not there in the aforesaid D
committee, then the District Welfare Officer shall be the additional
member of the Committee.
But the tenure of the member selected by the Education Committee
of Municipal Panchayat/Municipal Board shall be of 1 year.
Note: - In case of non-constitution of the education committee of E
Municipal Panchayat/Municipal Board, one officer of the district
level shall be nominated by the executive officer of the Municipal
Panchayat/Municipal Board.
(b) Committee for the Municipal Corporation
1. Mayor of Municipal Corporation President F

2. One selected member of Education Member
Committee of Municipal Corporation
( In case of male president, the selected
member shall be female)
3. Executive Officer of Municipal Member G
Corporation
4 Concerned District Education Officer Member

Secretary

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762 SUPREME COURT REPORTS [2019] 7 S.C.R.

A If Scheduled Caste/Scheduled Tribe are not there in the aforesaid
committee, then the District Welfare Officer shall be the additional
member of the Committee.
But the tenure of the member selected by the Education Committee
of Municipal Corporation shall be of 1 year.
B Note: In case of non-constitution of the education committee of
Municipal Corporation an officer of the district level shall be
nominated by the Chief Officer of the Municipal Corporation.”
In terms of Rule 8, Municipal Secondary Teachers, trained and
untrained, would be entitled to fixed salary every month and also increase
C of Rs.600 per month and Rs.500 per month respectively on completion
of 3 years. Similarly, salary of Municipal Higher Secondary Teachers,
trained and untrained, was also a fixed salary with increase of Rs.700
per month and Rs.600 per month for trained and untrained categories on
competition of 3 years. Under Rule 10, the posts of Municipal Secondary
D and Higher Secondary Teachers were normally not transferable, but
after completion of three years, the teachers could avail the facility of
maximum two transfers within the jurisdiction of the Municipal Body.
Rule 16(2) was to the following effect:-
These Rules shall not affect the salary and service conditions of
E the teachers of Government, Nationalised Secondary and Higher
Secondary Schools appointed under the provisions of the previous
Rules.”
B) The Second set of Rules were called the Bihar District Board
Secondary and Higher Secondary Teachers (Employment and Service
F Conditions) Rules, 2006. Rule 4 dealt with the subject of eligibility for
appointment to the posts of District Board Secondary Teachers under
Part-A while Part-B dealt with similar issues as regards District Board
Higher Secondary Teachers. The procedure for employment was dealt
with in Rule 6, according to which the information of subject-wise vacant
posts in Government nationalized secondary schools situated in the
G District Board areas would be advertised in the District. Sub-Rule (6)
of said Rule 6 dealt with constitution of Committees for the preparation
of panels in respect of District Boards as under:-
“vi. Constitution of Committee for the preparation of panel and
its approval-
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 763
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

On the basis of received applications, the following Committee A
shall prepare the panel:
a Chairman of District Board President
b One selected Membe r of Education Member
Com mittee of District Board
(In case of m ale President, the selected B
m ember shall be female)
C Deputy Development Comm issioner Member
d District Education Officer Member
Secretary
If Scheduled Caste/ Scheduled Tribes are not there in the aforesaid
committee, then the District Welfare Officer shall be the additional C
member of the committee.
But the tenure of the member selected by the Education Committee
of District Board shall be of 1 year.
Note:- In case of non-constitution of the education committee of
District Board, one officer of the district level shall be nominated D
by the Deputy Development Commissioner.”
In terms of Rule 8, District Secondary Teachers, trained and
untrained, would be entitled to fixed salary every month and also an
increase of Rs.600/- per month and Rs.500/- per month respectively on
completion of three years. Similarly, the District Board Higher Secondary E
Teachers, trained and untrained, would also be entitled to a fixed salary
with increase of Rs.700/- per month and Rs.600/- per month respectively
for trained and untrained categories on completion of three years. Under
Rule 10, the posts of District Board Secondary and District Board Higher
Secondary Teachers were normally non-transferable, but on completion F
of three years, the teachers could avail the facility of maximum two
transfers within the jurisdiction of the District Board. Rule 16(2) was as
under:-
“These Rules shall not affect the salary and service conditions of
the teachers of Government, Nationalised Secondary and Higher G
Secondary Schools appointed under the provisions of the previous
Rules.”
13. Thus, three sets of Rules came into effect in July, 2006. Bihar
Panchayat Elementary Teachers (Employment and Service Conditions)
H
764 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Rules, 2006 dealing with elementary teachers come into force on
01.07.2006; Bihar Municipal Body Secondary and Higher Education
Teachers (Employment and Service Conditions) Rules, 2006 dealing with
teachers employed in secondary and higher secondary teachers in urban
areas came into effect on 11.7.2006. Bihar District Board Secondary
Higher Secondary Teachers (Employment and Service Conditions) Rules,
B
2006 dealing with secondary and higher secondary teachers in rural
areas also came into effect on 11.7.2006. These three sets of Rules, for
facility, are hereinafter referred to as ‘2006 Rules’ and the teachers
appointed in terms of said Rules, again for facility, are referred to as
‘Niyojit Teachers’, which expression appears in all official circulars and
C resolutions.
After the framing of Rules of 2006, the appointments to the posts
of teachers in urban as well as rural areas in respect of nationalized
schools in the State were made on the basis of said Rules of 2006. The
service conditions and emoluments payable to those teachers were
D governed under the provisions of the respective sets of 2006 Rules as
aforesaid. The emoluments payable to those teachers were, however,
lower than the emoluments paid to all the teachers who were appointed
before said Rules of 2006 had come into force. Thus, there were two
categories of teachers, the first being those teachers who upon
nationalization continued or were appointed in all Government schools
E before 2006 and the second category was all the teachers appointed
under 2006 Rules. The First category i.e. regular Government Teachers
were entitled to a pay-scale and certain emoluments, whereas the Second
category of teachers were appointed by Local Authorities on a fixed
salary.
F It was, however, the policy decision of the State that post 2006
there would not be any fresh regular appointments in the First category
and all regular appointments post 2006 would be only in terms of 2006
Rules i.e. in the Second category. There is, however, an exception under
which certain teachers were appointed under the First category even
G after 2006 which will be dealt with hereafter. Barring such exception,
the policy decision had been that no fresh appointments be made in the
First category and that the First category would be treated as a dying or
vanishing cadre.

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 765
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

14. The RTE Act enacted by the Parliament to provide for free A
and compulsory education to all children in the age bracket of 6 to 14
years, came into force on 01.04.2010.
A. Sections 2 (a), (f) and (n) which define terms ‘appropriate
Government’, ‘elementary education’ and ‘school’ are as under:-
“2. Definitions.- In this Act, unless the context otherwise B
requires, -
(a) “appropriate Government” means –
(i) In relation to a school established, owned or controlled by
the Central Government, or the administrator of the Union C
territory, having no legislature, the Central Government;
(ii) In relation to a school, other than the school referred to in
sub-clause (i), established within the territory of –
(A) A State, the State Government;
D
(B) A Union Territory having legislature, the Government
of that Union territory;
… … …
(f) “elementary education” means the education from first
class to eighth class; E
… … …
(n) “school” means any recognised school imparting
elementary education and includes –
(i) a school established, owned or controlled by the F
appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or
part of its expenses from the appropriate Government or
the local authority;
(iii) a school belonging to specified category; and G
(iv) an unaided school not receiving any kind of aid or grants
to meet its expenses from the appropriate Government or
the local authority;”

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766 SUPREME COURT REPORTS [2019] 7 S.C.R.

A B. Chapter III of the Act deals with “Duties of Appropriate
Government, Local Authority and Parents” and Sections 6 and 7
appearing in this Chapter are as under:-
“6. Duty of appropriate Government and local authority to
establish school. – For carrying out the provisions of this Act,
B the appropriate Government and the local authority shall establish,
within such area or limits of neighbourhood, as may be prescribed,
a school, where it is not so established, within a period of three
years from the commencement of this Act.
7. Sharing of financial and other responsibilities. – (1) The
C Central Government and the State Governments shall have
concurrent responsibility for providing funds for carrying out the
provisions of this Act.
(2) The Central Government shall prepare the estimates of capital
and recurring expenditure for the implementation of the provisions
D of the Act.
(3) The Central Government shall provide to the State
Governments, as grants-in-aid of revenues, such percentage of
expenditure referred to in sub-section (2) as it may determine,
from time to time, in consultation with the State Governments.
E (4) The Central Government may make a request to the President
to make a reference to the Finance Commission under sub-clause
(d) of clause (3) of article 280 to examine the need for additional
resources to be provided to any State Government so that the
said State Government may provide its share of funds for carrying
F out the provisions of the Act.
(5) Notwithstanding anything contained in sub-section (4), the State
Government shall, taking into consideration the sums provided by
the Central Government to a State Government under sub-section
(3), and its other resources, be responsible to provide funds for
implementation of the provisions of the Act.
G
(6) The Central Government shall-
(a) develop a framework of national curriculum with the help
of academic authority specified under Section 29;

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STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 767
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

(b) develop and enforce standards for training of teachers; A
(c) provide technical support and resources to the State
Government for promoting innovations, researches, planning
and capacity building.”
C. Chapter IV deals with “Responsibilities of Schools and
Teachers” and Sections 23 and 25 deal with issues such as qualifications B
and conditions of service of teachers as well as Pupil-Teacher Ratio as
under:
“23. Qualifications for appointment and terms and conditions
of service of teachers. –
C
(1) Any person possessing such minimum qualifications, as laid
down by an academic authority, authorised by the Central
Government, by notification, shall be eligible for appointment as a
teacher.
(2) Where a State does not have adequate institutions offering D
courses or training in teacher education, or teachers possessing
minimum qualifications as laid down under sub-section (1) are not
available in sufficient numbers, the Central Government may, if it
deems necessary, by notification, relax the minimum qualifications
required for appointment as a teacher, for such period, not
exceeding five years, as may be specified in that notification: E
Provided that a teacher who, at the commencement of this Act,
does not possess minimum qualifications as laid down under sub-
section (1), shall acquire such minimum qualifications within a
period of five years.
F
Provided further that every teacher appointed or in position as on
the 31st March, 2015, who does not possess minimum qualifications
as laid down under sub-section (1), shall acquire such minimum
qualifications within a period of four years from the date of
commencement of the Right of Children to Free and Compulsory
Education (Amendment) Act, 2017. G
(3) The salary and allowances payable to, and the terms and
conditions of service of, teacher shall be such as may be
prescribed.
… … …
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768 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 25. Pupil-Teacher Ratio. – (1) Within three years from the date
of commencement of this Act, the appropriate Government and
the local authority shall ensure that the Pupil-Teacher Ratio, as
specified in the Schedule, is maintained in each school.
(2) For the purpose of maintaining the Pupil-Teacher Ratio under
B sub-section (1), no teacher posted in a school shall be made to
serve in any other school or office or deployed for any non-
educational purpose, other than those specified in section 27.”
D. Section 35 empowers the Central Government to issue
directions while Section 38 empowers appropriate Government to make
C rules. In exercise of powers conferred by Section 38 of the RTE Act,
the Central Government made “The Right of Children to Free and
Compulsory Education Rules, 2010” (hereinafter referred to as “2010
Rules”), which came into effect on 8.4.2010. Part VI of 2010 Rules
deals with topic ‘Teachers’ and Rule 20 appearing in said Part VI is as
under:-
D
“20. Salary and allowances and conditions of service of
teachers. – (1) The Central Government or the appropriate
Government or the local authority, as the case may be, shall notify
terms and conditions of service and salary and allowances of
teachers of schools owned and managed by them in order to create
E a professional and permanent cadre of teachers.
(2) In particular and without prejudice to sub-rule (1), the terms
and conditions of service shall take into account the following,
namely:-

F (a) accountability of teachers to the School Management
Committee;
(b) provisions enabling long-term stake of teachers in the teaching
profession.
(3) The scales of pay and allowances, medical facilities, pension,
G gratuity, provident fund, and other prescribed benefits of teachers
shall be at par for similar qualification, work and experience.”
15. In exercise of powers conferred by Section 38 of the RTE
Act, State of Bihar made, The Bihar State Free and Compulsory

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 769
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

Education of Children Rules, 2011. The concept of neighbourhood was A
dealt with in Rule 2(1)(k) and Rule 4 speaking about establishment of a
primary school within 1 km of all habitations was as under:-
“4. (1) the areas or limits of neighbourhood within which a school
has to be established by the State Government shall be as under –
(a) A primary school has to be established within a limit of B
1(one) km. of all habitations, where number of children between
the ages of 6-14 years are at least 40 (forty):
(b) An elementary school has to be established within a
limit of 3 (three) km. of any habitation:
C
(2) wherever required, the State Government shall upgrade a
primary school to elementary school.
(3) In places with difficult terrain, risk of floods, landslides, erosion,
lack of roads and in general, danger for young children in the
approach from their homes to the school, the State Government D
or the local authority may consider to locate the school in such a
manner as to avoid such dangers, by relaxing the limits specified
under sub rule (1) of rule 4.
(4) For children from very small habitations as identified by the
State Government/Local Authority, where no school exists within
E
the area or limits of neighbourhood specified under Sub-Rule (1)
above, the State Government/Local Authority shall make adequate
arrangements, such as free transportation, residential facilities and
other facilities, for providing elementary education.
(5) In areas with high population density, the State Government/
F
local authority may consider establishment of more than one
neighbourhood school, having regard to the number of Children in
the age group of 6-14 years in such areas.
(6) The Local Authority shall identify the neighbourhood school(s)
where children can easily be admitted and made such information
public for each habitation within its jurisdiction. G

(7) In respect of children with disabilities, which prevent them
from accessing the school the State Government/Local Authority
will endeavour to make appropriate and safe transportation

H
770 SUPREME COURT REPORTS [2019] 7 S.C.R.

A arrangements for them to attend school and complete elementary
education.
(8) The State Government/Local Authority shall ensure that access
of children to the School is not hindered by social and cultural
factors.”
B Part 6 of the Rules dealt with “minimum qualifications of teachers
for the purpose of sub section (1) of Section 23 of the Act and Rule 17
was as under:-
“Salary, allowances and conditions of service of teachers
for the purpose of sub-Section (3) of Section 23 of the Act
C
17. (1) The State Government shall notify salary, allowances and
conditions of service for creation of a professional and permanent
cadre of teachers.
(2) Following points shall be taken into consideration without
D prejudice for sub-rule (1) and especially for the determination of
conditions of service:-
(a) The teachers should be accountable to the school
education committee constituted under Section 21 of the Act.
(b) The provision of creation of favourable conditions for
E teachers to stay in teaching profession for long period.”
16. Soon thereafter Bihar Panchayat Elementary Teachers
(Employment and Services Conditions) Rules, 2012 came into force on
03.04.2012. The terms Primary School, Middle School and Elementary
School by defining Rules 2 (i)(ii)(iii) respectively as under:-
F “(i) “Primary school” means the government or government
taken-over schools where at present education is provided upto
class-V level.
(ii) “Middle school” means government/government taken
over schools where at present education is provided upto class
G VIII level.
(iii)”Elementary school” means government/ government
taken over primary and Middle schools.”

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 771
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

Rule 5 prescribed minimum qualifications for employment in A
respect of teachers for classes I to V and classes VI to VIII. Rule 15
dealt with consolidated pay of the teachers as under:-
“15. Service Conditions of Niyojit teachers.-(a)
Consolidated Pay.-(i) the Panchayat elementary teachers will
get the consolidated pay as follows:- B
Trained teachers (basic grade) - 7000/- per month
Untrained teachers (basic grade) - 6000/- per month
Trained teachers (Graduate grade) - 8000/-per month
Untrained teachers (Graduate grade) - 7500/- per month C
Trained teachers (H.M. Middle School) - 14000/- per month
(ii) The instructors will get 4000/- consolidated pay per month.
(iii) If in future, the state government takes a decision to revise
their consolidated pay, they will get the pay accordingly. D
(iv) No other allowances like dearness allowance, house rent
allowance, medical allowances, transport allowance etc. will be
given to the Panchayat elementary teachers and instructors
employed under these rules.”
Sub rule (b) then dealt with pay increase and stated that the E
evaluation (“efficiency test”) of Niyojit Teachers as directed by the
Government according to Employment Rules, 2006 would be undertaken
and based on evaluation, the trained teachers securing 45% in general
category and 40% in reserved category would get an increase of Rs.500
in their consolidated pay while untrained teachers wold get increase of F
Rs.300/- in their fixed pay after three years.
Sub rule (f) dealt with “Promotion” and clause 3 thereafter stated
that the promotion to the post of headmaster in fixed pay of middle
schools would be given from the seniority list of graduate trained teachers
and from the seniority list of teachers having at least 5 years of minimum G
satisfactory service in graduate grade at block level.
Similar provisions for teachers working in urban areas were made
by the Bihar Nagar Elementary Teachers (Employment and Service
Conditions) Rules, 2012.
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772 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 17. Though after the enforcement of 2006 Rules, the regular cadre
of Government Teachers was to be taken as a dying or vanishing cadre
and fresh appointments were to be made only in terms of 2006 Rules on
fixed pay and power appointment was vested with Panchayati Raj
Institutions, there was an exception and some Assistant Teachers in
regular pay scale as Government Teachers in secondary schools came
B
to be appointed in the year 2013 in following circumstances.
Sometime in December 2003, an advertisement was issued by
the State to fill up the posts of Assistant teachers. However, certain
irregularities were found in the preparation of panels during selection
process. Therefore, orders were issued for cancellation of panels. A
C challenge was raised by some candidates and the High Court directed
the State to recalculate the vacancies and to go ahead with the process
of selection. Special Leave Petition No.22882 of 2004 filed in this Court
by the State was withdrawn. Thereafter, the State attempted to fill the
vacancies in terms of 2006 Rules which led to the filing of Contempt
D Petition No.297 of 2007 in this Court. By order dated 9.12.2009, this
Court directed the State Government to fill up 34540 posts of Assistant
teachers as per advertisement published in December 2003 as one time
appointment.
The Bihar Special Primary Teachers Appointment Rules, 2010
E were therefore framed. These Rules were to deal with exceptional
situation which was styled as “One Time Appointment.” Accordingly,
34540 teachers were appointed in 2013 as Government Teachers on
regular pay scales. The developments including the difficulty expressed
by the State in accommodating teachers because of change in policy
were dealt with by this Court in Nand Kishore Ojha v. Anjani Kumar
F Singh1 as under:-
“1. Contempt Petition (C) No. 297 of 2007, filed in SLP (C) No.
22882 of 2004, arose out of an alleged breach of undertaking said
to have been given on 18-1-2006 by the State of Bihar and the
order passed on the basis thereof on 23-1-2006 by this Court in
G State of Bihar v. Nand Kishor Ojha (2014 11 SCC 404) As we
have indicated in our order dated 9-1-2009, a number of writ
petitions had been filed against the State of Bihar, raising issues
relating to recruitment of teachers in primary schools. At one stage,

1
H (2014) 11 SCC 405
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 773
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

it was brought to our notice that on account of changes in the A
policy, trained teachers who were in place at the time when the
undertakings were given, could not be accommodated.
Accordingly, we had passed orders directing that the trained
teachers who at one time were less than the number of vacant
posts, should be given appointment in the vacancies that were
B
available. Subsequently, however, there was some discrepancy
as to the number of vacancies available as against the number of
teachers to be accommodated. Accordingly, we adopted a figure
from an advertisement which had been published for recruitment
of primary school teachers and took the number of available
vacancies to be 34,540. C
2. We had directed that the said vacancies be filled up with the
said number of trained teachers as a one-time measure to give
effect to the undertakings which had been given on 18-1-2006
and 23-1-2006. Accordingly, without issuing a rule of contempt,
we had directed that the said vacancies be filled up from amongst D
the trained teachers who are available in order of seniority.
Subsequently, however, it came to light that the number of
candidates available were much more than the number of
vacancies and there were also serious doubts raised about the
eligibility of some of the candidates and some of the institutions
from which they alleged to have received their training.” E

As a result, 34,540 primary school teachers came to be appointed
in the year 2012-13. These teachers though appointed after 2006 were
not appointed in terms of 2006 Rules but Special Recruitment Rules
called 2013 Rules were formulated.
F
18. An association of teachers called Parivartankari Prarambhik
Shikshak Sangh approached the High Court by filing Civil Writ Jurisdiction
Case No.7089 of 2013 contending that the Panchayat elementary
teachers were entitled, under the principle of “equal pay for equal work”,
to same pay-scales which were being given to the teachers appointed
under the State Government. The matter was contested and the Single G
Judge of the High Court dismissed said Writ Petition by his judgment
and order dated 5.4.2013. It was observed:-

H
774 SUPREME COURT REPORTS [2019] 7 S.C.R.

A “Here is a case where the State as a matter of policy came up
with a scheme of mass employment at grass root level at the
Panchayats to ensure that sufficient teachers are available at the
local level so that children who have no ready access to education
also have such opportunity. In the aforesaid background, as far
as the State exchequer is concerned, the policy/scheme was in
B
accordance with the burden it could bear for such recruitment
under which the members of the petitioner’s society have been
appointed. That being the case, it is entirely at the discretion of
the State Government to decide the service conditions including
pay-scale for persons appointed under the aforesaid Rules. The
C Court would not substitute is own views or force the State to
make payment from the public exchequer as it is the State which
is also accountable for such expenditure and has to justify such
payment.
If the State Government has framed a policy/scheme for evolving
D a way of balancing between the requirement of teachers and the
financial liability together with devolution of power to the
Panchayats, the Court would not interfere and disturb the
equilibrium.”
19. Around this time, several other writ petitions were filed, being
E aggrieved by the differential treatment, where the Niyojit Teachers
appointed under Rules of 2006 were not been given the same pay-scales
and were differentially treated. These petitions highlighted denial of
concept of “equal pay for equal work” and challenged the validity of
relevant provisions of 2006 Rules. The matters were taken up by the
Division Bench of the High Court, the lead matter being CWJC 21199 of
F 2013 filed by the Bihar Secondary Teachers Struggle Committee, Munger.
20. In response, the stand of the State was that there were
differences between two categories of teachers. In supplementary
counter affidavit filed by the Director, Secondary Education, the
difference was projected as under:-
G
“13. That the comparative difference between the aforesaid two
categories of teachers is more apparent from the tabular chart
prepared hereinafter:-

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 775
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

A

B

C

D

E

F

G

H
776 SUPREME COURT REPORTS [2019] 7 S.C.R.

A

B

C

D

E

F

21. During the pendency of these matters, a Resolution was passed
G by the State Government on 11.08.2015, under which the Niyojit Teachers
were granted a pay-scale instead of fixed salary that was contemplated
under 2006 Rules. The Resolution also indicated number of primary
teachers, secondary teachers and higher secondary teachers as well as
librarians that were appointed and the pay-scale that was given to those
teachers. The tabular chart given in the Resolution was as under:-
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 777
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

“2.1 Primary Teacher A
S l. P o st No. of P ay -s cal e G ra d e
N o. V ac an ci es pay
1 2 3 4 5
1. P r im a r y 62031 5200- 5
T e ach e r 20200
( U n tr a i n e d )
2. P r im a r y 245344 5200- 0
T e ach e r
( T r a in e d )
20200 B
3. P r im a r y 14000 5200- 0
T e ach e r 20200
(G ra d u at e
u n tr a in e d )
4. P rim a ry 22739 5200- 2400
T e ach e r 20200
(G ra d u at e
tr a in e d )
T otal 344114 C
T e ach e rs
( in c lu s iv e
of n u m b er
o f te a c h e r s
to be
a p p o i n te d
in f u t u r e a s
a g a i n s t th e
d e c la r e d
v ac a n ci es )
D

2.2 Secondary Teacher/Librarian
S l. Po s t N o. of P ay-scal e G rad e
N o. V ac an ci es p ay
1 2 3 4 5
1. Se co n d ary 4463 5200- 0
T eac h er 20200 E
(U n t r a in e d )
2. Se co n d ary 25038 5200- 2400
T eac h er 20200
(T r a in e d )
3. L ib r a r i a n 1900 5200- 0
20200
4. H i gh e r 3058 5200- 0
Se co n d ary 20200
T eac h er F
(1 0 + 2 )
(u n t r a in e d )
5. H i gh e r 26774 5200- 2800
Se co n d ary 20200
T eac h er
(1 0 + 2 )
(t r a in e d )
T o ta l 61233
T eac h ers G
(i n c l u s iv e
o f n u m b ers
o f te a c h e r s
to be
a p p o in te d
in f u tu r e a s
a g a in s t t h e
d e c la r e d
v a c a n c ie s ) H
778 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Para 2.5 of the Resolution was as under:-
“2.5 The benefit of Dearness Allowances; Medical Allowances;
House Rent Allowances and Annual Increment, as announced
for State Govt. Employee from time to time, will be extended to
Niyojit Trained, Untrained |Primary, Secondary, Higher Secondary
B Teachers and Librarians.”
The Resolution further prescribed the minimum basic pay-scale
for trained primary, secondary and higher secondary teachers as well as
the librarians from 1.7.2015. Additionally, the Resolution stated that
amounts of Rs.2,000/- for trained teachers, Rs.2,400/- for secondary
C trained teachers and librarians and Rs.2,800/- for higher secondary
trained teachers would be payable as Grade Pay. Similarly, in cases of
untrained teachers it was stipulated that with effect from 1.7.2015 there
would be rise of at least 20% in their emoluments and they would also
be entitled to Special Allowance. The Resolution further stated that the
revised emoluments would entail financial impact as under:-
D
Particulars of additional financial impact

Sl. Grade Number of Total Total Total
No. Niyojit emoluments emoluments additional
Teachers payable in being paid financial
who terms of the presently impact
E would pay-scale (figure in
benefit crores)
1 Primary 344114 6693.23 4173.21 2520.04
Teacher
2 Secondary 61233 1259.30 830.85 428.45
Teachers,
F Higher
Secondary
Teachers
and
Librarians
Total 405347 7952.55 5004.06 2948.49

G
22. When the matters were taken up for consideration by the
Division Bench, it was submitted on behalf of the Writ Petitioners that
both categories of teachers i.e. Government Teachers and Niyojit
Teachers were imparting instructions in the same nationalized schools
and yet there was considerable difference in the emoluments paid to
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 779
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

Niyojit Teachers; that both the categories of teachers were discharging A
same responsibility and were teaching the same syllabus and there was
no difference in the performance of their duties and responsibilities; that
the distinction made between these two categories was completely
unreasonable and that on the basis of constitutional principle of “equal
pay for equal work” Niyojit Teachers were entitled to same salary, pay-
B
scales and emoluments as were payable to the Government Teachers in
nationalised schools. Strong reliance was placed on the decision of this
Court in State of Punjab and others vs. Jagjit Singh and others 2 and
particularly on paras 42 and 44 thereof.
While defending the action on part of the State, the learned
Advocate General submitted inter alia that the Writ Petitioners were C
appointed under the provisions of 2006 Rules and as such, they could not
challenge the validity of the Rules under which they were appointed;
that the teachers appointed before 2006 were appointed by the Director
on the recommendations of Vidyalaya Seva Board/Bihar Public Service
Commission/Subordinate Service Selection Board whereas Niyojit D
Teachers were appointed under completely different sets of Rules; that
the teachers appointed prior to 2006 was a dying or a vanishing cadre
and there were no fresh appointments in that category; thus the Niyojit
Teachers could not claim any parity on the basis of “equal pay for equal
work”.
E
At the conclusion of the hearing, written submissions were also
filed on behalf of the State to the following effect:-
“1. That in the instant matter argument proceedings are completed
and order reserved on 09.10.2017, the instant written submission
is being filed with a view to supplement the contentions raised in F
the earlier affidavits in respect of claim raised by the petitioners
in this case.
2. That it is stated that at present 3,19,703 teachers in Elementary
Education and 37,529 teachers in Secondary & Higher Secondary
Education are working under Panchayati Raj institutions and Urban G
Local Bodies and the State Government provides grants-in-aid to
the local bodies for the payment of salary to such teachers and at
present the estimated budgetary expenditure is about Rs.8924.48
Crores per annum.

H
780 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 3. That if the teachers appointed by the local bodies are allowed
salary at par with teachers of dying cadre of State Government,
the estimated budget will come to Rs.18853.96 crores, for which
additional budgetary allocation of Rs.9929.48 crores will be
required.
B 4. That it is relevant to mention here that there are large number
of vacancies of teachers from Elementary level to Higher
Secondary level which are likely to be filled up in due course. As
per available information, 1,71,775 vacant posts of teachers in
Elementary Education and 38000 vacant posts in Secondary/Higher
Secondary Education exist and this way, an additional amount of
C Rs.6144.02 crores would be required to meet salary for payment
of future recruitments.
5. That in view of aforementioned discussions, it would be evident
that an additional budgetary allocation of Rs.16073.50 crores would
be required to meet the expenses likely to be incurred in payment
D of salary to the working teachers as well as teachers likely to be
recruited in near future under local bodies in addition to the present
estimated budgetary expenditure of Rs.8924.84 crores, which
would be apparent from the chart annexed herewith. A photocopy
of composite chart is annexed herewith an is marked as Annexure-
E R in this written submission.
6. That it is relevant to point out here that at present the total
budgetary provision on education by the State Government is
Rs.25251 crores which is about 16% of total budgetary provision
of the State Government and if the prayer of the petitioner of
F these bunch of writ applications would be allowed, the fiscal
condition of the State would get adversely affected and further, it
would also affect all other duties and functions including welfare
programme of the State Government.
7. That in view of the aforementioned facts, the deponent humbly
G submits that while deciding the issue in question, the aforesaid
fact needs to be considered by this Hon’ble Court.
23. All the Writ Petitions were allowed by the High Court by its
judgment and order dated 31.10.2017. During the course of said judgment,
following issues were framed:-
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 781
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

“(i) Whether Rules 6 and 8 of Rules 2006 are consistent with A
Article 14 of the Constitution of India or it is violative of
Article 14 of the Constitution.
(ii) Whether the Niyojit Teachers are entitled to equal pay for
equal work at par with the teachers appointed in the
nationalised school prior to coming into force 2006 Rules B
ornot?
(iii) Whether the writ petitioners are entitled to a direction for
fixation of their pay at par with their counterparts teachers
appointed in the nationalised school prior to framing of 2006
Rules or not?” C
24. It was observed that there was no pleading that the Niyojit
Teachers appointed after 2006 were, in any manner, inferior in qualification
or training and that there was no material to suggest that they were
discharging different duties and responsibilities in the same institution. It
was found that the admitted position was that both categories of teachers D
were discharging similar duties of imparting instructions in same schools
and were having necessary qualifications as were possessed by the
teachers appointed before 2006. The High Court placed reliance on the
decisions of this Court in Jagjit Singh2 and Jaipal and others vs. State
of Haryana and others3 and found that the action on part of the State
in denying the pay-scales to Niyojit Teachers was arbitrary and E
unreasonable. It was concluded as under:-
“58. Thus materials on the record are clinching on the point that
the Niyojit Teachers are regular teachers working in the
nationalised school under the control of the State Government.
The State Government has adopted two different pay-scales one F
for the Niyojit Shikshak and the other for the teachers known as
regular teachers appointed prior to framing of 2006 Rules. Such
discrimination in the pay-scale on the basis of artificial distinction
is unreasonable.”
25. During the course of its discussion, it was also observed as G
under:-
“46. I also find that the poor scale to the Niyojit Shikshak has
adversely affected the academic atmosphere in the state of Bihar.
2
(2017) 1 SCC 148
3
AIR 1988 SC 1504 H
782 SUPREME COURT REPORTS [2019] 7 S.C.R.

A The ill paid teachers without having any promotional prospects
cannot be expected to deliver the best. The settled principle of
personal management is that incentive and prospect boost the
moral of man force in service. The better salary and prospect in
the career is catalyst for the best performance, the teachers in
such schools drawing less than the class 4 employee are not good
B
to the institution and the society. It is a matter to introspect and
the State Government must rise to the situation and undo the
injustice by making payment at par with the other regular teaches
to the Niyojit teachers. It appears that the poor payment to the
teachers appointed under 2006 Rules has adversely affected the
C recruitment of the best and most competent teachers and probably
that is one of reasons that there is mushrooming of coaching
Institutes where the students are more attracted then regular
teaching in the school. The Court cannot ignore the ground reality.”
Finally, the High Court directed, inter alia,
D “(ii) The petitioners are entitled to “equal pay for equal work”
(iii) The respondents are directed to fix their pay-scale like regular
teachers of the nationalised school with effect from the initial
date of appointment notionally and actual payment with effect
from 8.12.2009, the date of filing of CWJC No.17176 of 2009, in
E view of the fact that such grant of relief from the date of filing of
the writ application was approved by the Apex Court in the case
of State of Haryana vs. Charanjit Singh 4 discussed in the
judgment of Jagjit Singh’s2 case (supra) and I have held that
Rule 8 is inoperative, in effective, inapplicable from the date of
F inception as it is arbitrary and unconstitutional and violative of
Article 14 of the Constitution so far as the Niyojit Shikshak are
concerned.
(iv) The respondents are also directed to revise the pay-scale of
the petitioners according to the principles of pay revision under
G recommendation of the 7th Pay Revision to the Niyojit Shikshak
like other regular employees after granting equal pay for equal
work notionally from the date of their appointment and actual
payment with effect from the date of filing of 1st of the batch of
writ petitions, i.e. 8.12.2009.
4
H (2006) 9 SCC 321
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 783
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

(v) Such exercise must be completed within a period of three A
months from today and monetary benefits admissible to the Niyojit
Shikshak must be paid to them within a further period of three
months.”
26. State of Bihar, being aggrieved, has challenged the aforesaid
decision of the High Court in these appeals. On 29.01.2018 this Court B
passed the following order:-
“The question raised in this batch of petitions is whether there
must be parity in the teachers recruited by the local bodies and
teachers recruited by the State Government.
According to the stand of the State Government, the teachers C
recruited by the State Government prior to 2006 are a dieing cadre.
There are about 50,000 teachers in the category of teachers
recruited by the State Government as against approximately
3,50,000 teachers in the category of the teachers recruited by the
local bodies. It is submitted that there is thus, only one permanent D
category i.e. those recruited by local bodies. The salary paid to
the second category is roughly Rs.20,000/- as against the salary
of Rs.56,000/- on an average paid to the teachers recruited by the
State Government as of now.
… … … E
Even though, on principle, there has to be parity in the salary of
the teachers, whether recruited by the State Government or by
the local bodies. If any filters, consistent with the law, are required
to be employed for giving the parity, the same can be done.
However, question is of applicability of such principle where F
category of teachers in first category is declared a dieing cadre.
Secondly, we need to consider whether it is practical to fasten the
State Government with the liability for the arrears. The stand of
the State is that in future there will be only one category i.e.
teachers recruited by the local bodies. Even in such situation,
there has to be rational in the pay package of the teachers recruited G
by the local bodies. In doing so, the amount paid by the Central
Government ought to be utilised by the State Government and the
State government may consider the view-point of the respondents

H
784 SUPREME COURT REPORTS [2019] 7 S.C.R.

A and come out with a proposal which may be reasonable. It may
constitute an Expert Committee of at least 3 officers in the rank
of Chief Secretary. The said Committee will also be free to interact
and consider the view-point of the concerned teachers as well as
any other stakeholders, in case any suggestion is received by it.
Such suggestion may be addressed/given to the Chief Secretary
B
which in turn can be considered by the Expert Committee.
We accordingly adjourn the matter to 15th March, 2018 for
further consideration.
We consider it necessary to request Mr. P.S. Narasimha,
C learned Additional Solicitor General, to assist the Court to place
the view-point of the Central Government before the Court.
Status quo, as on today, be maintained in the meantime.”
27. Accordingly, an Expert Committee consisting of Chief
Secretary-Bihar, Principal Secretary-General Administration Department
D and Principal Secretary-Water Resources Department was constituted.
The Committee set out the background facts as under:-
“… … …The Committee perused the Rules relating to niyojan of
teachers under the Panchayati Raj Institutions as well as Municipal
Bodies which was promulgated in the year 2006 and was amended
E from time to time. In view of provisions under rule-20 of the
Bihar Panchayat Primary Teachers (appointment & Service
conditions) Rules, 2006, the earlier contractual appointees on the
post of Panchayat Shiksha Mitra were adjusted/absorbed as
panchayat/block teachers w.e.f. 01.07.2006. Panchayat Shiksha
F Mitra were appointed on contractual basis for a period of 11 months
on a fixed remuneration of Rs.1500/- per month from the year
2002-03 in the rural areas. The total number of such contractual
appointees was 1,04,114 on 01.07.2006, who were adjusted/
absorbed on the post of panchayat/block teacher and were paid a
fixed pay of Rs.5000/- per month in case they were trained and
G Rs.4000/- per month in case they were untrained.
In the said rules, 2006 it was also provided that after every
three years there shall be an increment of Rs.500/- in case of

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 785
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

trained and Rs.300/- in case of untrained on the basis of their A
evaluation as prescribed.
The Rules, 2006 was amended in the year 2009 wherein provision
for Evaluation Test was made and it was provided that after
qualifying in the said test, the increment in pay shall be granted. It
was further provided that maximum three attempts would be given B
for qualifying in the said test failing which they shall be terminated
by their respective employer. The said evaluation test was only
for the purpose of increment in pay and not for grant of pay-
scale, equivalency or certification, if any.
6. In view of provisions under Article-21A of the Constitution of C
India, the education to the children of age group 6-14 has been
made a fundamental right and in the light of Right of Children to
Free & Compulsory Education Act, 2009 which came into force
w.e.f. 01.04.2010, the National Council for Teachers Education
(NCTE) has been notified as the academic authority by the Central
Govt. The NCTE has fixed the minimum eligibility criteria for D
appointment on the post of primary teachers and in that background,
Bihar Panchayat Primary Teachers (appointment & Service
conditions) Rules, 2012 has been framed wherein the minimum
eligibility criteria for appointment has been fixed that a candidate
should be qualified in Teachers Eligibility Test conducted by the E
Central or State Govt. Thus, the Teachers Eligibility Test is merely
an eligibility to make an application for his/her selection. In other
words, no person can be appointed on the post of a teacher unless
he successfully passes through the requisite selection process.
7. Similarly, rules for selection on the post of teacher in Secondary F
& Higher Secondary Schools were also promulgated. Selection/
appointment in the primary & secondary segment was made after
2006 by the Gram Panchayat & Municipal bodies and no provision
for any examination/test was made in the said selection process.
8. For appointment on the post of primary teacher, prior to 2006 G
Rules, rules were also framed in 2003 wherein it was provided
that recommendation shall be made for such appointment after
conducting preliminary & mains examination by the Staff Selection
Commission, Bihar.

H
786 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 9. Similarly, for appointment on the post of Secondary Teacher,
prior to 2006 Rules, rules were also framed in 2004 wherein it
was also provided that recommendation shall be made for such
appointment after conducting preliminary & mains examination
by the Staff Selection Commission, Bihar.”
B It, thereafter, considered the current situation after the Resolution
dated 11.8.2015 and implementation of the recommendations of 7th Pay
Commission. The Committee went on to observe:-
“18. It may be noted that in the elementary schools there are
about 3,19,703 niyojit teachers whereas; in the secondary/higher
C secondary schools there are about 38,715 niyojit teachers (including
librarians). Out of those teachers working in the elementary
schools, 2,65,000 teachers are covered under the Sarv Shiksha
Abhiyan. For payment of salary to the teachers covered under
the Sarv Shiksha Abhiyan, the percentage of share of Central
Government and State Government is 60% and 40% respectively.
D
… … …
22. … … 1. It is financially impractical to act upon suggestions
received for implementation of order of the Hon’ble High Court
dated 31.10.2017 relating to grant of pay scale to the niyojit
E teachers notionally from the date of their initial joining and actual
benefits from 08.12.2009 at par with that of Assistant Teachers
appointed by the State Government, for the reasons that if the
said order is implemented, the State Government would be liable
to pay an amount of about Rs.52000/- crores in terms of arrears
to such teachers, which would not be possible from the financial
F resources of the State Government.”
The Committee, then, suggested:-
“Taking into account the financial resources of the State
Government and procedure adopted for niyojan of such teachers,
upgraded pay structure can be granted to such niyojit teachers
G
(including teachers who have qualified in the Teachers Eligibility
Test) after going through a filtration process. The basis of filtration
process should be a special examination conducted for the said
purpose. Two separate chances shall be given for appearing in
the special examination.”
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 787
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

It was further suggested that upgraded pay structure could be A
granted to such Niyojit Teachers who succeeded in special examination
conducted for said purpose and thus, teachers who pass such special
examination be covered under the upgraded pay structure with an
increment of 20% in their pay.
28. An affidavit in reply was, thereafter, filed on behalf of the B
Ministry of Human Resource Development, Union of India. It was
stated that Sarva Shiksha Abhiyhan (SSA) and Rastriya Madhyamik
Shiksha Abhiyan (RMSA) were operational from the financial years
2000-2001 and 2009-2010 respectively till 2017-2018 and that both the
programmes were Centrally Sponsored Schemes under which funding
was shared between Central and State Governments. These programmes C
were conceived to achieve Universal Elementary Education. It was
then stated:-
“23. To summarise, it is submitted that the Sarva Shiksha Abhiyan
(SSA), the erstwhile Centrally Sponsored Scheme was being
implemented since 2001-02 in partnership with the State D
Governments and Union Territory Administrations for
universalising elementary education across the country. Its overall
goals included universal access and retention, bridging of gender
and social category gaps in education and enhancement of learning
levels of children. Subsequent to the enactment of the RTE Act, E
2009 by Parliament, the SSA norms were revised to harmonise
with RTE provisions. Funds under SSA are provided for more
than 40 interventions such as opening of new schools, residential
school facilities, additional class rooms, provisioning for teachers,
periodic teacher training etc. The SSA Framework also provides
support for additional teachers to maintain Pupil Teacher Ratio F
(PTR) in schools and teachers for new elementary schools opened
under SSA programme. Part of the funds required for such
positions approved and filled-up under the SSA programme were
met by the Central and State Governments. Since the recruitment
and other service matters of these teachers are under the G
domain of State Govts. and UTs, the salary and pay fixation
for these teachers was done by the respective States and UTs.
24. That the Chapter-III point 21 of the Financial Management
and Procurement (FMP) Manual under the heading “Appointment
H
788 SUPREME COURT REPORTS [2019] 7 S.C.R.

A of teachers” provided that SSA would be an addition to States
and UTs and the States and UTs would have their own norms for
recruitment of teachers and payments of salary to new recruits.
The States will be free to follow their own norms as long as these
are consistent with the norms prescribed by NCTE and Assistance
will not be available for filling up existing vacancies that have
B
arisen on account of attrition. A true typed copy of the
FMP Manual of SSA is attached and marked herewith as
ANNEXURE-8.
New Scheme – Samagra Shiksha
C 25. The Sarva Shiksha Abhiyan (SSA), Rashtriya Madhyamiik
Shiksha Abhiyan (RMSA) and Centrally Sponsored Scheme on
Teacher Education (CSSTE) were the three major flagship school
education development programmes of the Ministry of Human
Resource Development (MHRD), Government of India being
implemented in partnership with State/UTs since 2000-01, 2009-
D 10 and 1987 respectively. While the SSA covered the elementary
level (grades I-VIII), the RMSA covered grades IX-X, whereas
CSSTE aims to provide infrastructural and institutional support to
Government Teacher Education Institutions (TEIs) to enhance
the quality of teachers. The approval of these schemes was upto
E the end of 12th five year plan in 2016-17. These were extended
for a period of one year i.e. 2017-18, pending their Evaluation and
further approval. Although, the Central Sponsored Schemes of
SSA, RMSA and TE have significantly contributed towards the
government’s efforts to provide access to education in the country,
their scope and coverage remained segmented and did not provide
F for any intervention for the pre-school level and only very limited
support for senior secondary levels. Also, there was a need to
focus on the improvement of quality of education and learning out
comes of students. Further, independent evaluations of the
Schemes instituted at the end of the 12th five year plan, had also
G suggested increased convergence and integration between the
Schemes through a single school education development
programme covering grades I-X/XII. Therefore, it has been
decided to formulate a single scheme for School Education by

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 789
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

merging the different school education development schemes and A
programmes like the SSA, RMSA and CSSTE into an overarching
programme with the broader goal of improving school effectiveness
measured in terms of equal opportunities for schooling and equitable
learning outcomes. The draft guidelines for the new scheme were
circulated among the States and UTs for their comments vide
B
letter No.2-16/2017-EE.3 dated 22nd January, 2018 and also
discussed in the National Workshop of all States and UTs held on
30th January 2018. The new scheme – ‘Samagra Shiksha’ – has
been approved by the Cabinet on 28th March, 2018 and it came
into the effect from 1st April, 2018.
26. The vision of the scheme is to ensure inclusive and equitable C
quality education from pre-school to senior secondary stage in
accordance with the sustainable Development Goal (SDG) for
Education. The major objectives of the scheme are provision of
quality education and enhancing learning outcomes of students;
Bridging Social and Gender Gaps in School Education; Ensuring D
equity and inclusion at all levels of school education; Ensuring
minimum standards in schooling provisions; Promoting
Vocationalisation of Education; Support States in implementation
of Right of Children to Free and Compulsory Education (RTE)
Act, 2009; and Strengthening and Upgradation of State Councils
of Educational Research and Training (SCERTs/State Institutes E
of Education (SIEs) and District Institutes of Education and
Training (DIETs) as nodal agencies for teacher training.
27. The Samagra Shiksha envisages the ‘school’ as a continuum
from pre-school, primary, upper primary, secondary to senior
secondary levels. This will smoothen the transition across the F
various levels of school education and aid in promoting universal
access to children to complete school education. The major
interventions across all levels of school education, under the
scheme are: (i) Universal access including infrastructure
development and retention; (ii) Gender and Equity; (iii) Inclusive G
Education; (iv) Enhancement of Quality; (v) Financial Support
for Teachers Salary; (vi) Digital Initiatives; (vii) RTE entitlements
including uniforms, text books, etc; (viii) Pre-school Education;
(ix) Vocational Education; (x) Sports and Physical Education; (xi)

H
790 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Strengthening of Teacher Education and Training; (xii) Monitoring;
and (xiii) Programme Management.
28. The Budget for all the three schemes is being merged into a
single Budget provision. This will be the Central share to be
provided to the States and UTs with the existing fund sharing
B pattern of 60:40 for all the States, with the exception that the
pattern will be 90:10 for North-Eastern and three Himalayan States
and 100% for Union Territories without Legislature.
29. In order to focus on improvement of educational indicators
and quality of education, part of the funds will be allocated amongst
C the States and UTs based on an index of requirements/
performance. The use of funds would be governed by approved
interventions within the ceilings decided by the empowered
committee of the department i.e., the Project Approval Board
headed by Secretary, Department of School Education & Literacy.
A single Utilisation Certificate would be required from the State
D streamlining the merged Schemes. Further, it was noticed that in
the erstwhile schemes of SSA and RMSA, the support for teacher
salary was as per the State notified salary structures which showed
a wide variation. Therefore, to maintain uniformity in central
support for teacher salary for all States/Uts and provide funds for
E quality enhancement, the ceiling limits for support for teacher
salaries have been laid down under the integrated scheme. Thus,
while the teachers will continue to be governed by the Terms and
Conditions of the respective States/Uts, the support under the
Integrated Scheme would be the same across all States and Uts
in the Country. The focus of the scheme is to support States in
F taking initiatives to improve the learning outcomes, strengthen
teacher training institutions, enhanced capacity building of teachers
and use of digital technology for effective outcomes. The norms
for salary of teachers has been attached and marked herewith as
ANNEXURE-9.”
G 29. The affidavit then gave details of the funds allocated to the
States/UTs under the SSA from the year 2014-15 to 2017-18 in a
tabular chart as under:-

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 791
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

Status of Fou r year C en tral Releases und er S SA A
S. 2014-15 2015-16 2016-17 2017-18
N o. BE 28258 22000 22500 c rore 23500
crore crore cr ore
RE 24380 22015.10 22500 c rore 23593.86
C rore crore cr ore
(Rs. In l akh )
State C entral C entr al Central C entral B
R eleases R eleases Releases R ele ase s
1 Andam an & 147.21 359.46 479.14 1945.53
Ni cobar
2 Andhra 154566.67 66810.81 63302.18 70431.00
Pra de sh
3 Arunac hal 33607.82 18179.44 19956.64 23022.07
Pra de sh
4 Assam 97782.19 100464.64 87652.30 123584.00 C
5 Bihar 216336.05 251557.32 270688.45 255797.00
6 Chandigarh 3893.53 3521.81 3333.56 9265.50
7 Chhattisgarh 92705.30 62219.70 59262.77 67412.85
8 Dada r & 911.74 594.91 1068.37 5476.54
Na ga r Haveli
9 Dam an & 72.77 78.38 300.00 1038.57
Di u D
10 Delhi 6223.74 7293.80 8306.20 10976.90
11 Goa 1310.39 813.58 869.11 862.60
12 Gujarat 78476.49 61563.84 77740.52 65046.00
13 Har ya na 42110.65 34501.21 32000.88 36355.00
14 HP 12547.30 12139.13 12825.46 30874.00
15 J& K 51276.52 129980.54 107250.05 153797.98
16 Jharkhand 75775.18 55863.31 50945.73 58984.54 E
17 Karna taka 66213.52 41759.34 54495.51 54882.00
18 Kera la 21844.02 12858.86 11316.74 13680.00
19 Lakshadw eep 58.83 139.55 239.87 406.52
20 Ma dh ya 149094.92 160197.86 154455.08 173814.00
Pra de sh
21 Ma ha rashtra 58288.54 41225.28 60369.65 64232.00
22 Manipur 21465.81 18355.46 4405.31 18377.00
23 Megha la ya 20404.52 16627.04 20067.01 33579.51 F
24 Mizoram 14739.70 9437.51 10934.31 12000.34
25 Na ga land 20568.74 8739.53 10725.35 11717.00
26 Puduc he rry 100.00 583.14 304.68 622.73
27 Punj ab 36215.98 30003.22 30002.69 31665.00
28 Rajastha n 248041.55 193462.08 182578.48 198973.00
29 Sikkim 4526.78 4054.36 3479.24 5684.35
30 Telangana 81406.78 21776.01 41776.09 44244.72 G
31 Tamil N adu 135819.79 82111.73 82111.30 86644.00
32 Tripura 19800.14 16956.75 19190.95 20220.38
33 UP 449867.53 505434.32 505433.98 424980.68
34 Ut tarakha nd 22880.57 22588.40 25268.98 62499.00
35 West Benga l 97240.30 84679.41 82185.33 89657.00
Ce ntral Releases 2403016.41 2159013.36 2165744.89 2349361.32
T otal H
792 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 30. The affidavit then considered the financial implications if the
directions issued by the High Court in the present case were to be
implemented in all States/UTs. It was stated:-
“31. That consequent to the interim order of this Hon’ble Court
dated 27th March, 2018 in the present Petition, the Department of
B School Education & Literacy, Ministry of Human Resource
Development, Government of India has attempted to estimate the
financial implication of the impugned judgment across the States.
The department has collected information from all 36 States and
UTs regarding number of teachers sanctioned under the erstwhile
schemes of Sarva Shiksha Abhiyan (SSA), Rashtriya Madhyamik
C Shiksha Abhiyan (RMSA) and number of teachers available under
the State cadres at elementary and secondary level. The
information was collected disaggregated for Permanent Teachers,
Contractual Teachers and Teachers appointed by Local Bodies
under SSA, RMSA and State Cadre. Information on average
D monthly salary for each category of teachers was also collected.
32. That the Financial implication of the impugned judgment has
been estimated based on the number of teachers reported by States
for the year 2017-18 under the above mentioned three categories
and their average monthly salary. In case the Local Body
E appointed teachers/Contractual Teachers are given salary at par
with the regular teachers of State cadre, it is estimated that
financial implication will be a minimum of Rs.Thirty Six Thousand
Nine Hundred Ninety Eight Crores (Rs.36998 crores) per year.
This estimation does not include perks and other benefits which
are applicable as per the extant rules of the respective States/
F UTs, which will further add to the cost. A true typed copy of the
Estimation sheet is annexed and marked herewith as
ANNEXURE-11"
Annexure 11 to the affidavit was as under:-

G S. State Tentative requirement of
No. additional Salary funding
1 Andaman & Nicobar 4.87
2 Andhra Pradesh 57.82
3 Arunachal Pradesh 183.16
H 4 Assam 316.94
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 793
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

5 Bihar 10460.70 A
6 Chandigarh 17.83
7 Chhattisgarh 5867.79
8 D & N Haveli 19.76
9 Daman & Diu 4.75
10 Delhi 56.66 B
11 Goa 7.82
12 Gujarat .78
13 Haryana 267.77
14 HP 463.56
15 Jammu & Kashmir 117.83 C
16 Jharkhand 3861.98
17 Karnataka 0
18 Kerala 31.54
19 Lakshadweep 2.34
20 Madhya Pradesh 2971.13 D
21 Maharashtra 157.49
22 Manipur NA
23 Meghalaya 288.09
24 Mizoram 102.64
25 Nagaland 90.03 E
26 Odisha 429.19
27 Puducherry .98
28 Punjab 147.04
29 Rajasthan 0
30 Sikkim 131.68 F
31 Tamil Nadu 0
32 Telangana 0
33 Tripura 103.31
34 Uttar Pradesh 8448.78
35 Uttarakhand 67.74
G
36 West Bengal 2316
Total Fund required 36998.00

31. When the matters were taken up for hearing, the submissions
for the State Government were made by Shri Dinesh Dwivedi, Shri
Rakesh Dwivedi and Shri Shyam Divan, learned Senior Advocates. H
794 SUPREME COURT REPORTS [2019] 7 S.C.R.

A A) Shri Dinesh Dwivedi, learned Senior Advocate submitted that
the teachers appointed before 2006 and the Niyojit Teachers appointed
in terms of 2006 Rules stood on a different footing and the distinction
made by the State Government on that basis was quite natural and
rational. It was the decision of the State Government not to make any
further appointments in the category of State Government Teachers and
B
as such, those appointed before 2006 were part of a dying or vanishing
cadre. The reliance on pay-scales of such dying or vanishing cadre and
to apply them to more than four lakh teachers appointed in terms of
2006 Rules would not only be an incorrect and imperfect idea but would
also entail tremendous economic burden on the State. In such matters,
C the economic capacity has always been considered by this Court to be a
relevant circumstance. In his submission, the distinction between those
appointed prior to 2006 forming a dying cadre and those appointed in
terms of 2006 Rules, who were appointed at local or block levels, was a
valid classification. He relied upon judgments of this Court in i) Tarsem
Lal Gautam and anotherr. vs.State Bank of Patiala and others 5 ,
D
ii) V. Markendeya and others vs. State of Andhra Pradesh and
others.6, iii) Dharwad Distt. P.W.D. Literate Daily Wage Employees
Association and others vs.State of Karnataka and others 7 ,
iv) Secretary, Finance Department and others vs. West Bengal
Registration Service Association and others8, v) State of U.P. and
E others vs. Ministerial Karamchari Sangh9, vi) State of Haryana
and another vs. Haryana Civil Secretariat Personal Staff
Association 10 and vii) S.C. Chandra and others vs. State of
Jharkhand and others 11.
B) Shri Rakesh Dwivedi, learned Senior Advocate submitted that
F with the insertion of Article 21A in the Constitution and Right to Free
and Compulsory Education of Children being a Fundamental Right, the
State was required to spread educational opportunities and establish
schools in remotest areas. The State had never been averse to granting
pay-scales which could be more remunerative but initially the emphasis
had to be on spread of education within the constraints of its resources.
G 5
(1989) 1 SCC 182
6
(1989) 3 SCC 191
7
(1990) 2 SCC 396
8
1993 Supp (1) SCC 153
9
(1998) 1 SCC 422
10
(2002) 6 SCC 72
H 11
(2007) 8 SCC 279
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 795
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

He submitted that as a part of the Constitutional obligation of providing A
free and compulsory education, the State has set up 21261 new primary
schools, upgraded 19617 primary schools to middle school level and also
upgraded 3129 middle schools to secondary or senior secondary level
and that the State has presently been spending 20% of its budget on
education. Since the first and foremost objective was to achieve spread
B
of education, with the passage of time, the State has consciously been
improving the emoluments which were initially granted to Niyojit Teachers.
He further submitted that in terms of provisions of the Act it is the
responsibility of the State to spread education in every neighbourhood
and in every nook and corner of the State. He submitted that the policy
of roll out of universalisation and spread of education was carefully C
crafted keeping in mind the capacity of the State. First task having been
achieved, the State is now gearing up for improving the quality of
education and in that pursuit the State would certainly make the service
conditions more remunerative to attract better talent and render its
constitutional obligation with greater emphasis, but to compare the present
D
scales with that of a dying or vanishing cadre was completely unjustified.
He relied upon decisions of this Court in i) Official Liquidator vs.
Dayanand and others12, ii) State of Punjab and another vs. Surjit
Singh and others13, iii) Steel Authority of India Limited and others
vs. Dibyendu Bhattacharya 14, iv) Gopal Chawala and others vs.
State of Madhya Pradesh and others15 and v) M.M.L. Aurora and E
others vs. Union of India and others16.
Shri Rakesh Dwivedi, learned Senior Advocate also gave a Note,
the relevant part of which was as under:-
“After change of government in Bihar in November 2005, it was
found that 12% (23,15,362) children between the ages of 6-14 F
years were out of school. Due to the pro-active stance of the
State of Bihar and implementation of the Right to Education Act
and the mandate of 73rd and 74th Amendments read with 11th and
12th Schedule, thisstands reduced to less than 1% (2,01,806)
children today. G

12
(2008) 10 SCC 1
13
(2009) 9 SCC 514
14
(2011) 11 SCC 122
15
(2014) 13 SCC 792
16
1995 Supp (1) SCC 279 H
796 SUPREME COURT REPORTS [2019] 7 S.C.R.

A In order to rectify this and extend the reach of education (both
rural and urban) within its meagre resources, State of Bihar took
a policy decision and resolved to recruit new teachers through its
Panchayati Raj Institutions. New Rules were enacted and all
recruitments to the post of teachers at all levels of school education
were made through this mode only. Old method of recruitment
B
was abolished and the cadre of existing Assistant Teachers became
a Dying Cadre, as per chart below:
School Regular Regular Teachers (at present)
Teachers
in 2006
C Elementary 1,04,259 57293
By its order dated 13.10.2011 in
a Contempt Petition, Bihar was
compelled to appoint 34,540
Assistant Teachers on the basis
of a merit list prepared by this
D Hon’ble Court (reported as 2014
(11) SCC 405.
32,327 were appointed and
dispute was raised in respect of
2213. 6170 out of them have
retired and 26157 still remain in
E service.
(31136+26157 = 57293)
Secondary 18458 7800

After Right to Education Act, 2009, Union Govt. declared Sarva
Shiksha Abhiyan as the main instrument to implement the
F provisions of the Right of Children to Free & Compulsory Education
Act, 2009 and consequently, the same was renamed as SSA-RTE.
Niyojit Teachers (respondents) are governed by new Rules framed
under the 73rd and 74th Constitution Amendment. RTE provides
for sharing of resources between Centre and States for
implementation of the Act.
G
Population of the State of Bihar is 10.41 crores. After 2005, it
has opened 21261 new Primary Schools and Upgraded 19617
Primary Schools to Middle School under Sarva Shiksha Abhiyan.
3129 Middle Schools were upgraded to Secondary or Senior
Secondary School, which on date is as follows:
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 797
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

Primary Schools 42614 A
Middle Schools 29149
Secondary/Senior Secondary 5615
Impugned judgment has treated the matter as a simple service
dispute. It has failed to appreciate the larger objective sought to B
be achieved, financial capacity of the State, financial impact on
the Union of India and the State of Bihar, balancing competing
interests of the regular and niyojit teachers, its financial ramification
for other States in the implementation of Right to Education Act
and Sarva Shiksha Abhiyan, its implication for all the other
employees either working on contract or under different Schemes C
of the Center or the State and such like social objectives.”
C) Shri Shyam Divan, learned Senior Advocate submitted that
the concept of “equal pay for equal work” was alien to this case and the
case involved complex policy issues. He submitted that the matter must
be considered from the standpoint of the approach adopted by the State D
Government and all the constitutional options that were open to the State.
On one hand it was the goal set out under Article 21A which was sought
to be effectuated by the spread the education and on the other hand, the
idea was devolution of powers to Panchayats in terms of Parts IX and
IXA of the Constitution. The peculiar situation in Bihar was that at least E
12% of the children were not being educated at all. This was essentially
because of inadequate number of schools and inadequate number of
teachers. This was sought to be remedied by appointment of one lakh
Shiksha Mitras initially to cater to rural areas. The challenge to bring
those 12% children who were outside the schools into the stream of
education itself required tremendous efforts and consequent constraints F
on budgetary allocations. It is in this background that the attempts on
the part of the State must be seen. The State not only absorbed those
Shiksha Mitras but also recruited more than 3.50 lakh Niyojit Teachers.
It was his submission that the attempts and advances so made by the
State could neither be called exploitative nor was dignity of any individual G
teacher compromised in any manner. The developments since 2006 are
indicative that the State has substantially been improving the pay-scales
and emoluments available to the Niyojit Teachers. He further submitted
that the changes in Education System brought about in the State of Bihar
post 2006 and the substantial spread in education had also improved
H
798 SUPREME COURT REPORTS [2019] 7 S.C.R.

A enrolment of girl students and helped achieve reduction in Total Fertility
Rate. He submitted a Note as under:-
“1. Improvement in Girls Enrolment & Education
The enrolments of girls increased significantly from 57.75 Lac
(43.47% of total enrolment) in 2005-06 to 101.37 Lac (50.69% of
B total enrolment) in 2016-17 in elementary classes (1-VIII) of
Government schools. Similarly, enrolments of girls considerably
increase from 4.24 Lac in 2006-07 to 14.41 Lac in 2016-17 in
secondary classes (IX-X) of government schools. The details
are as under:-
C Elementary Classes (I to VIII)
Year Total Girls Enrolment % Increase
Enrolment
2005-06 13282932 5775325 43.47%
2016-17 19995608 10137266 50.69%
Secondary Classes (IX-X)
D 2006-07 1158904 424790 36.65%
2016-17 2865460 1441176 50.29%

The result of 10th and 12th Board also support the arguments and
the status of passed out girls from 2006 to 2017 of 10th and 12th
Board is as follows:-
E
th th
Year 10 board 12 board
Total Girls % Total Girls % App.
Appeared Appeared App. Appeared App.
Student Student
2005 560376 186613 33.30% 314802 99238 31.52%
F 2006 599104 207705 34.67% 339604 110579 32.56%
2007 688508 255463 37.10% 460609 170117 36.93%
2008 769244 294514 38.29% 508332 194456 38.25%
2009 901965 362506 40.19% 583209 234116 40.14%
2010 974393 403226 41.38% 607718 246830 40.62%
2011 931332 399328 42.88% 702069 283384 40.36%
G
2012 1262026 565228 44.79% 812315 328391 40.43%
2013 1364023 604247 44.30% 820590 323514 39.42%
2014 1338268 610388 45.61% 996954 414533 41.58%
2015 1424423 653307 45.86% 1219315 480491 39.41%
2016 1577840 725169 45.96% 1152826 484110 41.99%
H 2017 1763471 866283 49.12% 1257342 556084 44.23%
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 799
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

2. Reduction in Total Fertility Rate (TFR) A
As per Sample Registration System (Registrar General of India),
the Total Fertility Rate (TFR) of Bihar has been reduced significantly
from 4.3 in 2005 to 3.3 in 2016. This is directly related to educational
standard of girls, who are potential mother. This can be seen from
B
the report of sample Registration System (SRS) for the year 2016
for the State of Bihar (copy enclosed as Annexure A) and report
of NITI Aayog (copy enclosed as Annexure-B) which is as follows:

Education Level Total Fertility Rate (TFR)
C
Illiterate 4.2
Without formal education 3.9
Below Primary 3.9
Primary 3.3
Middle 3.0
D
Class-X 2.7
Class-XII 2.2
Graduate & above 2.1
State Average 3.3
National Average 2.3
E

Source: - Sample Registration System (SRS) published Annually
(Registrar General of India)
3. Breakup of Out of School Children (6-14 years)
F

Out of School Children (6-14 years)
Year Total Girls SC
2005-06 2315362 1128110 588491
2017-18 201806 94974 55297 G

Following chart was also placed on record indicating Literacy
Rate in State of Bihar in last seven decades:-

H
800 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Year Total Male Female
India Bihar India Bihar India Bihar
1951 18.33 13.49 27.16 22.68 8.66 4.22
1961 28.30 21.95 40.40 35.85 15.35 8.11
1971 34.45 23.17 46.96 35.86 21.97 9.86
1981 43.57 32.32 56.38 47.11 29.76 16.61
B 1991 52.21 37.49 64.13 51.37 39.29 21.99
2001 64.83 47.53 75.26 60.32 53.70 33.57
2011 73.04 61.80 80.14 71.20 64.60 51.50

It is evident from above table that the decadal growth in female
literacy in Bihar between 2001 and 2011 was 18%, which was
C highest in India. For this State Literacy Mission Authority (Govt.
of India) gave award to the Principal Secretary, Department of
Education, Govt. of Bihar in 2012.”
Shri Divan relied upon decisions of this Court in Bidi Supply
Company vs.The Union of India and others 17, The State of Gujarat
D and another vs. Shri Ambica Mills Limited, Ahmedabad and
another18, The Superintendent and Remembrancer of Legal Affairs,
West Bengal vs. Girish Kumar Navalakha and others19, H.H. Shri
Swamiji of Shri Amar Mutt and others vs. Commissioner, Hindu
Religious and Charitable Endowments Department and others 20,
E Col. A.S. Iyer and others vs. V. Balasubramanyam and others 21,
Javed Niaz Beg and another vs. Union of India and another 22,
Malpe Vishwanath Acharya and others vs. State of Maharashtra
and another23, Javed and others vs. State of Haryana and others24,
State of Maharashtra and others vs. Jalgaon Municipal Council
and others 25 , Sooraram Pratap Reddy and others vs. District
F Collector, Ranga Reddy District and others26 and Shivashakti Sugars
Limited vs. Shree Renuka Sugar Limited and others27.
17
1956 SCR 267
18
(1974) 4 SCC 656
19
(1975) 4 SCC 754
20
(1979) 4 SCC 642
G 21
(1980) 1 SCC 634
22
1980 Supp SCC 155
23
(1998) 2 SCC 1
24
(2003) 8 SCC 369
25
(2003) 9 SCC 731
26
(2008) 9 SCC 552
27
H (2017) 7 SCC 729
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 801
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

32. Responding to the observations of the High Court in the A
Judgment under appeal and queries raised by this Court during the course
of hearing whether the emoluments received by Niyojit Teachers were
lesser than the salaries of non-teaching staff in schools, following details
were furnished by the State in a tabular chart.
“(1) What are the salaries of non-teaching staff in schools? B
There are posts of clerk and peon only under non-teaching
staff category in secondary/senior secondary schools. There are
no posts of non-teaching staff in Primary Schools (Class I-V) and
Middle Schools (Class I-VIII).
Comparison of salary of Peon, Clerk and Niyojit Teachers C

A. On initial appointment
(Amount in Rs.)
Description Peon Clerk Primary Primary Secondary Senior
(Working (Working Niyojit Niyojit Niyojit Secondary D
under under Teachers Teachers Teachers (10+2)
State State (Trained) (Graduate (Trained) Niyojit
Govt. Govt.) Trained) Teachers
(Trained)
Basic 18000 19900 13370 13370 13370 13370
D.A. @ 7% 1260 1393 936 936 936 936
E
HRA @ 4% 720 796 535 535 535 535
Medical 1000 1000 1000 1000 1000 1000
Gross salary 20980 23089 15841 15841 15841 15841
Note: No Grade Pay for Teacher for first two years of their
Services.
B. After completion of two years of service F
Description Peon Clerk Primary Primary Secondary Senior
(Working (Working Niyojit Niyojit Niyojit Secondary
under under Teachers Teach ers Teachers (10+2)
State State (Trained) (Graduate- (Trained) Niyojit
Govt. Govt.) Trained) Teachers
(Trained)
Basic 19100 21100 19650 20740 20740 21820 G
D.A. @ 1337 1477 1376 1452 1452 1527
7%
HRA @ 764 844 786 830 830 873
4%
Medical 1000 1000 1000 1000 1000 1000
Gross 22201 24421 22812 24022 24022 25220
salary H
802 SUPREME COURT REPORTS [2019] 7 S.C.R.

A C. After completion of two years of service with 20%
proposed enhancement of salary as per recommendation
of three persons committee constituted by the Hon’ble
Supreme Court.
Description Peon Clerk Primary Primary Secondary Senior
(Working (Working Niyojit Niyojit Niyojit Secondary
B under under Teachers Teachers Teachers (10+2)
State State (Trained) (Graduate (T rained) Niyojit
Govt. Govt.) Trained) Teachers
(Trained)
Basic 19100 21100 23610 24930 24930 26240
D.A. @ 1337 1477 1653 1745 1745 1837
7%
C HRA @ 764 844 944 997 997 1050
4%
Medical 1000 1000 1000 1000 1000 1000
Gross 22201 24421 27207 28672 28672 30127
salary
33. The State also placed on record, increases in emoluments
granted to Niyojit Teachers at various stages, as under:-
D
Increases in Salary of Elementary Niyojit Teachers
(Trained) – At a Glance
D e s c r ip t io n I n i t ia l P r e s en t In c r e a s e % R e m a rk s
fix e d G r o ss in In c r e a s e
S a la r y S a la r y Am ount
p er p er of
E M o n th M o n th * Sa l a ry
(in r s .) ( I n R s .) (In R s.)
R e c ru it e d in 1500 25564 24064 1604 P a y S c a le w . e.f .
2003 0 1 . 0 7 .2 0 1 5 &
S h i k sh a in c re m e n t of
M i tra 2 .5 7 ti m e s i n th e
(T r a in e d ) b a s ic p a y w .e .f .
R e c ru it e d in 5000 24843 19843 397 0 1 . 0 4 .2 0 1 7 as
2006 – p er
F Pa n ch a y a t / re c o m m e n d a tio n
P ra k h a n d / of 7 th Pay
N a ga r C o m m is si o n
S h i k sh a k
(T r a in e d )
R e c ru it e d in 7000 24134 17134 245
2010 –
Pa n ch a y a t
/P r a k h a n d /
G N a ga r
S h i k sh a k
(T r a in e d )
R e c ru it e d in 10000 22 812 12 812 128
2013 –
Pa n ch a y a t /
P ra k h a n d /
N a ga r
S h i k sh a k
H (T r a in e d )
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 803
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

*Note – Gross Salary includes Dearness Allowances (DA), House A
Rent Allowances (HRA) & Medical Allowances.
After proposed enhancement of salary by 20%, as per
recommendation of three persons committee constituted
by Hon’ble Supreme Court.
Description Present Revised DA HRA Medical Proposed
B
Basic Basic (7%) Gross
** Salary
Recruited in 2003 – 22130 26590 1861 1064 1000 30515.00
Shiksha Mitra (Trained)
Recruited in 2006 – 21480 25810 1807 1032 1000 29649
Panchayat/prakhand/Nagar
Shikshak (Trained) C
Recruited in 2010 – 20850 25050 1754 1002 1000 28806
panchayat/Prakhand/Nagar
Shikshak (Trained)
Recruited in 2013 – 19650 23610 1653 944 1000 27207
panchayat/Prakhand/Nagar
Shikshak (Trained)

**Note – As per recommendation of three persons committee D
constituted by Hon’ble Supreme Court, those Niyojit teachers,
who pass the special examination, would be covered under the
upgraded pay structure, as per the category mentioned as against
their designation in the proposed pay-matrix, with an increment of
20% in their pay of the pre-upgraded scale, which are being paid
E
w.e.f. 01.01.2016.”
34. Shri K.K. Venugopal, learned Attorney General for India,
advanced submissions on behalf of Union of India. It was submitted
that though the teachers appointed prior to 2006 and Niyojit Teachers
were working in the same schools and carrying on similar functions,
they formed separate cadres and came from different streams. The F
learned Attorney General relied upon decisions of this Court in State of
Punjab vs. Joginder Singh28 and in Zabar Singh and others vs. the
State of Haryana and others29 and more particularly paragraphs 25,
27, 28, 29, 30, 32, 33, 35, 36, 37 and 42 of said decision. According to
the learned Attorney General, if there are two different or dissimilar G
groups there can be disparity. He submitted that for employees of the
State Government it was a matter of status while Niyojit Teachers were
recruited through completely different source. In his submission for
28
1963 Suppl. 2 SCR 169
29
(1972) 2 SCC 275 H
804 SUPREME COURT REPORTS [2019] 7 S.C.R.

A doctrine of “equal pay for equal work” to be invoked there has to be
wholesale identicality and if there be any distinction in matters including
mode of recruitment, the doctrine could not be made applicable. He
also relied upon decisions of this Court in Kishori Mohanlal Bakshi vs.
Union of India & Ors.30 and Randhir Singh vs. Union of India and
others31, State of Haryana and others vs. Jasmer Singh and others32,
B
State of U.P. and others vs. Ministerial Karamchari Sangh9, Orissa
University of Agriculture and Technology and another vs. Manoj K
Mohanty33, Government of W. B. vs. Tarun K. Roy and others 34,
State of Haryana and others vs. Charanjit Singh and Others4 and
S.C. Chandra and others vs. State of Jharkhand and others 11. It
C was submitted by him that the spread of education as was sought to be
achieved in terms of the mandate of the RTE Act required the resources
of the State to be utilised to the maximum and in such executive functions
and policy matters the Court ought not to interfere. He relied upon
decision of this Court in Indian Drugs & Pharmaceuticals Limited Vs.
Workmen, Indian Drugs & Pharmaceuticals Limited35 and also invited
D
attention to paragraphs 23 onwards from the affidavit of the Union of
India as well as the estimation of additional financial burden as quoted
hereinabove. It was submitted that the direction passed by the High
Court would result in complete budgetary mismatch and tremendous
burden on the State.
E 35. In response to certain questions raised by the Court during the
course of hearing, the learned Attorney General submitted that education
being a concurrent list topic, the recruitment and other service conditions
of teachers including the matters concerning salary and pay fixation
were within the domain of the concerned State Government; that the
F provisions of the Act did not prescribe the percentage share of grant-in-
aid by Central Government and that there was no obligation on part of
the Central Government to provide 60% of the State’s education budget
or estimates; that no funds were sought by the State of Bihar to address
the issues of disparity in salary of teachers and that State of Bihar was
getting second highest funds under ‘Sarva Shiksha Abhiyan’. With
G
30
AIR 1962 SC 1139
31
(1982) 1 SCC 618
32
(1996) 11 SCC 77
33
(2003) 5 SCC 188
34
(2004) 1 SCC 347
35
H (2007) 1 SCC 408
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 805
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

respect to applicability of Rule 20(3) of 2010 Rules, the learned Attorney A
General submitted that said Rule was applicable only to Union Territories
without Legislatures, Kendriya Vidyalayas, Navodaya Vidyalayas and
the States and Union Territories with Legislatures were expected to
have their own Rules and State of Bihar had published its own set of
Rules in 2011.
B
36. The submissions on behalf of Niyojit Teachers and their
organizations who appeared as respondents and intervenors were led by
Mr. Kapil Sibal, learned Senior Advocate on behalf of Bihar Rajya
Prarambhik Shikshak Sangh. The submissions of the other learned
counsel who followed him are dealt with in the order that they appeared
and argued. It was submitted by Mr. Sibal:- C

(i) Niyojit Teachers were working in same schools, the management
and control of which, was taken over by the State. The Niyojit
Teachers were imparting education in same schools and discharging
same functions as were being discharged by the Government
Teachers. D

(ii) RTE Act contemplated schools owned by the appropriate
Government and those which are owned by the local authorities.
In the present case all the schools in question were owned by the
State.
E
(iii) Under Section 6 of the RTE Act the appropriate Government
was obliged to carry out the provisions of the Act within a period
of three years.
(iv) Section 7 of the RTE Act put the responsibility on the Central
Government as well as the State Government concurrently for F
carrying out the provisions of the Act.
(v) The Union Government had actually collected Education Cess
and as such the budgetary constraints could never be an argument
to defeat the rights of Niyojit Teachers.
(vi) As a matter of law, financial difficulty would be no ground to G
oppose the rightful demands of Niyojit Teachers for equal pay for
equal work which has always been held to be a constitutional
obligation.

H
806 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (vii) In fact, the obligation to raise money was on the State and it
cannot be heard to raise a plea of budgetary constraint.
(viii) Rule 7 of 2010 Rules obliged the Central Government to
prepare annual estimates of capital and recurring expenditure for
carrying out the provisions of the Act for a period of 5 years.
B Raising of resources was integral to the functioning of and carrying
out the obligations under the RTE Act.
He distinguished the decisions cited by the learned counsel
appearing for State of Bihar and relied upon decisions of this Court in
Dhirendra Chamoli and Another vs. State of U.P36., Bhagwan Dass
C and others vs. State of Haryana and others37, Jaipal and others.
vs. State of Haryana and others 3, State of Punjab & others. vs.
Jagjit Singh and others.2. He submitted that education has always
been at the core and of immense importance for advancement of a
society and the State having failed to discharge its duty in ensuring non-
discriminatory treatment to its teachers, the Court may set to malaise
D right. He submitted that the drift of the submissions advanced by the
State as well as the Union of India would mean that there ought not to
be cadre of quality teachers.
37. Mr. C.A. Sundaram, learned Senior Advocate appeared for
certain associations of teachers and submitted that it was not open to
E the State to plead and argue financial burden or difficulty in carrying out
responsibility enjoined by the provisions of the constitution and particularly
Article 21A of the Constitution. It was his submission that effectively
Niyojit Teachers were made to carry the burden and pay for the
constitutional goals which the States was obliged to achieve. He
F emphasized that nature of responsibility, qualifications, experience and
duties discharged by Niyojit Teachers were at par with the Government
Teachers that both the categories were discharging their functions and
imparting education in same schools and as such there could be no
distinction. He relied upon decisions of this Court in Ashoka Kumar
Thakur vs. Union of India and others.38, Society for Unaided Private
G Schools of Rajasthan vs. Union of India and Another39, Karnataka

36
(1986) 1 SCC 637
37
(1987) 4 SCC 634
38
(2008) 6 SCC 1
39
H (2012) 6 SCC 1
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 807
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

State Private College Stop-Gap Lecturers Association vs. State of A
Karnataka and Others 40, Baseeruddin M. Madari and others. vs.
State of Karnataka and Others41, State of Uttar Pradesh and another
vs. Anand Kumar Yadav and others42
38. Mr. Vijay Hansaria, learned Advocate submitted that Article
21A was inserted by the 86th Constitutional Amendment Act on 12th B
December, 2002 but came into force on 01.04.2010. After enactment
of the RTE Act on 26.08.2009, two notifications were issued on
16.02.2010. Under the first notification, the provisions of Article 21A
were directed to come into force on 01.04.2010 while under the second
notification the provisions of the RTE Act were directed to come into
force on 01.04.2010. These developments indicate that though the C
Constitutional Amendment Act was passed in the year 2002, period of
almost 8 years was given to the States to gear themselves up and cope
up with the obligations which were to be discharged in terms of Article
21A read with the provisions of RTE Act. He emphasised that the idea
of free and compulsory education first germinated in the decision in D
Unni Krishnan, J.P. and others vs. State of Andhra Pradesh and
others43, which was later recommended in 165th Law Commission
Report. The States thus had enough time at their disposal to equip
themselves adequately to cope up with the obligations as aforesaid. He
further submitted that under various enactments namely National Food
Security Act, 2013, Juvenile Justice Act, 2015, Mahatma Gandhi National E
Rural Employment Guarantee Act, 2005. Child and Adolescent Labour
(Prevention and Regulation) Act, 1986, separate funds are constituted
and if budgetary constraints is the reason, a mandamus on the lines that
was issued by this Court in M.C. Mehta vs. State of T.N. and others44,
could be issued. He also invited attention of the Court to the report of F
the Controller and Auditor General which indicated that substantial sums
were collected as primary education cess and higher and secondary
education cess. The information in that behalf available in para 2.3.3 of
the Report of CAG for the year 2016-17 was as under:
“2.3.3 Secondary and Higher Education Cess G

40
(1992) 2 SCC 29
41
1995 Supp (4) SCC 111
42
(2018) 13 SCC 560
43
(1993) 1 SCC 645
44
(1996) 6 SCC 756 para 29 H
808 SUPREME COURT REPORTS [2019] 7 S.C.R.

A The Secondary and Higher Education Cess (SHEC) was
introduced in the Finance Act, 2007, to fulfil the commitment of
Secondary and Higher Education.
Scrutiny of the Union Finance Accounts for the period 2006-07 to
2016-17 revealed that a total collection of SHEC of ¹ 83,497 core
B has been made and is being credited in the CFI without creating
any reserve fund in Public Account.
Unlike the creation of Prarambhik Siksha Kosh in the case of
primary/elementary education cess, for the SHEC neither a Fund
was designated to deposit the proceeds of SHEC nor were
C schemes identified on which the cess proceeds were to be spent.
Consequently, the commitment of furthering Secondary and Higher
Education Cess as envisaged in the Finance Act was not
transparently ascertainable.
The matter of non-creation of Fund and non-dentification of
D schemes was raised in previous years’ Report but the trend is
persistent.”
He also relied upon decision of this Court in Secretary, State of
Karnataka and others vs. Umadevi (3) and others45 (para 55).
39. Mr. Salman Khurshid, learned Senior Advocate submitted that
E the content of Right under Article 21A of the Constitution would be
meaningless unless the role of a teacher was not considered in proper
perspective. For a child to be given good quality education, the teachers
must be well qualified and ensured decent wages. In his submission that
would be the true import of Rule 20(3) of 2010 Rules and it was the
F responsibility of a State to garner resources. He relied upon extracts
from a book46 and particularly paragraphs 5 and 6 captioned “Public
Expenditure and Education Policy”. The relevant extract which was
relied upon was:-
“While the development of low-cost schooling facilities has helped
to expand the reach of elementary education in spite of widespread
G
budgetary crises at the state level, gaping inadequacies remain
(both in quantitative and qualitative terms) in the schooling
infrastructure, as the findings mentioned in the preceding section

45
(2006) 4 SCC 1
46
H [“India – Development and Participation” by Jean Dreze and Amartya Sen]
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 809
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

indicate. Further, the trend towards increasing reliance on second- A
track education facilities has some troubling features. At least
three serious issues arise in this context, related respectively to
quality, equity and sustainability.
The quality issue is concerned with the fact that teacher
qualifications and infrastructural facilities are often poorer in B
second-track schooling facilities than in regular schools. In some
cases there are also compensating features, especially greater
accountability (e.g. due to better work incentives or closer
community involvement), but the question remains whether these
facilities can really be expected to deliver education of acceptable
quality. C

The equity issue follows from that concern: if ‘second-track’ means
‘second-rate’, the expansion of alternative schooling facilities
involves a real danger of diluting the right of underprivileged
children to quality education. While these facilities might help
them in the short term, this might be done at the risk of perpetuating D
the deep inequities of India’s schooling system, whereby children
of different social backgrounds have vastly different educational
opportunities (not only in terms of the divide between government
and private schools but now also within the framework of
government schools.” E
40. Ms. Vibha Datta Makhija, learned Senior Advocate placed
comparative chart of salary and emoluments drawn by Niyojit Teachers
as against Government Teachers at various levels. She submitted that
the introduction of Article 21A in the Constitution was not an exercise
done overnight but considerable thought process had gone into, in making F
such Right a reality. Even after the introduction of Article 21A, substantial
period of eight years was afforded to the States to equip themselves on
every front. In her submission, Sections 23 and 25 of the Act ensure
qualitative and quantitative aspects and if both the aspects are taken
together it would be inevitable that the teachers must be in adequate
numbers and also must have decent wages. According to her, there G
were three sets of guarantees available to Niyojit Teachers. First, under
Article 41 of the Constitution, the second under Article 14 of the
Constitution and the third under the provisions of the RTE Act, on the
basis of which the Niyojit Teachers could rightfully claim parity in salary
H
810 SUPREME COURT REPORTS [2019] 7 S.C.R.

A and emoluments. She relied upon the Report of the Finance
Commission47, the relevant portion being:-
“12.190… ….The MHRD estimations have assumed a minimum
salary of Rs.5000 per month for primary teachers and Rs.7000
per month for upper primary teachers. There is no uniform pattern
B in the manner of appointment and pay scales of SSA teachers
across states. In some states such teachers are appointed by the
State Government on regular pay scales, whereas in many others,
such teachers are appointed by local governments on local body
pay scales or on contract. The implementation of the Sixth Central
Pay Commission (CPC) would, in any event, create an upward
C pressure on teachers’ salaries, whatever the mode of appointment.
We have, therefore, assumed an increase of 30 per cent over the
base year, in view of the fact that the bulk of these teachers are
located in rural areas. We have also provided for an annual
increase of 6% on these salaries, in conformity with our assumption
D of the post-CPC yearly increase in salaries of government
servants. Similarly, while SSA does not provide for any annual
increase in the quantum of funds on account of inflation, we have
provided for an annual increase of 5 per cent across all non-salary
components of the scheme.
E 12.20 The SSA began with a matching fund requirement of 15
per cent from states in 2001-02. Till 2006-07, the matching fund
requirement was 25 per cent. It has increased progressively to
35 per cent in 2007-08 and 2008-09 and to 40 per cent in 2009-10.
It is expected to go up to 45 per cent in 2010-11 and to 50 per cent
in 2011-12, the terminal year of the Eleventh Five Year Plan. We
F assume that the same ratio will continue in the remaining years of
the award period. Various states have expressed difficulties in
providing this matching share, especially since the size of their
annual plans has increased over the years.
12.21 We are of the view that, in the given circumstances
G augmenting the resources of the states to cater to this need will
be the most appropriate way to provide grants for the elementary
education sector. This will also provide some fiscal space to the
states to meet a part of the additional resources required to
implement the RTE Act. We have also considered the fact that
H 47
13th Finance Commission, for 2010-15 published in 2009
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 811
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

given the resource scarcity faced by the states as a result of the A
economic slowdown, several states have not been able to provide
for their share of 40 per cent in 2009-10. In fact, we estimate
that due to the adverse fallout of the economic downturn, the
states may not be able to provide more than 35 per cent from
their resources over the current year and the next year. Hence,
B
we recommend for the award period, a grant of 15 per cent of the
estimated SSA expenditure of each state. This amount will cover
the difference between the targeted state share of 50 per cent by
the terminal year of the Eleventh Plan and the contribution required
to be made in 2008-09, i.e. 35 per cent of the individual states’
SSA share. C
12.22 The north-eastern states are required to provide only 10
per cent from their resources as their share for SSA. However,
as the MHRD has pointed out in a supplementary memorandum,
several of these states have not been able to provide even this
amount, leading to slowdown in implementation of SSA. In order D
to alleviate the fiscal constraints of these states we recommend a
grant amounting to the difference between the average amount
contributed by each state in the years 2007-08 and 2008-09 and
the amount they need to contribute (on the basis of a 10 per cent
share) in each of the five years of the award period, subject to a
minimum of Rs.5 crore per year. The requirement of the north- E
eastern states, calculated on this basis, is Rs.367 crore over a
period of five years.
12.23 The recommended grant for elementary education for all
these states, in aggregate, works out to Rs.24,068 crore. The
state-wise and year wise allocations are given in Annex 12.1. In F
order to ensure that these grants do not substitute for the current
expenditure of states, we stipulate that the expenditure (plan +
non plan) under elementary education, i.e. major head 2202, sub-
major head-01, exclusive of the grants recommended herein, should
grow by at least 8 per cent, the assumed growth rate in our G
projections of the non-salary component of the social sector during
the award period, annually, during 2010-15.”
Ms. Makhija then submitted that there had been three categories
of teachers in the State, first category being that of regular teachers
who are getting salary and emoluments at government pay scale. The H
812 SUPREME COURT REPORTS [2019] 7 S.C.R.

A second category was that of Shiksha Mitras who were inducted under
Central Schemes since 2002. The third category of teachers are those
who were inducted in terms of 2006 Rules. The second category as
stated above, now stands merged in the last category and are collectively
known as Niyojit Teachers. She relied upon decisions in State of Gujarat
and Another vs. Raman Lal Keshav Lal Soni and Others48, State of
B
U.P. and Others vs. Chandra Prakash Pandey and Others49, Shayara
Bano vs. Union of India and Others50, E. P Royappa vs. State of
Tamil Nadu and Another51.
Ms. Makhija also submitted that the distinction drawn by the learned
Attorney General was artificial and without any nexus to the object.
C She further submitted that the State cannot let disparity continue and
perpetuate inequality.
41. Mr. P. Chidambaram, learned Senior Advocate stressed on
the content of the right under Article 21A and submitted that the emphasis
must be on good quality education. He submitted that under Section 26
D of the RTE Act, the vacancy position of teachers could not be more than
10% and as such the teachers had to be appointed in adequate numbers
to match the Pupil-Teacher ratio as prescribed and it would not be proper
on part of the State to put up an excuse of budgetary constraints. He
further stated that under Section 28 of the Act, a teacher would not be
E allowed to engage himself in private teaching activity. He relied upon
State of Punjab and Others vs. Jagjit Singh and Others 2, Hussainara
Khatoon and Others (IV) vs. Home Secretary, State of Bihar, Patna52,
Khatri and Others (II) vs. State of Bihar and Others53, Ashoka Kumar
Thakur vs. Union of India and Others38 and Brij Mohan Lal vs.
Union of India and Others54. Lastly, he urged that the right under
F Article 21A ought to be made meaningful.
42. Dr. A. M. Singhvi, learned Senior Advocate appeared on behalf
of Bihar Madhyamik Shikshan Sangh representing those teaching classes
IX onwards. According to him, the total liability in terms of the decision
rendered by the High Court in the present matter was in the range or
G
48
(1983) 2 SCC 33
49
(2001) 4 SCC 78 para 10
50
(2017) 9 SCC 1
51
(1974) 4 SCC 3 para 85
52
(1980) 1 SCC 98 para 10
53
(1981) 1 SCC 627 para 5
H 54
(2012) 6 SCC 502 paras 137 to 144
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 813
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

Rs.9283.69 Crores out of which the share allocable to the Central A
Government would be Rs.4599.07 crores and that of the State
Government would be Rs.4684.63 crores. In a Note presented by him,
the aspect that Niyojit Teachers were performing same/similar duties
and responsibilities was highlighted as under:-
“i) It is admitted fact that these Niyojit teachers are discharging B
same/similar duty and responsibility as discharged by the Regular
teachers of Pre-2006 Rules. The impugned order has dealt it in
detail and returned important finding on this issue in favour of
these teachers at more than one place.
ii) These Niyojit teachers are imparting education to the same C
students, with same syllabus in the same school apart form doing
the same evaluation work in secondary and +2 examination
conducted by the Bihar School Examination Board. At the time
of evaluation, they are treated at par with and paid the same
remuneration like the teachers appointed prior to 2006 Rules.
D
iii) Moreover, these Niyojit teachers are also engaged by the State
like Regular teachers in duties like duty for preparation of census
(economic survey), Election duty from preparation of voter list till
counting of votes. Interestingly, while informing the Election
Commission with regard to deploying these teachers on election
duty, the State treats these Niyojit teachers as Regular teachers. E

iv) These teachers like regular teachers are also engaged in
imparting Special training namely ‘Diploma in Elementary Training’
provided by National Institute of Open Schooling (NIOS) Board,
under Union of India, which is an on-going programme, wherein
in a selected school of each district, Study Centre is opened to F
impart training. In these programmes these Niyojit teachers work
as Coordinator, Assistant Co-ordinator, resource persons and
Supervisors. Importantly, sometimes, when the minimum required
qualification like MA/M.SC/B.Ed./M.Ed. is not found in the regular
teacher, then Niyojit teachers with such qualifications are made G
Co-ordinator in place of regular teachers in that Study Centre.
v) Many of these Niyojit teachers are chosen as Master Trainers,
who are responsible for imparting training to both category of
teachers i.e. Niyojit Teachers and Regular Teachers. Pertinently,
this training is conducted/organised by State Council of Educational
H
814 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Research and Training, Government of Bihar (SCERT similar to
NCERT).
vi) Furthermore, such in-service training is part of a continuous
process which includes preparation of Syllabus, Curriculum and
innovative teaching method as well as these Niyojit teachers are
B also given responsibility of writing text books for students form
class I to class XII under the command of SCERT.
vii) These Niyojit teachers are also engaged in setting of question
papers, moderating, evaluating the answer sheets etc., at par with
the regular teachers on equal remuneration.
C viii) Responsibility of Acting Principals in substantial number of
the Secondary and Higher Secondary schools are performed by
these Niyojit teachers. Kindly see list of secondary and higher
secondary schools wherein these Niyojit teachers are working as
Acting Principal, however, receiving the salary of Niyojit teachers.”
D It was his submission that the cases decided by this Court on the
touchstone of Article 14 of the Constitution consistently show that if
functionally the duties performed by the class seeking parity are same
or identical, unless required qualifications were higher, the equality
doctrine must apply and in such cases the source of employment would
E be irrelevant. He also relied upon the statistics to show that as many as
1459 Niyojit Teachers were acting as Head Masters in Higher Secondary
Schools in the State. By way of an example, he further submitted details
from Anugrah Kanya S.S.S, Gaya in which six Government Teachers
and three non-teaching staff were on the roles while 22 Niyojit Teachers
were working in the same school. All Government Teachers and the
F non-teaching staff were drawing pay higher than what was paid to each
of those Niyojit Teachers.
He also submitted that with effect from 3rd July, 2012, under the
Rules framed by State of Bihar, it was obligatory for every teacher
teaching classes IX onwards to have TET qualification and all Niyojit
G Teachers teaching such classes were equipped with said qualification.
Responding to the submission that the category of Government Teachers
who was taken to be a dying or finishing cadre, he submitted that no
such policy was discernible from any statutory provision. He relied
upon decisions of this Court in State of Gujarat and Another vs. Raman
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 815
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

Lal Keshav Lal Soni and Others48 and Arindam Chattopadhyay and A
Others vs. State of West Bengal and Others55.
43. Mr. C. S. Vaidyanathan, learned Senior Advocate also
representing teachers teaching classes IX onwards submitted that two
issues had been raised on behalf of the State whether there could be
equality with a dying or vanishing cadre and whether on the grounds of B
financial constraints the State was justified in not affording same pay
and emoluments to Niyojit Teachers. He reiterated that both the
categories of teachers were performing same or similar functions. He
relied upon an Article “Perceptions on Getting Children to Schools –
Before and After RTE Act”56.
C
44. Shri Ranjit Kumar, learned Senior Advocate appeared on behalf
of Secondary and Higher Secondary teachers teaching classes IXth
onwards. He also stressed the point that there was complete functional
equality in every respect as regards duties and responsibilities between
Government Teachers on one hand and Niyojit Teachers on the other. It
was his submission that though under 2006 Rules, Panchayats and D
Municipal Bodies were entrusted with the task of selecting teachers, in
reality the Committees constituted for the purpose comprised of all
government officials and the State Government was in real and effective
control of the situation. He relied upon the decisions of this Court in
Bihar State Government Secondary School Teachers Association E
vs. Bihar Education Service Association and others57 particularly
on para 50.
45. Shri Ananda Nandan, learned Advocate appeared on behalf
of Niyojit Teachers who were appointed after 2012. It was submitted
by him that such teachers who were duly qualified and had passed TET F
examination alone be considered to be entitled to parity with Government
Teachers and those who did not have the requisite qualifications and had
not passed TET examination ought not to be afforded same treatment.
In his submission that would be the true import of the idea of making
quality education available to the children in terms of the RTE Act. He
also relied upon decision of this Court in State of Uttar Pradesh and G
others vs. Shiv Kumar Pathak and others58.
55
(2013) 4 SCC 152 para 5 and 13
56
By Shantha Sinha, Department of Political Science, University of Hyderabad
57
(2012) 13 SCC 33
58
(2018) 12 SCC 595
H
816 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 46. Mr. V. Shekhar, learned Senior Advocate appeared on behalf
of some primary school teachers and Parivartankaari Teachers Maha
Sangh. He relied upon the decisions of this Court in Municipal Council,
Ratlam vs. Shri Vardichand and others59, Secretary and Mahatama
Gandhi Mission and another vs. Bhartiya Kamgar Sena and
others60(paragraphs 82 to 90 and 95).
B
47. Mr. Prashant Bhushan, learned Advocate appearing for some
of the primary teachers submitted that those teachers having TET
qualifications, were regularly selected by local authorities and though,
the method of recruitment may be different, they were doing the same
work as was being discharged by other Government Teachers. Their
C qualifications were identical and in terms of mandate of Rule 20(3) of
2010 Rules, they were entitled to pay and allowances at par with the
Government Teachers.
48. Mr. Rajiv Dhawan, learned Senior Advocate appearing for
certain secondary and primary teachers submitted that the statutory
D provisions including 2006 Rules clearly showed the all-pervasive role of
the State Government which had created these artificial distinctions and
categories and the Panchayats were simply implementing what the State
had decided. In his submission the basic issues were whether there
could be any discretion unto the State in matters concerning constitutional
E mandate and whether financial constraints could be taken as a valid
excuse. He reiterated the submission that under Section 7 of the RTE
Act there was a concurrent financial responsibility on the State
Government as well as the Central Government. Adverting to the draft
Notes which were placed before the Cabinet on 25.06.2006, he submitted
that the entire mechanics was about financial arrangement and there
F was nothing such as financial constraints upon the State. He relied upon
decisions of this Court in Mohini Jain vs. State of Karnataka and
others61, Unni Krishnan, J.P. and others vs. State of Andhra Pradesh
and others43 and State of Himachal Pradesh vs. H.P. State Recognised
& Aided Schools Managing Committees and others62
G 49. Mr. Sanjay Hegde, learned Senior Advocate appearing for
some of the primary teachers submitted that as it is the income of a
59
(1980) 4 SCC 162
60
(2017) 4 SCC 449
61
(1992) 3 SCC 666
62
H (1995) 4 SCC 507
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 817
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

teacher has always been a limited one and the attempt on part of the A
State was to restrict it further. Relying on Workmen represented by
Secretary vs. Reptakos Brett. & Co. Limited and another63 it was
submitted that the teachers must be ensured living wages and that the
Niyojit Teachers were entitled to the salary and emoluments as were
made available to Government Teachers. He also relied upon decisions
B
of this Court in Municipal Council, Ratlam vs. Shri Vardichand and
others59 and Chandigarh Administration and others vs. Rajni Vali
and others64.
50. Mr. B.P. Verma, learned Senior Advocate appeared on behalf
of certain teachers seeking impleadment and relied upon the decision of
this Court in Secretary, State of Karnataka and others vs. Umadevi C
(3) and others45 (para 55), while Mr. V.N. Sinha, learned Senior
Advocate for some primary and secondary teachers as well as librarians
relied upon a decision of this Court in Maneka Gandhi vs. Union of
India and another65 to submit that there ought to be reasonableness in
every action of the State. Adopting the submissions made by all the D
other learned counsel, it was submitted by them that Niyojit Teachers
were entitled to same salaries and emoluments as were given to
Government Teachers.
51. In rejoinder, it was submitted by Mr. Dinesh Dwivedi, learned
Senior Advocate that a conscious decision was taken not to make any E
further appointments in the cadre of Government Teachers and but for
one-time appointment which was done pursuant to orders passed by the
High Court and this Court, the strength of Government Teachers would
have been considerably lower. The State could as well have abolished
all the posts held by Government Teachers after giving them requisite
compensation and in the process could have ensured one single cadre of F
Niyojit Teachers. The attempt to compare a huge body of Niyojit
Teachers which was more than 4.50 lakhs and seek parity with a group
which was a dying or vanishing cadre was not correct. He submitted
that there was no basis to claim that the quality of education would be
compromised if Niyojit Teachers were not paid same salary as was G
given to Government Teachers. The decisions of this Court in State of
Punjab vs. Joginder Singh28 and in Zabar Singh and others vs. State

63
(1992) 1 SCC 290
64
(2000) 2 SCC 42
65
(1978) 1 SCC 248 H
818 SUPREME COURT REPORTS [2019] 7 S.C.R.

A of Haryana and others 29, S.C. Chandra and others vs. State of
Jharkhand and others11, State of Haryana vs. Charanjit Singh4 and
State of Haryana and another vs. Tilak Raj and others66 were heavily
relied upon by Mr. Dwivedi. It was submitted that the decision in State
of Punjab and others vs. Jagjit Singh and others2 did not notice the
earlier decisions of this Court in State of Punjab vs. Joginder Singh28
B
and in Zabar Singh and others vs. State of Haryana and others29. It
was submitted that the decision in State of Punjab vs. Joginder Singh28
had clearly laid down that the principle of ‘equal pay for equal work’
was not deducible from Article 14 of the Constitution. Reliance was
also placed on Section 2(n) of the RTE Act and the expression ‘controlled
C by the appropriate government or a local body’ to submit that it was
sufficient indication that new kind of service could be put in place by the
appropriate government. He submitted that the Right under Article 21A
of the Constitution was child-centric and a claim could not be based by
the Niyojit Teachers on the basis of such Right to claim parity as was
sought to be done. Reliance was placed on the decisions of this Court in
D
All India Bank Employees’ Association vs. National Industrial
Tribunal and others 67, Society for Unaided Private Schools of
Rajasthan vs. Union of India and another39.
52. Mr. Shyam Divan, learned Senior Advocate, in rejoinder, relied
upon the judgment of Constitution Bench of this Court in Navtej Singh
E Johar and others vs. Union of India through Secretary, Ministry of
Law and Justice68 and paragraphs 95, 96, 104, 110, 118 and 119 thereof.
In his submission, progressive realisation of rights would require certain
amount of balancing and adjustment. If the matter was to be considered
from the standpoint of child, the school system ought to be of such order
F which helps realisation of such Right but, at the same time there ought
not to be any negative impact on the dignity of any other individual.
Considering these two ideas, if the endeavour adopted by the State was
to subserve goals set by Article 21A, the attempts in that behalf would
be perfectly constitutional as long as dignity of any other individual was
not compromised. According to him, the two competing visions which
G were pressed into service in the present matter were (i) on behalf of
Niyojit Teachers which visualised perspective from the standpoint of
individual teachers which was “me first” approach, whereas, what the
66
(2003) 6 SCC 123
67
(1962) 3 SCR 269 = AIR 1962 SC 171
68
H (2018) 10 SCC 1
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 819
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

State was emphasising was community right and to achieve and to A
subserve the societal needs which could be categorised as “we first”
approach. Both could be valid visions but while considering which
choice would be the most appropriate one, it would require policy decisions
which, by very nature could be complex. The policy decisions on the
point would be completely linked to social issues and economy and health
B
of the society. These issues as well as vision in that behalf ought to be
left to the State. He further submitted that the various factual details
presented by the State would show great impact of its policies and the
tremendous strides the State had undertaken in that behalf. He relied
upon decisions of this Court in Acharya Maharajshri Narendra
Prasadji Anandprasadji Maharaj and others vs. The State of C
Gujarat and others 69(para 31), Assam Sanmilita Mahasangha and
others vs. Union of India and others70 (para 33) and Subramanian
Swamy vs. Union of India, Ministry of Law and others71.
53. With the permission of the Court, Mr. Sibal, Mr. Sundaram,
Mr. Vijay Hansaria and Mr. Ranjit Kumar, learned Senior Advocates D
responded to the submissions made in rejoinder. It was submitted that
the very premise that the schools were managed by local authorities
was wrong; they were taken over and owned by the State. It was
submitted that the concept of ‘equal pay for equal work’ was a
fundamental doctrine though may not strictly be a Fundamental Right.
Mr. Hansaria submitted a list of at least 40 cases where doctrine of E
‘equal pay for equal work’ was adopted without noticing the decisions
of this Court in State of Punjab vs. Joginder Singh28 and in Zabar
Singh and others vs. State of Haryana and others29.
It was also submitted that as against the funds which were made
available for various Central Schemes, about Rs.1802 crores were lying F
unspent and as such the budgetary constraints could not be an argument.
By extending schools and educational facilities to every nook and corner
of the State or in every neighbourhood the State was not doing any
charity but was discharging its constitutional obligations and as such,
budgetary constraints could never be a ground. G
54. Having heard the learned counsel extensively, who took us
through all the relevant material on record and placed before us various
69
(1975) 1 SCC 11
70
(2015) 3 SCC 1
71
(2016) 7 SCC 221 H
820 SUPREME COURT REPORTS [2019] 7 S.C.R.

A contours of the issues before us, the basic questions that arise for our
consideration are:-
a) Whether the Niyojit Teachers are right in their submission
that they are entitled to and were rightly granted ‘equal pay
for equal work’; and
B b) Whether the State is justified in its approach and is right in
claiming that the distinction made by it was correct and fair.
These questions, according to us, go to the root of the matter.
While answering these questions, we may also consider various facets
to the issues as presented by various counsel, including the effect of the
C provisions of the RTE Act.
55. According to the learned counsel appearing for the State, the
matter has to be seen in the backdrop of what the State was confronted
with around the year 2001-2002 and what it has, over the last few years,
been able to achieve as a result of steps taken by the State including the
D appointment of Niyojit Teachers and creation of a separate cadre of
Niyojit Teachers. According to the State, on one hand it had decided to
let the original cadre of Government Teachers to be a cadre without any
fresh appointments and thus let it be a dying or vanishing cadre, while on
the other hand it had decided that substantial number of teachers be
E appointed at Panchayat levels.
56. At the outset we must note that though the 86th Constitution
Amendment Act was passed in the year 2002, the Article was brought
into force on 1.4.2010 i.e. at least after eight years. It is also a matter of
record that the RTE Act which was, all the while in contemplation, was
F enacted in the year 2009 and was also brought into force on 1.4.2010.
The developments in that behalf including the historical background
leading to the introduction of Article 21A and the enactment of the RTE
Act were dealt with in extenso in paragraphs 441 to 461 in the opinion of
Bhandari, J in Ashoka Kumar Thakur vs. Union of India38. We,
therefore, have to see how the State had conducted itself and whether
G the steps taken by the State were in order to discharge its obligations.
In the year 2002 itself, Scheme known as Sarva Shiksha Abhiyan
was introduced at the Central level. In terms of the Scheme, the facilities
of education and infrastructure were required to be spread through the
length and breadth of the respective States. The steps taken in that
H behalf, specially in the present matter, indicate that sometime in 2002
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 821
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

more than one lakh Shiksha Mitras were appointed by the State. These A
Shiksha Mitras were not part of the regular cadre of Government
Teachers, were not appointed through the regular process of selection
and their services were engaged on a fixed salary. These Shiksha Mitras,
who were outside the regular cadre of teachers, were entrusted with
the job of manning schools in the remotest corners of the State. Sometime
B
in 2006, certain decisions were taken by the Cabinet of Ministers,
Government of Bihar. The control in respect of appointment of teachers
in all nationalized schools and other aspects, which were hithertobefore
with the State Government, were given over to various Panchayat Raj
institutions. This was in conformity with Articles 243G read with Serial
No. 17 of the Eleventh Schedule in respect of Panchayats at the village, C
intermediate and at district levels and also in terms of Article 243W read
with Serial No.13 of the Twelfth Schedule in respect of Nagar
Panchayats, Municipal Councils or Municipal Corporations. The decisions
taken by the Cabinet were in accord with the constitutional mandate of
enabling Panchayat Raj Systems on one hand while on the other, the
D
decision also raised the number of teachers substantially so that national
parameters on student:teacher ratio could be achieved by the State. The
statistics placed on record show that about 12% children in the State
who were outside the schools had to be brought within the stream of
education. The decision discernible from the Cabinet Notes was to
achieve these objectives. After the decision of the Cabinet, the idea was E
translated in an appropriate statutory regime and new set of Rules viz.
2016 Rules were put in place. A decision was taken that there would be
no further appointments in the cadre of existing teachers viz. Government
Teachers and a completely new cadre of teachers named Niyojit Teachers
was created. The erstwhile Shiksha Mitras were absorbed in this new
F
cadre of Niyojit Teacher and fresh employments were made at Panchayat/
Block levels so that teachers in sufficient numbers could be appointed.
The developments indicate that presently about four lakh such teachers
have been appointed and the statistics presented by the State, which are
reflected in detail in abovenoted paragraph 31, show the advances made
by the State in that behalf. It was submitted that the State could thus G
achieve substantial improvement in the enrolment of students and the
results have also seen appreciable rise in literacy rate in the last decade
in respect of the State.
57. We are thus having a situation where the decisions taken by
the State as submitted on its behalf, were guided by public interest and H
822 SUPREME COURT REPORTS [2019] 7 S.C.R.

A societal commitment. The idea to achieve spread of education to the
maximum level was attained and in the process the State had, to a great
extent, tried to meet with the obligations that it was required to discharge
under the provisions of Article 21A read with the RTE Act. What has
however been projected on behalf of Niyojit Teachers is that while
achieving these objectives, the State ought not to have discriminated
B
against the Niyojit Teachers and should have extended fair treatment to
them by ensuring ‘equal pay for equal work’. The arguments on behalf
of State are that the first objective that had to be accomplished was to
have the reach and spread of education to every nook and corner of the
State and to satisfy the requirements of having schools and facilities in
C every neighbourhood as contemplated by the provisions of the RTE Act;
and having achieved that objective, the State is now seeking to improve
the service conditions and emoluments of the Niyojit Teachers. What
therefore emerges is whether the actions on part of the State were
justified or whether the Niyojit Teachers are right in their submission
that they are entitled to ‘equal pay for equal work’.
D
58. Before we consider the rival submissions in connection with
this issue, it must be mentioned that the cadre of Government Teachers
with which parity or equality has been sought 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
E the exception as narrated hereinabove in paragraph 17, 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
F 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
G lakhs which is seeking parity with a dying or a vanishing cadre.
59. In order to consider the applicability of the doctrine of ‘equal
pay for equal work’, one of the fundamental aspects to be considered is
nature of duties. As was rightly submitted by Mr. Kabil Sibal and Dr.
A.M. Singhvi, learned Senior Advocates, the nature of duties performed
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 823
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

by Niyojit Teachers are certainly same or similar to those performed by A
the Government Teachers. As a matter of fact, both the sets of teachers
are teaching in the same school and teaching same syllabus. The pointers
placed by Dr. Singhvi in his submission as well as the example given by
him evidently show that there is no distinction or difference as regards
nature of duties performed and responsibilities discharged by the Niyojit
B
Teachers. Some of the Niyojit Teachers have also been acting as
Headmasters. However, the Rules in question viz. 2006 Rules clearly
indicate that the method of recruitment of Niyojit Teachers was
completely different from the one under which Government Teachers
were recruited. The Selection Committee contemplated under the
provisions of 2006 Rules comprised of officials at the Panchayat or Block C
levels. The selection was also at local levels and not through Bihar
Public Service Commission or Schools Selection Board. The distinction
brought out in that behalf by the State in para 13 of its supplementary
counter affidavit filed in the High Court clearly shows the difference in
mode of recruitment. It is thus clear that the mode of recruitment and
D
the standards of selection were different but the nature of duties
performed by the Niyojit Teachers have been absolutely identical. Could
there be a distinction between these two streams of teachers. We may,
therefore, at this stage see the development of the doctrine of ‘equal
pay for equal work’ and whether it admits of any qualifications or
exceptions. E
60. In Kishori Mohanlal Bakshi vs. Union of India72 the
Income Tax Officers were divided into two categories and Class-I
Income Tax Officers alone were entitled to be considered for promotion
to the posts of Commissioners and Assistant Commissioners. There
could be no such direct promotion from amongst officers who were F
Income Tax Officers Class-II. The submission that this was violative of
Article 16(1) of the Constitution was rejected. Further submission was
that both the categories were doing same kind of work but their pay-
scales were different and as such the doctrine of ‘equal pay for equal
work’ stood violated. While considering said submission, the Constitution
Bench stated:- G

“3. The only other contention raised is that there is discrimination
between class I and Class I Officers inasmuch as though they do
the same kind of work their pay-scales are different. This, it is
72
AIR 1962 SC 1139 H
824 SUPREME COURT REPORTS [2019] 7 S.C.R.

A said, violates article 14 of the Constitution. If this contention had
any validity, there could be no incremental scales of pay fixed
dependent on the duration of an officer’s service. The abstract
doctrine of equal pay for equal work has nothing to do with article
14. The contention that article 14 of the constitution has been
violated therefore also fails.”
B
61. Almost 20 years later, the doctrine of ‘equal pay for equal
work’ was accepted by this Court in Randhir Singh vs. Union of
India and others31. A Bench of three Judges stated that though the
principle of ‘equal pay for equal work’ had not expressly been declared
by the Constitution to be a Fundamental Right, it was certainly a
C constitutional goal. The discussion was as under:-
“7. Our attention was drawn to Binoy Kumar Mukerjee v. Union
of India ILR (1973) 1 Del 427 and Makhan Singh v. Union of
India ILR (1975) 1 Del 227, where reference was made to the
observations of this Court in Kishori Mohanlal Bakshi v. Union
D of India AIR 1962 SC 1139 describing the principle of “equal pay
for equal work” as an abstract doctrine which had nothing to do
with Article 14. We shall presently point out how the principle,
“equal pay for equal work”, is not an abstract doctrine but one of
substance. Kishori Mohanlal Bakshi v. Union of lndia AIR
E 1962 SC 1139 is not itself of any real assistance to us since what
was decided there was that there could be different scales of pay
for different grades of a service. It is well known that there can
be and there are different grades in a service, with varying
qualifications for entry into a particular grade, the higher grade
often being a promotional avenue for officers of the lower grade.
F The higher qualifications for the higher grade, which may be either
academic qualifications or experience based on length of service,
reasonably sustain the classification of the officers into two grades
with different scales of pay. The principle of “equal pay for equal
work” would be an abstract doctrine not attracting Article 14 if
G sought to be applied to them.
8. It is true that the principle of “equal pay for equal work” is not
expressly declared by our Constitution to be a fundamental right.
But it certainly is a constitutional goal. Article 39(d) of the
Constitution proclaims “equal pay for equal work for both men
H and women” as a directive principle of State Policy. “Equal pay
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 825
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

for equal work for both men and women” means equal pay for A
equal work for everyone and as between the sexes. directive
principles, as has been pointed out in some of the judgments of
this Court have to be read into the fundamental rights as a matter
of interpretation. Article 14 of the Constitution enjoins the State
not to deny any person equality before the law or the equal
B
protection of the laws and Article 16 declares that there shall be
equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State. These
equality clauses of the Constitution must mean something to
everyone. To the vast majority of the people the equality clauses
of the Constitution would mean nothing if they are unconcerned C
with the work they do and the pay they get. To them the equality
clauses will have some substance if equal work means equal pay.
Whether the special procedure prescribed by a statute for trying
alleged robber-barons and smuggler kings or for dealing with tax
evaders is discriminatory, whether a particular governmental policy
D
in the matter of grant of licences or permits confers unfettered
discretion on the Executive, whether the take-over of the empires
of industrial tycoons is arbitrary and unconstitutional and other
questions of like nature, leave the millions of people of this country
untouched. Questions concerning wages and the like, mundane
they may be, are yet matters of vital concern to them and it is E
there, if at all that the equality clauses of the Constitution have
any significance to them. The Preamble to the Constitution declares
the solemn resolution of the people of India to constitute India into
a Sovereign Socialist Democratic Republic. Again the word
“socialist” must mean something. Even if it does not mean ‘to
F
each according to his need’, it must at least mean “equal pay for
equal work”. “The principle of “equal pay for equal work” is
expressly recognized by all socialist systems of law, e.g., Section
59 of the Hungarian Labour Code, para 2 of Section 111 of the
Czechoslovak Code, Section 67 of the Bulgarian Code, Section
40 of the Code of the German Democratic Republic, para 2 of G
Section 33 of the Rumanian Code. Indeed this principle has been
incorporated in several western Labour Codes too. Under
provisions in Section 31 (g. No. 2d) of Book I of the French Code
du Travail, and according to Argentinian law, this principle must
be applied to female workers in all collective bargaining
H
826 SUPREME COURT REPORTS [2019] 7 S.C.R.

A agreements. In accordance with Section 3 of the Grundgesetz of
the German Federal Republic, and Clause 7, Section 123 of the
Mexican Constitution, the principle is given universal significance”
(vide International Labour Law by Istvan Szaszy, p. 265). The
Preamble to the Constitution of the International Labour
Organisation recognises the principle of ‘equal remuneration for
B
work of equal value’ as constituting one of the means of achieving
the improvement of conditions “involving such injustice, hardship
and privation to large numbers of people as to produce unrest so
great that the peace and harmony of the world are imperilled”.
Construing Articles 14 and 16 in the light of the Preamble and
C Article 39 (d), we are of the view that the principle “equal pay for
equal work” is deducible from those Articles and may be properly
applied to cases of unequal scales of pay based on no classification
or irrational classification though those drawing the different scales
of pay do identical work under the same employer.
D 9. There cannot be the slightest doubt that the drivers in the Delhi
Police Force perform the same functions and duties as other drivers
in service of the Delhi Administration and the Central Government.
If anything, by reason of their investiture with the “powers,
functions and privileges of a police officer”, their duties and
responsibilities are more arduous. In answer to the allegation in
E the petition that the driver-constables of the Delhi Police Force
perform no less arduous duties than drivers in other departments,
it was admitted by the respondents in their counter that the duties
of the driver-constables of the Delhi Police Force were onerous.
What then is the reason for giving them a lower scale of pay than
F others? There is none. The only answer of the respondents is that
the drivers of the Delhi Police Force and the other drivers belong
to different departments and that the principle of “equal pay for
equal work” is not a principle which the courts may recognise
and act upon. We have shown that the answer is unsound. The
clarification is irrational. We, therefore, allow the writ petition and
G direct the respondents to fix the scale of pay of the petitioner and
the driver-constables of the Delhi Police Force at least on a par
with that of the drivers of the Railway Protection Force. The
scale of pay shall be effective from January 1, 1973, the date
from which the recommendations of the Pay Commission were
H given effect.”
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 827
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

62. Post Randhir Singh31, there have been number of decisions A
rendered by this Court and instead of looking into and considering every
single decision on the point, we may consider those decisions which
themselves had taken into account all the earlier decisions and then
considered if there are any limitations or qualifications to the doctrine of
‘equal pay for equal work’.
B
63. In State of Haryana and others vs. Charanjit Singh and
others4 a Bench of three Judges of this Court, speaking through Variava,
J. observed as under:-
“19. Having considered the authorities and the submissions we
are of the view that the authorities in the cases of Jasmer Singh C
(1996) 11 SCC 77, Tilak Raj (2003) 6 SCC 123, Orissa
University of Agriculture & Technology (2003) 5 SCC 188 and
Tarun K. Roy (2004) 1 SCC 347 lay down the correct law.
Undoubtedly, the doctrine of “equal pay for equal work” is not an
abstract doctrine and is capable of being enforced in a court of
law. But equal pay must be for equal work of equal value. The D
principle of “equal pay for equal work” has no mechanical
application in every case. Article 14 permits reasonable
classification based on qualities or characteristics of persons
recruited and grouped together, as against those who were left
out. Of course, the qualities or characteristics must have a E
reasonable relation to the object sought to be achieved. In service
matters, merit or experience can be a proper basis for classification
for the purposes of pay in order to promote efficiency in
administration. A higher pay scale to avoid stagnation or resultant
frustration for lack of promotional avenues is also an acceptable
reason for pay differentiation. The very fact that the person has F
not gone through the process of recruitment may itself, in certain
cases, make a difference. If the educational qualifications are
different, then also the doctrine may have no application. Even
though persons may do the same work, their quality of work may
differ. Where persons are selected by a Selection Committee on G
the basis of merit with due regard to seniority a higher pay scale
granted to such persons who are evaluated by the competent
authority cannot be challenged. A classification based on difference
in educational qualifications justifies a difference in pay scales. A
mere nomenclature designating a person as say a carpenter or a
H
828 SUPREME COURT REPORTS [2019] 7 S.C.R.

A craftsman is not enough to come to the conclusion that he is doing
the same work as another carpenter or craftsman in regular
service. The quality of work which is produced may be different
and even the nature of work assigned may be different. It is not
just a comparison of physical activity. The application of the
principle of “equal pay for equal work” requires consideration of
B
various dimensions of a given job. The accuracy required and the
dexterity that the job may entail may differ from job to job. It
cannot be judged by the mere volume of work. There may be
qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities make a
C difference. 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. Normally
a party claiming equal pay for equal work should be required to
raise a dispute in this regard. In any event, the party who claims
equal pay for equal work has to make necessary averments and
D
prove that all things are equal. Thus, before any direction can be
issued by a court, the court must first see that there are necessary
averments and there is a proof. If the High Court is, on basis of
material placed before it, convinced that there was equal work of
equal quality and all other relevant factors are fulfilled it may
E direct payment of equal pay from the date of the filing of the
respective writ petition. In all these cases, we find that the High
Court has blindly proceeded on the basis that the doctrine of equal
pay for equal work applies without examining any relevant factors.”
64. In SC Chandra and others vs. State of Jharkhand and
F others11 Markandey Katju, J. in his concurring opinion observed as
under:-
“33. It may be mentioned that 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
G problems for the Government and authorities. Hence, the court
should exercise judicial restraint and not interfere in such executive
function vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen
(2007)1 SCC 408.
… … …
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STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 829
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

35. In our opinion fixing pay scales by courts by applying the A
principle of equal pay for equal work upsets the high constitutional
principle of separation of powers between the three organs of the
State. Realising this, this Court has in recent years avoided applying
the principle of equal pay for equal work, unless there is complete
and wholesale identity between the two groups (and there too
B
the matter should be sent for examination by an Expert Committee
appointed by the Government instead of the court itself granting
higher pay).
36. It is well settled by the Supreme Court that only because the
nature of work is the same, irrespective of educational qualification,
mode of appointment, experience and other relevant factors, the C
principle of equal pay for equal work cannot apply vide Govt. of
W.B. v. Tarun K. Roy (2004) 1 SCC 347.
37. Similarly, in State of Haryana v. Haryana Civil Secretariat
Personal Staff Assn. (2002) 6 SCC 72the principle of equal pay
for equal work was considered in great detail. In paras 9 and 10 D
of the said judgment the Supreme Court observed that equation
of posts and salary is a complex matter which should be left
to an expert body. The courts must realise that the job is both a
difficult and time consuming task which even experts having the
assistance of staff with requisite expertise have found it difficult E
to undertake. Fixation of pay and determination of parity is a
complex matter which is for the executive to discharge. Granting
of pay parity by the court may result in a cascading effect and
reaction which can have adverse consequences vide Union of
India v. Pradip Kumar Dey (2000) 8 SCC 580.”
F
65. In Official Liquidator vs. Dayanand and others12 Singhvi,
J. speaking for a Bench of three Judges observed as under:-
“94. The principle of equal pay for equal work for men and women
embodied in Article 39(d) was first considered in Kishori
Mohanlal Bakshi v. Union of India AIR 1962 SC 1139 and it G
was held that the said principle is not capable of being enforced in
a court of law. After 36 years, the issue was again considered in
Randhir Singh v. Union of India (1982) 1 SCC 618, and it was
unequivocally ruled that the principle of equal pay for equal work
is not an abstract doctrine and can be enforced by reading it into
H
830 SUPREME COURT REPORTS [2019] 7 S.C.R.

A the doctrine of equality enshrined in Articles 14 and 16 of the
Constitution of India.
95. The ratio of Randhir Singh v. Union of India (1982) 1 SCC
618 was reiterated and applied in several cases—Dhirendra
Chamoli v. State of U.P. (1986) 1 SCC 637, Surinder Singh v.
B CPWD (1986) 1 SCC 639, Daily Rated Casual Labour v. Union
of India (1988) 1 SCC 122, Dharwad Distt. PWD Literate Daily
Wage Employees Assn. v. State of Karnataka (1990)2 SCC 396
and Jaipal v. State of Haryana (1988) 3 SCC 354 and it was
held that even a daily-wage employee who is performing duties
similar to regular employees is entitled to the same pay. However,
C in Federation of All India Customs and Central Excise
Stenographers v. Union of India (1988) 3 SCC 91, Mewa Ram
Kanojia v. AIIMS (1989)2 SCC 235, V. Markendeya v. State of
A.P (1989) 3 SCC 191, Harbans Lal v. State of H.P.(1989) 4
SCC 459, State of U.P. v. J.P. Chaurasia (1989) 1 SCC 121,
D Grih Kalyan Kendra Workers’ Union v. Union of India(1991)1
SCC 619, GDA v. Vikram Chaudhary(1995) 5 SCC 210, State of
Haryana v. Jasmer Singh (1996) 11 SCC 77, State of Haryana
v. Surinder Kumar (1997) 3 SCC 633, Union of India v. K.V.
Baby (1998) 9 SCC 252, State of Orissa v. Balaram Sahu (2003)
1 SCC 250, Utkal University v. Jyotirmayee Nayak (2003) 4
E SCC 760 , State of Haryana v. Tilak Raj (2003) 6 SCC 123,
Union of India v. Tarit Ranjan Das (2003) 11 SCC 658 ,
Apangshu Mohan Lodh v. State of Tripura (2004) 1 SCC 119,
State of Haryana v. Charanjit Singh (2006) 9 SCC 321,
Hindustan Aeronautics Ltd. v. Dan Bahadur Singh (2007) 6
F SCC 207, Kendriya Vidyalaya Sangathan v. L.V.
Subramanyeswara (2007) 5 SCC 326 and Canteen Mazdoor
Sabha v. Metallurgical & Engg. Consultants (India) Ltd. (2007)
7 SCC 710, the Court consciously and repeatedly deviated from
the ruling of Randhir Singh v. Union of India (1982) 1 SCC
618 and held that similarity in the designation or quantum of work
G are not determinative of equality in the matter of pay scales and
that 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, the
qualifications, the nature of work, the value judgment,
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 831
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

responsibilities, reliability, experience, confidentiality, functional A
need, etc.
… … …
99. In Canteen Mazdoor Sabha v. Metallurgical & Engg.
Consultants (India) Ltd (2007) 7 SCC 710 another two-Judge
Bench held that simply because some employees of a contractor B
of the alleged head employer are performing the task or duties
similar to the employees of the head employer, it will not entitle
such employees to claim parity.
100. As mentioned earlier, the respondents were employed/
engaged by the Official Liquidators pursuant to the sanction C
accorded by the Court under Rule 308 of the 1959 Rules and they
are paid salaries and allowances from the company fund. They
were neither appointed against sanctioned posts nor were they
paid out from the Consolidated Fund of India. Therefore, the mere
fact that they were doing work similar to the regular employees D
of the Offices of the Official Liquidators cannot be treated as
sufficient for applying the principle of equal pay for equal work.
Any such direction will compel the Government to sanction
additional posts in the Offices of the Official Liquidators so as to
facilitate payment of salaries and allowances to the company-
paid staff in the regular pay scale from the Consolidated Fund of E
India and in view of our finding that the policy decision taken by
the Government of India to reduce the number of posts meant for
direct recruitment does not suffer from any legal or constitutional
infirmity, it is not possible to entertain the plea of the respondents
for payment of salaries and allowances in the regular pay scales F
and other monetary benefits on a par with regular employees by
applying the principle of equal pay for equal work.”
66. In State of Punjab and another vs. Surjit Singh and
others13 Sinha, J. considered all the relevant decisions on the point and
stated as under:- G
“8. Before us, the learned counsel urged that on analysis of the
decisions rendered by this Court, the following legal positions
emerge. We would deal with them in seriatim and as put forward
by the learned counsel:
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832 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (1) Mode and manner of selection can be a ground of
classification. In S.C. Chandra v. State of Jharkhand(2007)
8 SCC 279 it has been held: (SCC pp. 290-91, paras 27 & 30)
“27. Thus, in State of Haryana v. Tilak Raj(2003) 6 SCC
123 it was held that the principle can only apply if there is
B complete and wholesale identity between the two groups.
Even if the employees in the two groups are doing identical
work they cannot be granted equal pay if there is no
complete and wholesale identity e.g. a daily-rated employee
may be doing the same work as a regular employee, yet he
cannot be granted the same pay scale. Similarly, two groups of
C employees may be doing the same work, yet they may be given
different pay scales if the educational qualifications are different.
Also, pay scale can be different if the nature of jobs,
responsibilities, experience, method of recruitment, etc. are
different.
D * * *
30. In State of U.P. v. Ministerial Karamchari Sangh (1998)
1 SCC 422 the Supreme Court observed that even if persons
holding the same post are performing similar work but if
the mode of recruitment, qualification, promotion, etc. are
E different it would be sufficient for fixing different pay scale.
Where the mode of recruitment, qualification and promotion
are totally different in the two categories of posts, there cannot
be any application of the principle of equal pay for equal work.”
(emphasis in original)
F
In a given case, mode of selection may be considered as one
of the factors which may make a difference. (See State of
Haryana v. Charanjit Singh(2006) 9 SCC 321, SCC para
15.)
(2) A daily wager working for a long time should be granted
G
pay on the basis of the minimum of a pay scale. Reliance in
this behalf has been placed on State of Karnataka v. Umadevi
(3)(2006) 4 SCC 1. It was furthermore urged that this Court
should follow the principle laid down by the Constitution Bench
in Umadevi as such a relief had been granted by it in respect
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 833
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

of daily wagers of the Commercial Taxes Department. The A
learned counsel submitted that this Court lately, although made
a distinction between a direction to regularise the employees
who had been working for some time, but keeping in view the
constitutional mandate contained in Article 39-A of the
Constitution of India directed grant of a salary on a scale of
B
pay, particularly in cases where the conduct of the State had
been found to be unreasonable, unjust and prejudiced.
… … …
17. We must also place on record the fact that in different phases
of development of law by this Court, relying on or on the basis of C
the said principle, a clear cleavage of opinion has emerged.
Whereas in the 1970s and 1980s, this Court liberally applied the
said principle without insisting on clear pleadings or proof that the
persons similarly situated with others are equal in all respects; of
late also; this Court has been speaking in different voices as would
be evident from the following. This has been noticed specifically D
by a Division Bench of this Court in S.C. Chandra v. State of
Jharkhand(2007) 8 SCC 279, wherein it was held: (SCC p.
289, para 21)
“21. Learned counsel for the appellants have relied on Article
39(d) of the Constitution. Article 39(d) does not mean that all E
the teachers working in the school should be equated with the
clerks in BCCL or the Government of Jharkhand for application
of the principle of equal pay for equal work. There should be
total identity between both groups i.e. the teachers of the school
on the one hand and the clerks in BCCL, and as such the F
teachers cannot be equated with the clerks of the State
Government or of BCCL. The question of application of Article
39(d) of the Constitution has recently been interpreted by this
Court in State of Haryana v. Charanjit Singh(2006) 9 SCC
321 wherein Their Lordships have put the entire controversy
to rest and held that the principle, ‘equal pay for equal work’ G
must satisfy the test that the incumbents are performing equal
and identical work as discharged by employees against whom
the equal pay is claimed. Their Lordships have reviewed all
the cases bearing on the subject and after a detailed discussion
have finally put the controversy to rest that the persons who H
834 SUPREME COURT REPORTS [2019] 7 S.C.R.

A claimed the parity should satisfy the court that the conditions
are identical and equal and same duties are being discharged
by them. Though a number of cases were cited for our
consideration but no useful purpose will be served as in
Charanjit Singh(2006) 9 SCC 321 all these cases have been
reviewed by this Court. More so, when we have already held
B
that the appellants are not the employees of BCCL, there is no
question seeking any parity of pay with that of the clerks of
BCCL.”
18. Katju, J. in his separate but concurrent judgment opined as
under: (S.C. Chandra case (2007) 8 SCC 279, SCC pp. 290 &
C 293-94, paras 26 & 35)
“26. Fixation of pay scale is a delicate mechanism which
requires various considerations including financial capacity,
responsibility, educational qualification, mode of appointment,
etc. and it has a cascading effect. Hence, in subsequent
D decisions of this Court the principle of equal pay for equal
work has been considerably watered down, and it has hardly
ever been applied by this Court in recent years.
* * *

E 35. In our opinion fixing pay scales by courts by applying the
principle of equal pay for equal work upsets the high
constitutional principle of separation of powers between the
three organs of the State. Realising this, this Court has in recent
years avoided applying the principle of equal pay for equal
work, unless there is complete and wholesale identity
F between the two groups (and there too the matter should be
sent for examination by an expert committee appointed by the
Government instead of the court itself granting higher pay).”
19. The Bench in S.C. Chandra case (2007) 8 SCC 279 in
arriving at the said finding specifically relied upon a three-Judge
G Bench decision of this Court in Charanjit Singh(2006) 9 SCC
321, wherein it was held: (Charanjit Singh case, SCC pp. 329-
30 & 334-36, paras 9, 17, 19 & 22)
“9. In State of Haryana v. Tilak Raj(2003) 6 SCC 123 it
has been held that the principle of equal pay for equal work is
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 835
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

not always easy to apply. It has been held that there are inherent A
difficulties in comparing and evaluating the work of different
persons in different organisations or even in the same
organisation. It has been held that this is a concept which
requires, for its applicability, complete and wholesale identity
between a group of employees claiming identical pay scales
B
and the other group of employees who have already earned
such pay scales. It has been held that the problem about equal
pay cannot be translated into a mathematical formula. It was
further held as follows: (SCC p. 127, para 11)
‘11. A scale of pay is attached to a definite post and in case of
a daily wager, he holds no posts. The respondent workers cannot C
be held to hold any posts to claim even any comparison with
the regular and permanent staff for any or all purposes including
a claim for equal pay and allowances. To claim a relief on the
basis of equality, it is for the claimants to substantiate a clear-
cut basis of equivalence and a resultant hostile discrimination D
before becoming eligible to claim rights on a par with the other
group vis-à-vis an alleged discrimination. No material was
placed before the High Court as to the nature of the duties of
either categories and it is not possible to hold that the principle
of “equal pay for equal work” is an abstract one.’
E
* * *
17. In Bhagwan Dass v. State of Haryana(1987) 4 SCC
634 this Court held that if the duties and functions of the
temporary appointees and regular employees are similar, there
cannot be discrimination in pay merely on the ground of F
difference in modes of selection. It was held that the burden
of proving similarity in the nature of work was on the aggrieved
worker. We are unable to agree with the view that there cannot
be discrimination in pay on the ground of differences in modes
of selection. As has been correctly laid down in Jasmer Singh
case (1996) 11 SCC 77 persons selected by a Selection G
Committee on the basis of merit with due regard to seniority
can be granted a higher pay scale as they have been evaluated
by the competent authority and in such cases payment of a
higher pay scale cannot be challenged. Jasmer Singh case
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836 SUPREME COURT REPORTS [2019] 7 S.C.R.

A has been noted with approval in Tarun K. Roy case (2004) 1
SC 347.
19. Having considered the authorities and the submissions we
are of the view that the authorities in Jasmer Singh (1996) 1
SC 77, Tilak Raj (2003) 6 SCC 123, Orissa University of
B Agriculture & Technology (2003) 5 SCC 188 and Tarun K.
Roy (2004) 1 SCC 347 lay down the correct law. Undoubtedly,
the doctrine of ‘equal pay for equal work’ is not an abstract
doctrine and is capable of being enforced in a court of law.
But equal pay must be for equal work of equal value. The
principle of ‘equal pay for equal work’ has no mechanical
C application in every case. Article 14 permits reasonable
classification based on qualities or characteristics of persons
recruited and grouped together, as against those who were left
out. Of course, the qualities or characteristics must have a
reasonable relation to the object sought to be achieved. In
D service matters, merit or experience can be a proper basis for
classification for the purposes of pay in order to promote
efficiency in administration. A higher pay scale to avoid
stagnation or resultant frustration for lack of promotional
avenues is also an acceptable reason for pay differentiation.
The very fact that the person has not gone through the process
E of recruitment may itself, in certain cases, make a difference.
If the educational qualifications are different, then also the
doctrine may have no application. Even though persons may
do the same work, their quality of work may differ. Where
persons are selected by a Selection Committee on the basis of
F merit with due regard to seniority a higher pay scale granted to
such persons who are evaluated by the competent authority
cannot be challenged. A classification based on difference in
educational qualifications justifies a difference in pay scales.
A mere nomenclature designating a person as say a carpenter
or a craftsman is not enough to come to the conclusion that he
G is doing the same work as another carpenter or craftsman in
regular service. The quality of work which is produced may
be different and even the nature of work assigned may be
different. It is not just a comparison of physical activity. The
application of the principle of ‘equal pay for equal work’ requires
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 837
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

consideration of various dimensions of a given job. The accuracy A
required and the dexterity that the job may entail may differ
from job to job. It cannot be judged by the mere volume of
work. There may be qualitative difference as regards reliability
and responsibility. Functions may be the same but the
responsibilities make a difference. Thus normally the
B
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. Normally a party claiming equal
pay for equal work should be required to raise a dispute in this
regard. In any event, the party who claims equal pay for equal
work has to make necessary averments and prove that all things C
are equal. Thus, before any direction can be issued by a court,
the court must first see that there are necessary averments
and there is a proof. If the High Court is, on basis of material
placed before it, convinced that there was equal work of equal
quality and all other relevant factors are fulfilled it may direct
D
payment of equal pay from the date of the filing of the
respective writ petition. In all these cases, we find that the
High Court has blindly proceeded on the basis that the doctrine
of equal pay for equal work applies without examining any
relevant factors.
* * * E

22. One other fact which must be noted is that Civil Appeals
Nos. 6648, 6647, 6572 and 6570 of 2002 do not deal with casual
or daily-rated workers. These are cases of persons employed
on contract. To such persons the principle of equal pay for
equal work has no application. The Full Bench judgment dealt F
only with daily-rated and casual workers. Where a person is
employed under a contract, it is the contract which will govern
the terms and conditions of service. In State of Haryana v.
Surinder Kumar(1997) 3 SCC 633 persons employed on
contract basis claimed equal pay as regular workers on the G
footing that their posts were interchangeable. It was held that
these persons had no right to the regular posts until they are
duly selected and appointed. It was held that they were not
entitled to the same pay as regular employees by claiming that
they are discharging the same duties. It was held that the very
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838 SUPREME COURT REPORTS [2019] 7 S.C.R.

A object of selection is to test the eligibility and then to make
appointment in accordance with the rules. It was held that the
respondents had not been recruited in accordance with the
rules prescribed for recruitment.”
… … …
B 24. It is no longer in doubt or dispute that grant of the benefit of
the doctrine of “equal pay for equal work” depends upon a large
number of factors including equal work, equal value, source and
manner of appointment, equal identity of group and wholesale or
complete identity. This Court, even recently, in Union of India v.
C Mahajabeen Akhtar (2008) 1 SCC 368, categorically held as
under: (SCC pp. 376-77, paras 19 & 24)
“19. The question came to be considered in a large number of
decisions of this Court wherein it unhesitatingly came to the
conclusion that a large number of factors, namely, educational
D qualifications, nature of duty, nature of responsibility, nature of
method of recruitment, etc. will be relevant for determining
equivalence in the matter of fixation of scale of pay. (See
Finance Deptt. v. W.B. Registration Service Assn.1993 Supp
(1) SCC 153, State of U.P. v. J.P. Chaurasia (1989) 1 SCC
121, Union of India v. Pradip Kumar Dey (2000)8 SCC
E 580 and State of Haryana v. Haryana Civil Secretariat
Personal Staff Assn. (2002) 6 SCC 72)
* * *
24. On the facts obtaining in this case, therefore, we are of
F the opinion that the doctrine of equal pay for equal work has
no application. The matter may have been different, had the
scales of pay been determined on the basis of educational
qualification, nature of duties and other relevant factors. We
are also not oblivious of the fact that ordinarily the scales of
pay of employees working in different departments should be
G treated to be on a par and the same scale of pay shall be
recommended. The respondent did not opt for her services to
be placed on deputation. She opted to stay in the government
service as a surplus. She was placed in list as Librarian in
National Gallery of Modern Art. She was designated as
Assistant Librarian and Information Assistant. Her pay scale
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 839
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

was determined at Rs 6500-10,500 which was the revised scale A
of pay. Her case has admittedly not been considered by the
Fifth Pay Revision Commission. If a scale of pay in a higher
category has been refixed keeping in view the educational
qualifications and other relevant factors by an expert body, no
exception thereto can be taken. Concededly it was for the
B
Union of India to assign good reasons for placing her in a
different scale of pay. It has been done. We have noticed
hereinbefore that not only the essential educational
qualifications are different but the nature of duties is also
different. Article 39(d) as also Article 14 of the Constitution of
India must be applied, inter alia, on the premise that equality C
clause should be invoked in respect of the people who are
similarly situated in all respects.”
How the said principle is to be applied in different fact situation
is the only question. Whereas this Court refused to apply the
said principle as the petitioners therein did not have the requisite D
qualification; in Union of India v. Dineshan K.K (2008) 1
SCC 586, the application of the rule was advocated to be left
to an expert body, stating: (Dineshan K.K. case) SCC pp.
592-93, para 16)
“16. Yet again in a recent decision in State of Haryana v. E
Charanjit Singh(2006) 9 SCC 321 a Bench of three
learned Judges, while affirming the view taken by this Court
in State of Haryana v. Jasmer Singh (1996) 11 SCC 77,
Tilak Raj (2003) 6 SCC 123, Orissa University of
Agriculture & Technology v. Manoj K. Mohanty (2003)
5 SCC 188 and Govt. of W.B. v. Tarun K. Roy (2004) 1 F
SCC 347 has reiterated that the doctrine of equal pay for
equal work is not an abstract doctrine and is capable of
being enforced in a court of law. Inter alia, observing that
equal pay must be for equal work of equal value and that
the principle of equal pay for equal work has no mathematical G
application in every case, it has been held that Article 14
permits reasonable classification based on qualities or
characteristics of persons recruited and grouped together,
as against those who are left out. Of course, the qualities
or characteristics must have a reasonable relation to the
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840 SUPREME COURT REPORTS [2019] 7 S.C.R.

A object sought to be achieved. Enumerating a number of
factors which may not warrant application of the principle
of equal pay for equal work, it has been held that since the
said principle requires consideration of various dimensions
of a given job, normally the applicability of this principle
must be left to be evaluated and determined by an expert
B
body and the court should not interfere till it is satisfied that
the necessary material on the basis whereof the claim is
made is available on record with necessary proof and that
there is equal work of equal quality and all other relevant
factors are fulfilled.”
C 25. It may be that in Charanjit Singh (2006) 9 SCC 321, Variava,
J., speaking for the three-Judge Bench, has used the word “may”
in regard to the source of recruitment but the same has to be
considered as a relevant factor as the operative part of the judgment
shows. Charanjit Singh, therefore, does not militate against the
D other decisions of this Court where the mode and manner of
appointment has been considered to be a relevant factor for the
purpose of invocation of the said doctrine. We are bound by the
aforementioned three-Judge Bench decision.”
67. In Steel Authority of India Limited and others vs. Dibyendu
E Bhattacharya14 Dr. Chauhan, J. stated:
“23. This Court while deciding a similar issue in State of W.B. v.
W.B. Minimum Wages Inspectors Assn. (2010) 5 SCC 225,
held as under: (SCC p. 232, paras 18-20)
“18. … The evaluation of duties and responsibilities of different
F posts and determination of the pay scales applicable to such
posts and determination of parity in duties and responsibilities
are complex executive functions, to be carried out by expert
bodies. Granting parity in pay scale depends upon comparative
job evaluation and equation of posts.
G 19. The principle ‘equal pay for equal work’ is not a
fundamental right but a constitutional goal. It is dependent on
various factors such as educational qualifications, nature of
the jobs, duties to be performed, responsibilities to be discharged,
experience, method of recruitment, etc. Comparison merely
based on designation of posts is misconceived. Courts should
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 841
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

approach such matters with restraint and interfere only if A
they are satisfied that the decision of the Government is
patently irrational, unjust and prejudicial to any particular
section of employees.
20. The burden to prove disparity is on the employees claiming
parity….” B
… … …
30. In view of the above, the law on the issue can be summarised
to the effect that parity of pay can be claimed by invoking the
provisions of Articles 14 and 39(d) of the Constitution of India by
establishing that the eligibility, mode of selection/recruitment, C
nature and quality of work and duties and effort, reliability,
confidentiality, dexterity, functional need and responsibilities and
status of both the posts are identical. The functions may be the
same but the skills and responsibilities may be really and
substantially different. The other post may not require any higher D
qualification, seniority or other like factors. Granting parity in pay
scales depends upon the comparative evaluation of job and equation
of posts. The person claiming parity, must plead necessary
averments and prove that all things are equal between the posts
concerned. Such a complex issue cannot be adjudicated by
evaluating the affidavits filed by the parties. E

31. The onus to establish the discrimination by the employer lies
on the person claiming the parity of pay. The Expert Committee
has to decide such issues, as the fixation of pay scales, etc. falls
within the exclusive domain of the executive. So long as the value
judgment of those who are responsible for administration i.e. F
service conditions, etc. is found to be bona fide, reasonable, and
on intelligible criteria which has a rational nexus of objective of
differentiation, such differentiation will not amount to
discrimination. It is not prohibited in law to have two grades of
posts in the same cadre. Thus, the nomenclature of a post may G
not be the sole determinative factor. The courts in exercise of
their limited power of judicial review can only examine whether
the decision of the State authorities is rational and just or prejudicial
to a particular set of employees. The court has to keep in mind
that a mere difference in service conditions does not amount to
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842 SUPREME COURT REPORTS [2019] 7 S.C.R.

A discrimination. Unless there is complete and wholesale/wholesome
identity between the two posts they should not be treated as
equivalent and the court should avoid applying the principle of
equal pay for equal work”.
68. Analysis of the decisions referred to above shows that this
B 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
C 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’
D 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
E 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 left to an expert body.
F 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
G appointment.
x) In a given case, mode of selection may be considered as one
of the factors which may make a difference.
69. The latest decision on which heavy reliance was placed on
behalf of Niyojit Teachers is the one rendered by a Bench of two Judges
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 843
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

in State of Punjab and others vs. Jagjit Singh and others2. The A
issues that arose for consideration were set out in para 5 as under:-
“5. The issue which arises for our consideration is: whether
temporarily engaged employees (daily-wage employees, ad hoc
appointees, employees appointed on casual basis, contractual
employees and the like), are entitled to minimum of the regular B
pay scale, along with dearness allowance (as revised from time
to time) on account of their performing the same duties which are
discharged by those engaged on regular basis, against sanctioned
posts? The Full Bench (Avtar Singh vs. State of Punjab, 2011
SCC Online P & H 15326) of the High Court, while adjudicating
upon the above controversy had concluded, that such like C
temporary employees were not entitled to the minimum of the
regular pay scale, merely for reason, that the activities carried on
by daily wagers and the regular employees were similar. However,
it carved out two exceptions, and extended the minimum of the
regular pay to such employees. The exceptions recorded by the D
Full Bench of the High Court in the impugned judgment are
extracted hereunder: (Avtar Singh case, SCC OnLine P&H para
37)
“(1) A daily wager, ad hoc or contractual appointee against the
regular sanctioned posts, if appointed after undergoing a E
selection process based upon fairness and equality of
opportunity to all other eligible candidates, shall be entitled to
minimum of the regular pay scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are
not appointed against regular sanctioned posts and their services F
are availed continuously, with notional breaks, by the State
Government or its instrumentalities for a sufficient long period
i.e. for 10 years, such daily wagers, ad hoc or contractual
appointees shall be entitled to minimum of the regular pay scale
without any allowances on the assumption that work of
perennial nature is available and having worked for such long G
period of time, an equitable right is created in such category of
persons. Their claim for regularisation, if any, may have to be
considered separately in terms of legally permissible scheme.
(3) In the event, a claim is made for minimum pay scale after
more than three years and two months of completion of 10 H
844 SUPREME COURT REPORTS [2019] 7 S.C.R.

A years of continuous working, a daily wager, ad hoc or contractual
employee shall be entitled to arrears for a period of three years
and two months.”
70. While considering the aforesaid issue this Court had noted all
the decisions on the point of pay parity from Randhir Singh vs. Union
B of India31 and then in para 42 arrived at conclusions. The limitations or
qualifications to the application of doctrine of ‘equal pay for equal work’
were also considered in para 42 and from para 43 onwards, Claim for
pay parity raised by temporary employees (differently designated as
work-charge, daily-wage, casual, ad hoc, contractual and the like) was
also considered. After discussion on the point, the matter was concluded
C thus:-
“57. There is no room for any doubt that the principle of “equal
pay for equal work” has emerged from an interpretation of different
provisions of the Constitution. The principle has been expounded
through a large number of judgments rendered by this Court, and
D constitutes law declared by this Court. The same is binding on all
the courts in India under Article 141 of the Constitution of India.
The parameters of the principle have been summarised by us in
para 42 hereinabove. The principle of “equal pay for equal work”
has also been extended to temporary employees (differently
E described as work-charge, daily wage, casual, ad hoc, contractual,
and the like). The legal position, relating to temporary employees
has been summarised by us, in para 44 hereinabove. The above
legal position which has been repeatedly declared, is being
reiterated by us yet again.”

F 71. The qualifications to the applicability of the doctrine of ‘equal
pay for equal work’ which have long been recognised and acknowledged
in the decisions referred to above are well established. The decision in
Jagjit Singh2 again reiterated some of those qualifications. These
limitations or qualifications have not been diluted but stand re-inforced.

G 72. We may, at this stage, deal with the submission advanced on
behalf of the State that the decision in Jagjit Singh did not take into
account the earlier decisions rendered by this Court in State of Punjab
vs. Joginder Singh28 and Zabar Singh vs. The State of Haryana29
and others.

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 845
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

In the first case, Respondent Joginder Singh was working as a A
teacher in a District Board High School in Hoshiarpur before 1.10.1957.
By reason of government decision taken in September, 1957, which came
into effect on 1.10.1957 all teachers like Respondent Joginder Singh,
employed in District Board and Municipal Board Schools, became State
employees. Before such decision was taken, the State had decided to
B
have two categories of teachers working in the State service. 15% of
the total strength of teachers were put in a middle scale of a salary scale
while the rest of 85% were put in a lower scale. The former, thus, had
better chances of promotion to further levels. After taking over the
schools run by District Board and Municipal Boards, which was called
‘provincialization’ the teachers like Respondent Joginder Singh, though C
became State employees, were part of cadre of provincialized teachers
which was distinct from the cadre of State teachers. A decision was
also taken not to make any further appointments in the provincialized
cadre and thus said cadre was to be a dying or vanishing cadre. It was
also decided that the provincialized cadre would stand bifurcated on the
D
same pattern of 15:85 as was done in the State cadre but any retirements
in the provincialized cadre would not result in fresh appointments in that
cadre but the appropriate number would get added to the State cadre
and fresh appointments would be made only in the State cadre. It must
be noted that the employees in both the cadres were given the same
pay-scale but their chances of promotion were completely different. E
The submission that with the passage of time, the strength of provincialized
cadre would keep reducing and as such, the chances of promotion and
being part of 15% group would keep diminishing and as such the
employees in provincialized cadre would be put to prejudice was accepted
by the High Court. It was observed by this Court in State of Punjab
F
vs. Joginder Singh28 as under:-
“22. It now remains to consider a point which was raised that the
State cannot constitute two Services consisting of employees doing
the same work but with different scales of pay or subject to
different conditions of service and that the constitution of such
services would be violative of Article 14. Underlying this submission G
are two postulates: (1) equal work must receive equal pay, and
(2) if there be equality in pay and work there have to be equal
conditions of service. So far as the first proposition is concerned
it has been definitely ruled out by this Court in Kishori Mohanlal
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846 SUPREME COURT REPORTS [2019] 7 S.C.R.

A v. Union of India (1962 SC AIR 1139) Das Gupta, J. speaking
for the Court said:
“The only other contention raised is that there is discrimination
between Class I and Class II officers inasmuch as though they
do the same kind of work their pay scales are different. This,
B it is said, violates Article 14 of the Constitution. If this contention
had any validity, there could be no incremental scales of pay
fixed dependent on the duration of an officer’s service. The
abstract doctrine of equal pay for equal work has nothing to do
with Article 14. The contention that Article 14 of the
Constitution has been violated, therefore, also fails.”
C
The second also, is, in our opinion, unsound. If, for instance, an
existing service is recruited on the basis of a certain qualification,
the creation of another service for doing the same work, it might
be in the same way but with better prospects of promotion cannot
be said to be unconstitutional, and the fact that the rules framed
D permit free transfers of personnel of the two groups to places
held by the other would not make any difference. We are not
basing this answer on any theory that if a government servant
enters into any contract regulating the conditions of his service he
cannot call in aid the constitutional guarantees because he is bound
E by his contract. But this conclusion, rests on different and wider
public grounds viz. that the government which is carrying on the
administration has necessarily to have a choice in the constitution
of the services to man the administration and that the limitations
imposed by the constitution are not such as to preclude the creation
of such services. Besides, there might, for instance, be a temporary
F recruitment to meet an exigency or an emergency which is not
expected to last for any appreciable period of time. To deny to the
Government the power to recruit temporary staff drawing the
same pay and doing the same work as other permanent incumbents
within the cadre strength but governed by different rules and
G conditions of service, it might be including promotions, would be
to impose restraints on the manner of administration which we
believe was not intended by the Constitution. For the purpose of
the decision of this appeal the question here discussed is rather
academic but we are expressing ourselves on it in view of the
arguments addressed to us.
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 847
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

23. Besides the disparity in the chances of promotion between A
teachers of the provincialised and the State Cadre created by
Rule 3 of the impugned rules, the learned Judges of the High
Court have held that there was a further disparity by reason of
the teachers of the State Cadre being borne on a Divisional list,
while under the rules the inter se seniority and promotions of
B
“provincialised” teachers was determined districtwise. It was
pointed out by the learned Solicitor-General for the appellant that
the State Cadre was kept on a Divisional basis because of the
very small number of the members of that Service, whereas it
was found administratively inconvenient to have a similar
geographical classification of members of the provincialised service C
and for that reason and no other, districtwise seniority, promotion
and transfers was laid down for provincialised teachers. Learned
counsel for the respondent did not rely on this reasoning of the
learned Judges of the High Court in deciding the case now under
appeal. We therefore do not consider it necessary to make any
D
further reference to it.
24. As we have stated already, the two services started as
independent Services. The qualifications prescribed for entry into
each were different, the method of recruitment and the machinery
for the same were also different and the general qualifications
possessed by and large by the members of each class being E
different, they started as two distinct classes. If the Government
Order of September 27, 1957 did not integrate them into a single
service, it would follow that the two remained as they started as
two distinct services. If they were distinct services, there was no
question of inter se seniority between members of the two services, F
nor of any comparison between the two in the matter of promotion
for founding an argument based upon Article 14 or Article 16(1).
They started dissimilarly and they continued dissimilarly and any
dissimilarity in their treatment would not be a denial of equal
opportunity, for it is common ground that within each group there
is no denial of that freedom guaranteed by the two articles. The G
foundation therefore of the judgment of the learned Judges of the
High Court that the impugned rules created two classes out of
what was formerly a single class and introduced elements of
discrimination between the two, has no factual basis if, as we
hold the order of September 27, 1957 did not effectuate a complete H
848 SUPREME COURT REPORTS [2019] 7 S.C.R.

A integration of the two Services. On this view it would follow that
the impugned rules cannot be struck down as violative of the
Constitution.
25. Before concluding it is necessary to point out that, as explained
earlier, the source of the prejudice caused by the impugned rules
B to the “provincialised” teachers lies not in the fact that the two
cadres were kept separate but on account of the fact that the
“provincialised” cadre was intended to be gradually extinguished.
The real question for consideration would therefore be whether
there was anything unconstitutional in the Government decision in
the matter. In other words, had the respondent and his class any
C fundamental right to have their cadre strength maintained
undiminished? This is capable of being answered only in the
negative. If their cadre strength became diminished, the proportion
thereof who could be in the grade viz. 15% of the total strength
being predetermined, there must necessarily be a progressive
D reduction in the number of selection posts. In other words a mere
reduction of the cadre strength would bring about that result and
unless the respondent could establish that the Government were
bound in Law to fill up all vacancies in the provincialised cadre by
fresh recruitment to that cadre and thus keep its strength at the
level at which it was on October 1, 1957, he should fail. It is
E manifest that such a contention is obviously untenable.”
73. In the second decision it was contended that the decision of
the Constitution Bench in Joginder Singh’s case required reconsideration
and as such a Bench of seven Judges was constituted which dealt with
the matter in Zabar Singh and others vs. The State of Haryana and
F others29. The discussion in paragraphs 27 to 30, 32 to 33 and 35, 36 and
40 was as under:-
“27. The position which emerges from the aforesaid analysis is
that prior to October 1, 1957, the two categories of teachers, those
serving in the local bodies schools and those in government schools
G were distinct. Though the minimum qualifications and scales of
pay might have been uniform, there were differences in other
matters such as methods of recruitment, retiral benefits, rules for
determining seniority, etc. It is also clear that whereas a
government school teacher was liable to be transferred to any
H place throughout the Commissioner’s division, a local body teacher
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 849
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

could only be transferred within the territorial limits of that body. A
Appointments in Local Bodies schools, no doubt, were made by
Inspectors appointed by government, but they could do so only in
consultation with the Chairman or President of such a body. That
was the position also in regard to disciplinary matters. Further,
although the prescribed minimum qualifications were the same, in
B
point of fact 50% or more of the Local Bodies teachers were
non-matriculates and quite a number of such non-matriculate
teachers were also without the qualification of Basic Training as
against a few non-matriculates and none without such Basic
Training in the Government schools. In any event the mere fact
that minimum qualifications and scales of pay were the same could C
not mean, in view of other dissimilar conditions of service, that
the two categories of teachers formed one class. Indeed, Mr
Tarkunde conceded, as is even otherwise clear, that prior to
October 1, 1957, teachers in local bodies and in government schools
did not form one class.
D
28. So far as the position on October 1, 1957, is concerned, as
already noticed, the Government schools teachers were and
continued to be governed by the Rules of 1955, which, no doubt,
came into force with effect from May 30, 1957 and which
prescribed the minimum qualifications as Matriculation in addition
to Basic Training. Government school teachers who, under the E
1937-Rules, were recruited by the Director of Public Instruction,
were since 1954 selected by the Selection Board after their initial
pay had been raised from Rs 47½ to Rs 50 per month. The Local
Bodies teachers, on the other hand, were recruited by Inspectors
in consultation with the Presidents or Chairmen of those bodies F
till July 1957 when fresh appointments in vacancies falling in those
schools were stopped. Under the new Rules of 1955, Government
provided for a selection grade for 15% posts. In fact, such a grade
was given to them even before 1955-Rules were framed and the
new rules merely continued that benefit. Broadly speaking, the
position on October 1, 1957, was that the two categories of G
teachers formed distinct classes. Though they were performing
similar duties, they could not be said to form one integrated class.
29. The question then is, whether in spite of the Government
school teachers and the provincialised teachers forming two distinct
H
850 SUPREME COURT REPORTS [2019] 7 S.C.R.

A classes on October 1, 1957, they were, during the period between
that date and February 13, 1961, integrated into one class, which
was split up into two cadres by those Rules? It would perhaps
appear from the statement of the Education Minister made at the
Press Conference on the eve of provincialisation that Government
had in the beginning the idea of bringing about integration between
B
the two types of teachers. But no such concrete decision was
ever taken. A few dates at this stage may clarify the position. As
aforesaid, the decision to provincialise the local bodies schools
was taken on July 19, 1957. In pursuance of that decision.
Government on August 2, 1957, placed a ban against any fresh
C recruitment of teachers in the Local Bodies schools. On September
27, 1957, the Governor sanctioned the scheme of provincialisation
and at the same time sanctioned 20,000 and odd new posts to
absorb the existing staff of the provincialised schools.
Simultaneously with the provincialisation, the Government on
October 1, 1957, gave the same scales of pay to the provincialised
D
teachers as were available to government schools teachers. The
problem, however, was how to fix and adjust the provincialised
teachers in government service and fix their inter se seniority as
also their seniority vis-a-vis the government schools teachers.
30. It is fairly clear from the memorandum published along with
E 1961-Rules that Government was seeking to discover a proper
formula to solve these questions. This process was, it appears,
going on since November 23, 1959, when alternative proposals
were framed for discussion and those proposals were
communicated to the recognised associations of the teachers. Since
F no agreed consensus was forthcoming from the teachers
themselves, Government formed its own decisions as formulated
by the Secretary, Education Department in his letter of January
27, 1960, to the Director of Public Instruction. These decisions
were made around three basic principles: (i) that the two cadres
will continue to be separate as before; (ii) that the provincialised
G cadre would be a diminishing cadre; and (iii) following upon (i)
and (ii), vacancies arising as a result of promotions, retirements,
resignations, etc., in the provincialised cadre should be transferred
to the State cadre so that ultimately after about thirty years the
provincialised cadre would vanish altogether leaving the State
H cadre alone in the field. These events leave no doubt that at no
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 851
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

time after October 1, 1957, any decision for integrating the two A
categories of teachers was taken although after October 1, 1957,
new teachers were appointed and posted in both the provincialised
as well as government schools who carried out the same duties
and were given the same scales of pay as the provincialised
teachers. But such new teachers had to be deemed to have been
B
appointed in the State cadre by reason of the two principles decided
upon by the Government, (i) the diminishing character of the
provincialised cadre, and (ii) that cadre having been frozen from
even before October 1, 1957. Thus, the two categories continued
to be separate and were never integrated. The Government schools
teachers and those appointed after October 1, 1957, were governed C
by 1955-Rules while the provincialised teachers continued to be
presumably governed by the District Boards’ Rules until new rules
were framed for them by Government. Thus the Rules of 1961
could not be said to have split up the teachers, who formed one
integrated cadre into two new cadres. These Rules had to be
D
made as the inter-seniority among provincialised teachers
appointed by different local bodies in different districts had to be
determined and their position in the service had to be adjusted.
The Rules were framed on the principles formulated in the decisions
taken by Government on July 27, 1960.
… … … E

32. It will be observed that though the provincialised teachers
were given the same scales of pay as the teachers in the State
cadre, the Rules provided that unlike the latter they could be
transferred only within the District where they were serving.
Those who were already confirmed prior to the provincialisation F
were also deemed to be confirmed under these Rules. That meant
that for purposes of their seniority their entire service, including
service before such confirmation would be taken into account,
except that inter se seniority of those promoted to the selection
grade was to be determined from the date of their confirmation in G
that grade.
33. Thus, although the teachers in both the cadres were given the
same scales of pay and did the same kind of work and those
appointed after October 1, 1957, were posted and worked in the
same provincialised schools as teachers in the provincialised cadre, H
852 SUPREME COURT REPORTS [2019] 7 S.C.R.

A the fact was that the State cadre teachers were and continued to
be governed by 1955-Rules while the provincialised teachers were
governed by 1961-Rules. This fact, coupled with the fact that one
was a district and the other a divisional cadre, meant that the two
cadres continued to be separate cadres as before. The principal
effect of the new Rules, however, was that the number of posts
B
in the cadre would gradually diminish and together with that the
total number of posts in the selection grade, despite the percentage
of fifteen remaining intact. But that was the inevitable result of
the freezing of the cadre, on the one hand, and its being a
diminishing cadre on the other. The State cadre became
C correspondingly an expanding cadre, the total number of posts for
all the schools, Government and provincialised, remaining more
or less constant.
… … …
35. The controversy thus really turns on the question whether
D Government was bound to integrate the two categories of teachers
into one and not to continue them as separate cadres as before,
and whether its refusal to do so meant violation either of Article
14 or Article 16. It is true that notwithstanding this Court upholding
the validity of the 1961-Rules in Punjab v. Joginder, the then
E Government of Punjab in 1965 adopted a uniform running scale
for both the cadres of Rs 60-Rs 175 with a common 15% for
higher grade posts. But that decision has nothing to do with the
question of the validity of 1961-Rules, and if those Rules were
valid, with the validity of the decision of the new State of Haryana
to implement those Rules instead of the common running scale
F adopted by Punjab State.
36. The principles on which discrimination and breach of Articles
14 and 16 can be said to result have been by now so well settled
that we do not think it necessary to repeat them here once again.
As already seen, ever since 1937 and even before, the two
G categories of teachers have always remained distinct, governed
by different sets of rules, recruited by different authorities and
having, otherwise than in the matters of pay-scales and
qualifications, different conditions of service. This position remained
as late as February 13, 1961. On that day whereas the State cadre
H teachers were governed by 1955-Rules, rules had yet to be framed
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 853
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

for the provincialized teachers. The two cadres thus being A
separate, Government was not bound to bring about an integrated
cadre especially in view of its decision of making the provincialized
cadre a diminishing one and bringing about ultimately through that
principle one cadre only in the field in a phased manner. If through
historical reasons the teachers had remained in two separate
B
categories, the classification of the provincialized teachers into a
separate cadre could not be said to infringe Article 14 or Article
16. It was also not incumbent on the Government to frame the
1961-Rules uniformly applicable to both the categories of teachers,
firstly, because a rule-framing authority need not legislate for all
the categories and can select for which category to legislate (See C
Sakhawat Ali v. State of Orissa (1955) 1 SCR 1004 ;
Madhubhai Amathalal Gandhi v. Union of India (1961) 1
SCR 191 and Vivian Joseph Ferreira v. Municipal Corporation
of Greater Bombay (1972) 1 SCC 70) and secondly, because it
had already come to a decision of gradually diminishing the
D
provincialized cadre so that ultimately only the State cadre would
remain in the service. That was one way of solving the intricate
difficulty of inter-seniority. There can be no doubt that if there are
two categories of employees, it is within Government’s power to
recruit in one and not recruit in the other. There is no right in a
government employee to compel it to make fresh appointments in E
the cadre to which he belongs. It cannot also be disputed that
Government had the power to make rules with retrospective effect,
and therefore, could provide therein that appointments made
between October 1, 1957 and February 13, 1961, shall be treated
as appointments in the State cadre. That had to be done for the
F
simple reason that the provincialized cadre was already frozen
even before October 1, 1957 and Government had decided not to
make fresh appointments in that cadre since that cadre was to be
a diminishing one.
… … …
G
40. Regarding Respondents 37 to 96, all of them were appointed
after provincialisation. They are junior in service than the petitioners
and some others in the provincialised cadre. But their case is not
comparable, for, they were appointed under 1955-Rules and
through the recruitment authorities prescribed under those rules
H
854 SUPREME COURT REPORTS [2019] 7 S.C.R.

A i.e. the Selection Board. Obviously, they could not be appointed in
the provincialised cadre as that had been frozen even before
October 1, 1957. They may have been posted in the provincialised
schools but that cannot mean that they were appointed in that
cadre. Their appointment being in a separate cadre, it is impossible
to say that they were similarly situated. By reason of their
B
recruitment in the State cadre, their conditions of service, including
their promotional chances and their seniority would be governed
by 1955-Rules and would only be comparable to those in that
cadre only.”
74. Heavy reliance was placed on the aforesaid decisions by the
C learned Attorney General and the learned counsel who appeared for the
State. It was submitted that though the teachers in provincialized cadre
and the State cadre were doing similar duties and discharging identical
responsibilities and though, they were as a matter of fact drawing similar
pay and emoluments, the services were considered to be distinct and
D different. The feature that one of the cadres was to be a dying or
vanishing cadre was also present in those cases. It was accepted by
this Court that the State was within its Rights to let a particular service
or cadre be a dying or vanishing cadre and keep making appointments in
other service while maintaining distinct identities of both the services,
even when the teachers coming from the both the cadres were doing
E identical jobs. Though, strictly speaking, those two matters did not involve
concept of ‘equal pay for equal work’, these cases do point that the
State can validly make such distinction or differentiation. The learned
Attorney General and the learned counsel appearing for the State were,
therefore, justified in placing reliance on these two decisions. It is also
F evident that the subsequent judgments have not noted the decisions of
this Court in Joginder Singh28 and Zabar Singh29. For the purposes
of present discussion, we will proceed on the basis that even when the
teachers from both the cadres were discharging similar duties and
responsibilities, the decision of the State government to maintain different
identities of these two cadres was not found objectionable by this Court
G and further there could be inter se distinctions between these two cadres.
It is true that both the cadres were enjoying same pay structure but the
submission that the chances of promotion ought to be similar was not
accepted by the Court.

H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 855
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

75. We must also consider observations of this Court in paragraph A
12 in its decision in Secretary, Finance Department and others vs.
West Bengal Registration Service Association and others8, which
bring out how a ‘pay structure’ is evolved. The relevant portion of said
paragraph was:-
12. … … Ordinarily a pay structure is evolved keeping in mind B
several factors, e.g., (i) method of recruitment, (ii) level at which
recruitment is made, (iii) the hierarchy of service in a given cadre,
(iv) minimum educational/technical qualifications required, (v)
avenues of promotion, (vi) the nature of duties and responsibilities,
(vii) the horizontal and vertical relativities with similar jobs, (viii)
public dealings, (ix) satisfaction level, (x) employer’s capacity to C
pay, etc. We have referred to these matters in some detail only to
emphasise that several factors have to be kept in view while
evolving a pay structure and the horizontal and vertical relativities
have to be carefully balanced keeping in mind the hierarchical
arrangements, avenues for promotion, etc. Such a carefully evolved D
pay structure ought not to be ordinarily disturbed as it may upset
the balance and cause avoidable ripples in other cadres as well.
… …”
76. We, therefore, have to proceed on the following basic premise:-
a) It was open to the State to have two distinct cadres namely E
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.
b) The pay structure given to the Niyojit Teachers was definitely F
lower than what was given to Government Teachers but the
number of Government Teachers was considerably lower than
the number of Niyojit Teachers.
As stated above, presently there are just about 66,000
Government Teachers in the State as against nearly 4 lakh G
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.
H
856 SUPREME COURT REPORTS [2019] 7 S.C.R.

A c) The parity that is claimed is by the larger group with the lesser
group as stated above which itself is a dying or a vanishing
cadre.
d) The mode of recruitment of Niyojit Teachers is completely
different from that of the Government Teachers as stated
B above.
77. 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
C the ground of process of recruitment, the stand taken on behalf of the
State Government is not unreasonable or irrational. Going by the facts
indicated above 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
D 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 in our considered view the State
had not faltered on any count. As laid down by this Court in the decisions
E in Joginder Singh28 and Zabar Singh29, 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
F 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.
78. It is true that the budgetary constraints or financial implications
can never be a ground if there is violation of Fundamental Rights of a
G citizen. Similarly, while construing the provisions of the RTE Act 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
H Education ought to be quality education. However, such premise cannot
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 857
COMMITTEE, MUNGER [UDAY UMESH LALIT, J.]

lead to the further conclusion that in order to have quality education, A
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.
B
79. In our considered view, there has been no violation of the
Rights of the Niyojit Teachers nor has there been any discrimination
against them. We do not find that the efforts on part of the State
Government could 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 C
Government, do not arise for consideration.
In our view, great strides have been made by the State in the last
decade. It has galvanised itself into action and not only achieved the
objectives of having schools in every neighbourhood but has also
succeeded in increasing the literacy rate. It has also succeeded in having D
more girl children in the stream of education and consequently the TFR,
as indicated above, 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 E
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 F
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.
80. At the same time, the submission that at the initial stage the
Niyojit Teachers are given such emoluments which are lesser than peons G
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 H
858 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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. In the chart referred to
in para 32(c) above, 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
B
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
C considered by the State.
81. In the circumstances, we allow these appeals preferred by
the State, set aside the judgment and order under appeal and dismiss the
Writ Petitions preferred on behalf of Niyojit Teachers.
82. In the end, we must express our sincere gratitude for the
D assistance rendered by all the learned counsel who appeared in the
matters. We are grateful to all the learned counsel.
83. These appeals are allowed in aforesaid terms. No order as to
costs.

E ABHAY MANOHAR SAPRE, J.
1. I have had the advantage of going through an elaborate, well
considered and scholarly drafted judgment proposed by my esteemed
brother Justice Uday Umesh Lalit.
2. I entirely agree with the reasoning and the conclusion, which
F my erudite brother has drawn, which are based on remarkably articulate
process of reasoning. However, having regard to the nature of the
controversy involved in these appeals, which was ably argued by senior
lawyers in their respective submissions, I wish to add a few words of
mine.
G 3. This case reminds me of the apt observations made by an
eminent Judge of this Court, Vivian Bose J., in his concurring opinion in
the case of Bidi Supply Co. vs. Union of India & Ors., AIR 1956 SC
479. The learned Judge made these observations while examining the
object and the scope of Article 14 of the Constitution of India.
H
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 859
COMMITTEE, MUNGER [ABHAY MANOHAR SAPRE, J.]

4. In his immaculately and distinctive style of writing, the learned A
Judge made the observations in paras 15 and 16, which read as under:
“15. With the utmost respect all this seems to me to break
down on a precise analysis, for even among equals a large
discretion is left to judges in the matter of punishment, and
to the police and to the State whether to prosecute or not B
and to a host of officials whether to grant or withhold a permit
or a licence. In the end, having talked learnedly round and
around the article we are no wiser than when we started
and in the end come back to its simple phrasing—
“The State shall not deny to any person equality before C
the law or the equal protection of the laws within the
territory of India.”
16. The truth is that it is impossible to be precise, for we
are dealing with intangibles and though the results are clear
it is impossible to pin the thought down to any precise D
analysis. Article 14 sets out, to my mind, an attitude of mind,
a way of life, rather than a precise rule of law. It embodies a
general awareness in the consciousness of the people at
large of something that exists and which is very real but
which cannot be pinned down to any precise analysis of fact
save to say in a given case that it falls this side of the line E
or that, and because of that decisions on the same point
will vary as conditions vary, one conclusion in one part of
the country and another somewhere else; one decision today
and another tomorrow when the basis of society has altered
and the structure of current social thinking is different. It F
is not the law that alters but the changing conditions of the
times and Article 14 narrows down to a question of fact
which must be determined by the highest Judges in the
land as each case arises. (See on this point Lord Sumner’s
line of reasoning in Bowman vs. Secular Society Ltd.,
1917 AC 406. Always there is in these cases a clash of G
conflicting claims and it is the core of the judicial process
to arrive at an accommodation between them. Anybody can
decide a question if only a single principle is in issue. The
heart of the difficulty is that there is hardly any question
that comes before the Courts that does not entail more H
860 SUPREME COURT REPORTS [2019] 7 S.C.R.

A than one so-called principle. As Judge Leonard Hand of
the United States Court of Appeals said of the American
Constitution.”
5. The aforesaid observations of Justice Vivian Bose, therefore,
should always be kept in mind while deciding the question of the nature
B arising in every case including the one at hand.
6. As rightly held by brother Lalit J., the issue involved in these
appeals is answered by two decisions of the Constitution Bench of this
Court, namely, State of Punjab vs. Joginder Singh, 1963 Suppl(2)
SCR 169 and Zabar Singh & Ors. vs State of Haryana and Ors.
C (1972 ) 2 SCC 275.
7. In my view also, the issue, which is subject matter of these
appeals, has to be decided keeping in view the law laid down by this
Court in the aforementioned two decisions of the Constitution Bench.
8. I may, at this stage, refer to a decision in N. Meera Rani vs.
D Govt. of Tamil Nadu & Anr., AIR 1989 SC 2027. In this case, it was
argued that the question involved in the appeal is governed by the decision
of the Constitution Bench in Rameshwar Shaw vs. District
Magistrate, Burdwan, AIR 1964 SC 334. It is pertinent to mention
that the same question was also decided by this Court but it was decided
E subsequent to the decision of the Constitution Bench in many other cases.
The later decisions on the same question were, however, rendered by
the Benches comprised of lesser number of the Judges.
9. Justice J.S. Verma (as His lordship then was), speaking for
Three Judge Bench, held that the question involved in the appeal before
F them has to be, therefore, decided in the light of law laid down by the
Constitution Bench because firstly, it is a decision rendered by the
Constitution Bench; Secondly, it is prior in point of time; and thirdly, the
law laid down in later decisions has to be read in the light of the law laid
down by the Constitution Bench. This is what His Lordship said in
para 13:
G
“13. We may now refer to the decisions on the basis of
which this point is to be decided. The starting point is the
decision of a Constitution Bench in Rameshwar Shaw v.
District Magistrate, Burdwan, AIR 1964 SC 334. All
subsequent decisions which are cited have to be read in
H the light of this Constitution Bench decision since they are
STATE OF BIHAR v. THE BIHAR SECONDARY TEACHERS STRUGGLE 861
COMMITTEE, MUNGER [ABHAY MANOHAR SAPRE, J.]

decisions by Benches comprising of lesser number of A
Judges. It is obvious that none of these subsequent
decisions could have intended taking a view contrary to
that of the Constitution Bench in Rameshwar Shaw case.”
10. Keeping in view the law laid down in N. Meera Rani (supra),
I am of the view that the question involved in these appeals needs to be B
decided in the light of the law laid down by two decisions of the
Constitution Bench rendered in Joginder Singh (supra) and Zabar Singh
(supra).
11. Though the learned counsel for the respondents made sincere
attempts on their part in contending that the law laid down in Joginder C
Singh (supra) and Zabar Singh (supra) has no application to the question
involved in these appeals because the facts involved therein are not
similar to the facts involved in these appeals, we are afraid, we cannot
accept this submission. In my opinion, it is not so.
12. Brother Lalit,J. has dealt with this question elaborately in paras D
72 to 74 of his opinion. I respectfully concur with his reasoning contained
therein.
13. I am also, therefore, of the view that the appeals deserve to
be allowed and are accordingly allowed. The impugned judgment is set
aside and the writ petitions filed by the respondents before the High E
Court are dismissed.

Kalpana K. Tripathy Appeals allowed.

F

G

H