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PETITIONER: JAGDISH PARSAD SINHA & ORS.

       Vs.

RESPONDENT: BHAGWAT PRASAD & ORS.

DATE OF JUDGMENT01/08/1989

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH KULDIP SINGH (J)

CITATION:  1989 AIR 1794            1989 SCR  (3) 658  1989 SCC  (3) 610        JT 1989 (3)   257  1989 SCALE  (2)173

ACT:     Constitution of India 1950: Articles 14 and 16---Service cadre--Bifurcation of--To provide quick promotional  avenues to  those  lower down in the joint cadre action  held  ultra vires.     Civil  Services:  Bihar Subordinate  Education  ’Service (Teaching Branch) Determination of Seniority Rules:  Second- ary  Education Service--Cadre Bifurcation of  for  providing quick  promotional  avenues  to those  beyond  the  eligible zone---Action--Held illegal and ultra vires.

HEADNOTE:     On 20th February, 1975, the State Government published a joint  seniority list of teachers of  subordinate  Education Service belonging to the Boys branch, and the Higher Second- ary  Teachers of the Subordinate Educational  Service.  This joint  gradation list was challenged before the High  Court, but  the writ petition was dismissed as also an  application for  review  of the dismissal. The  Special  Leave  Petition against  the aforesaid decision was dismissed by this  Court on 30th March, 1981.     The aforesaid single cadre known as Secondary  Education Service was difurcated by the State Government by its  Noti- fication dated 8th November 1986 under which the Subordinate Education Service (Teaching Branch) Determination of Senior- ity  Rules, were framed under the proviso to Article 309  of the Constitution-     This  bifurcation  scheme  was challenged  in  the  High Court.  The stand of the Government was that the demand  for such  bifurcation  was taken up in the  legislature  and  in terms of the decision of the Implementation Committee of the Bihar  Legislative Council, the new scheme  for  bifurcation had to he implemented. The High Court by its decision  dated 27th  November,  1987 quashed the  Notification  dated  18th November, 1986 under which the bifurcation was done.     The High Court was of the view that though the authority of  the  state  to frame rules in terms of  the  proviso  to Article 309 was unquestionable, yet notice had to he tam  of time fact that those who stood 659 together and fell in line to proceed further in the seniori-

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ty list have to he provided all opportunities in respect  of their  avenues  of  promotion alike  without  breaking  that order, so that one who ranks higher in the grade may not  go down  in due course of service, and held that the  rules  in the Notification dated 18th November, 1986 were ultra  vires Articles 16(1) and 14 of the Constitution. Dismissing the Special Leave Petition to this Court,     HELD: The High Court, rightly found fault with the State Government action, and holding that the rules in the Notifi- cation  dated 18th November, 1986 are ultra  vires  Articles 16(1) and 14 of the Constitution. [660F]     Counsel  for  the  State was not able  to  dislodge  the conclusion that bifurcation was the outcome of an attempt to provide  quick promotional avenues to those who  were  lower down  in the joint cadre and would not have come within  the range  of  consideration  for promotional  benefits  but  by bifurcation became entitled to such benefits. [661C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  656  of 1989.     From  the  Judgment and Order dated 27.11. 1987  of  the Patna High Court in C.W.J .C. No. 1254 of 1987. Tapas Ray and D.P. Mukharjee for the Appellants.     M.K.  Ramamurthi,  P.P. Singh, A.N.  Trehan  and  Promod Swarup for the Respondents. The Judgment of the Court was delivered by     RANGANATH  MISRA,  J. This appeal by  special  leave  is directed against the decision of the Patna High Court  dated 27.11. 1987 quashing the notification dated 18.11.1986 under which in terms of the Subordinate Education Service  (Teach- ing  Branch) Determination of Seniority Rules  framed  under the proviso to Article 309 of the Constitution, the hitherto single cadre known as Secondary Education Service was bifur- cated.     On  20th  of February, 1975, the State  Government  pub- lished  a  joint seniority list of teachers  of  Subordinate Education  Service belonging to the Boys school  branch  and the Higher Secondary Teachers 660 of  the Subordinate Education Service. The  joint  gradation list  was challenged before the High Court in Writ  Petition No. 2956 of 1975. The High Court dismissed the writ petition as also an application for review of such dismissal. On 30th March,  198 1, this Court dismissed the special leave  peti- tion  carried against the decision of the High  Court.  When with  the dismissal of the special leave petition the  posi- tion  was getting settled, the State Minister  of  Education came forward with a proposal that the cadre should be  sepa- rated and the Higher Secondary teachers and Secondary teach- ers  of  the  Upper Division of  the  Subordinate  Education Service should have a separate gradation list. Ultimately by the  impugned  notification the bifurcation  was  done.  The Government  took the stand that the demand to bifurcate  was taken  up  in the Legislature and in terms of  the  decision taken by the Implementation Committee of the Bihar  Legisla- tive Council, the new scheme of bifurcate came to be done.     The High Court considered the matter at great length and with  care. The legal position as settled by  several  deci- sions  of  this Court was noticed. Towards the  end  of  the judgment the High Court has said:                        "We have referred to the judgment  of               the Supreme Court in K.S. Vora & Ors. v. State

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             of Gujarat & Ors., only to illustrate that the               courts have at no time ignored the interest of               the employees and questioned the authority  of               the  State  to  frame rules in  terms  of  the               proviso to Article 309 of the Constitution  of               India, but the courts have always taken notice               of the fact that those who stood together  and               fell  in  line to proceed further have  to               be  provided all opportunities in  respect  of               their  avenues  of  promotion  alike   without               breaking  that  order, so that one  who  ranks               higher  in  the grade may not go down  in  due               course of service. It is in this context  that               we have no hesitation in holding that rules in               the  notification dated 18.11.1986  are  ultra               vires  Articles 16(1) and 14 of the  Constitu-               tion.                        We  do not propose to predicate  into               what  is  alleged to be the mala fide  of  the               respondent  State inasmuch as after the  judg-               ment  of this Court in C’.W.J.C. No.  2956  of               1975,  the Minister of State decided  to  find               means  to disintegrate the already  integrated               cadre  or  the  Chairman  of  the  Legislative               Council, having no apparent role in the  proc-               ess  of  making rules in terms of  proviso  to               Article  309 of the Constitution appeared  and               influenced the process. We               661               refrain  from going into this aspect,  for  we               think, with our conclusion as above, the upper               division of the Subordinate Education  Service               shall continue to have the same respect as  it               got  from  the  judgment  of  this  Court   in               C.W.J.C.  No. 2956 of 1975 and no one  in  the               Government  shall in future again  attempt  to               deny to the members of the said service  their               due  rights  for promotion  to  the  selection               grade and other higher posts."     In  course  of hearing of the matter,  counsel  for  the State was not able to dislodge the conclusion that  bifurca- tion  was the outcome of an attempt to provide quick  promo- tional  avenues  to those who were lower down in  the  joint cadre and would not have come within the range of considera- tion  for  promotional benefits but  by  bifurcation  became entitled  to such benefits. The High Court, in our  opinion, rightly found fault with such action.     We  have  considered the matter  from  different  angles keeping the relevant aspects in view but have not been  able to  satisfy  ourselves that the judgment of the  High  Court suffers from any infirmity to justify its vacation.     The appeal is accordingly dismissed but parties are left to bear their respective costs. N.V.K.                                          Appeal  dis- missed. 662