In CIVIL APPEAL NO.7364 OF 2014-SC- Upsetting substantive expectation induced by government authority through departure from expected course of action in absence of compelling public interest, amounts to abuse of power: SC Justices K.M.Joseph & Hrishikesh Roy [06-05-2022]

Read Judgment: STATE OF BIHAR & ORS v. SHYAMA NANDAN MISHRA 

Tulip Kanth 

New Delhi, May 07, 2022: The Supreme Court has upheld the order of the Patna High Court, wherein it was observed that +2 lecturers, both in the Government and the nationalized secondary schools, appointed pursuant to an Advertisement No.1/87, have always been part of the Bihar Subordinate Education Service (BSES) and are entitled to be merged with the Bihar Education Service Class II (BES), pursuant to the Government decision dated July 7, 2006. 

The Division Bench of Justice K.M.Joseph and Justice Hrishikesh Roy opined that the abuse of power was discernible in the State’s disparate decision in encadring the +2 lecturers with the teachers of nationalized schools, notwithstanding the contrary representation through the 1985 notification which created the +2 lecturer posts and the 1987 advertisement under which, the respondents entered service.

The facts germane to the present appeal were such that the Bihar Government in 1979 introduced the 10+2+3 education pattern (10 years of schooling, 2 years of higher secondary and 3 years of college graduation). At the relevant time, in the absence of sufficient infrastructure, higher secondary education was imparted by colleges.The posts of +2 lecturers were sought to be created to impart +2 level teaching.

The Bihar Government on November 13,1985 sanctioned 148 posts of lecturers in Subordinate Service Selection Grade for government schools and 264 posts of lecturers in nationalized schools, providing a common pay scale of Rs. 940-1660 for both categories of lecturers. Only the posts of the +2 lecturers in the Government schools were specified to be in the BSES Selection Grade. Thereafter, the Bihar School Service Board issued the advertisement No. 1/87, initiating the process of selection. 

The candidates were to apply for the posts of lecturer in the Subordinate service grade and the advertisement prescribed Post Graduation in 2nd division, as necessary qualification for the posts. The selected candidates were then issued the appointment orders, which reflected that the appointments were being made to newly created ex-cadre posts in +2 schools, on ad-hoc and temporary basis. These temporary appointments were continued for succeeding academic years under various government notifications, issued from time to time.

The main cause for the present litigation is that while implementing the merger decision of July 7,2006, an exception was carved out by the government on October 6, 2006, whereunder, the benefit of merger into BES was denied to the +2 lecturers in Government schools. The ostensible premise for the deviation was that the +2 lecturers were never treated or recognized as part of the BSES cadre. The +2 lecturers being aggrieved thus, moved the High Court contending that their posts were created in the BSES. This position was also reflected in the advertisement No. 1/87 through which they were recruited. In effect, the benefits of the merger with the BES were claimed in these matters.

During the pendency of such Writ Petitions in the High Court, the State Government notably decided to amend the Bihar Taken-over Secondary Schools (Service Conditions) Rules, 1983. Through the 2009 amendment, the lecturer was defined to mean the +2 lecturers who were appointed pursuant to the Advertisement No. 1/87 and they were encadred with the nationalized secondary school teachers. As a result of the above encadrement with the teachers of the nationalized school category, further challenge was generated in the High Court by the +2 lecturers. It was specifically contended that the +2 lecturers had always been treated as above the secondary school teachers in nationalized schools and therefore encadrement of the two unequals was unjust.

Thus, relief was granted to the respondents with the declaration that the +2 lecturers of both schools, who were appointed under the Advertisement no. 1/87, have always been part of the BSES and consequently of the BES.The Court also interfered with the impugned 2009 notification which provided for the encadrement of the +2 lecturers with the teachers in the nationalized secondary schools, which was found to be in contravention of Article 790 of the Bihar Education Code and also contrary to the Governments decision dated July 7,2006 and the Advertisement No. 1/87. Aggrieved thereof, the State preferred the appeals.

The Bench affirmed that the Government decision (October 6,2006), through which the +2 lecturers were denied the benefit of merger with the BES, was not founded on the ground that posts of +2 lecturers were not borne in 1977. The ostensible reason was that the +2 lecturers were never recognized in the BSES. According to the Bench, such attempt by the government to supplement reasons, not found in their order, couldnot be legally permitted.

Referring to the advertisement in question, the Apex Court confirmed that as per Advertisement 1/87, the lower pay scale of Rs. 850 – 1360 was offered to the teachers in the Secondary Schools in the cadre of BSES as compared to the pay scale offered to the + 2 lecturers. Furthermore, the academic qualifications specified therein for + 2 Lecturers was Post Graduation in 2nd division, whereas for other posts, a bare graduate would satisfy the prescribed qualification. As such, the exclusion of the respondents from the BSES cadre and consequently from BES, despite rendering continuous services in the same government secondary schools as teacher members of the BSES, led to a discriminatory situation, wherein, the BSES teachers who are junior (in terms of education qualifications and pay scale) to the respondents in Government secondary schools, got the benefit of higher scale of pay and also avenues of promotion to key controlling positions in the education department. The Bench held that the same would surely infringe the rights of the +2 lecturers, guaranteed under Article 14 and Article 16(1) of the Constitution.

The Top Court considered the fact that such arbitrary action of the government in favoring the BES officers to enable them to exclusively occupy the key administrative posts, was noticed and was subjected to court’s caustic comments in the previous rounds of litigation. Also, taking into account the repeated attempts by the state to inordinately favour those in the BES cadre, the Bench was constrained to observe that the state government was not acting bonafide and was persisting in their iniquitous attempt to deny to the respondents, what is legitimately due to them.

Also, it was noticed that neither section 9 nor Section 15 of the Bihar Non-Government Secondary Schools (Taking over of Control and Management) Act, 1981 empowers the State Government to amend Rules to expand the scope of the Act. As such, the 2009 Rules, introducing the 2009 notification, purported to be framed under section 9 read with section 15 of the 1981 Act, were found to be at variance with the provisions and the purpose of the 1981 Act. The 2009 Notification was held by the Bench to be well beyond the ambit of the 1981 Act, which could not therefore have been issued, without the necessary amendments to the 1981 Act.

Testing the impugned action of the Government on the anvil of the Doctrine of Legitimate Expectation, the Top Court held that the 2009 notification besides being legally untenable, would also deny the substantive legitimate expectations, the respondents nurtured, as members of the government schools in the BSES cadre. The denial was particularly glaring in the absence of promotional avenues for the respondents to the controlling/supervisory posts in the administrative wing of the education department.

The respondents, in course of their service as +2 Lecturers, would reasonably expect to occupy the higher position in the department, depending upon their inter-se seniority in the common seniority list, but the Government action, restricting movement through artificial sub-grouping of +2 Lecturers with teachers of nationalized schools, had unreasonably belied their expectation, added the Bench.

Referring to the judgment of the Court of Appeal of England and Wales in the seminal case of Coughlan R v. North and East Devon Health Authority Ex p. Coughlan, where the Court preferred to use abuse of power as one of the criteria for testing whether a public body could resile from a prima facie legitimate expectation, the Division Bench asserted, “In the Court’s opinion, if the government authority induced an expectation which was substantive, the upsetting of that expectation, through departure from the expected course of action in the absence of compelling public interest, would be so unfair, that it would amount to abuse of power.”

Resultantly, the Bench recorded its approval with the reasoning and conclusions in the impugned judgment in favour of the +2 lecturers to the effect that they are indeed the members of the Subordinate Educational Service and the State Government must treat the +2 lecturers appointed pursuant to the Advertisement No. 1/87 as members of the Subordinate Educational Service and all service benefits as the members of the Subordinate Educational Service should therefore be extended to them.

Seeing no good reasons to interfere with the impugned judgment, the Apex Court dismissed the appeals and granted 6 month’s time to ensure compliance with High Court’s direction in letter and spirit.