The petitioner is an Association representing the teachers of the Bihar Subordinate Education Service (hereinafter referred to as BSES for brevity). They had filed a writ petition in the Patna High Court claiming ...
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Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION (CIVIL) NO. 88-89 OF 2013
IN
CIVIL APPEAL No. 8226-8227 of 2012
Bihar State Govt. Sec. Scl. Teachers Assn. ….Petitioner(s)
Versus
Ashok Kumar Sinha & Ors. ….Respondent(s)
J U D G M E N T
A.K. SIKRI, J.
1.These contempt proceedings arise out of the judgment and
order dated 23.11.2012 passed by this Court in CA Nos. 8226-
8227 of 2012. Before we take note of the exact nature of
directions given in that judgment which according to the
petitioners have been flouted contumaciously and
1
Page 2 deliberately, we would like to take note of the history of
litigation culminating in passing of the said judgment.
2.The petitioner is an Association representing the teachers of
the Bihar Subordinate Education Service (hereinafter referred
to as BSES for brevity). They had filed a writ petition in the
Patna High Court claiming merger of their cadre with the
Bihar Education Service (hereinafter referred to BES for
brevity). The writ petition was allowed and the LPA and the
SLP filed against the same were dismissed. Since the
benefits of merger of cadre were still not being granted,
another writ petition was filed, which too was allowed and
affirmed in LPA. Although leave was granted in the SLP filed
by the State of Bihar, ultimately the Civil Appeal was
dismissed by the judgment dated 19.04.2006 resulting in the
outcome in favour of the petitioner.
3.In compliance of the said judgment of this Court, a
Resolution merging the cadre of BSES with BES was issued on
07.07.2006 and the BSES teachers were granted benefits of
the merger, like enhancement of payscale, promotion etc. At
2
Page 3 this stage, a writ petition was filed by BES Association (BESA)
challenging the merger. A single judge of the High Court
allowed it vide judgment dated 31.10.2007, which was
affirmed by a Division Bench on 21.05.2010. This judgment
was challenged before this Court by filing SLP.
4.Immediately after the judgment of the learned single judge,
the State Government withdrew the Resolution of merger
dated 07.07.2006 by a notification dated 19.11.2007
expressly mentioning therein that the same was being issued
in light of the High court judgment dated 31.10.2007 and
thereby all benefits of merger of cadre were withdrawn.
Several consequential benefits had been granted to the
teachers pursuant to the merger by issuing various
Resolutions. These benefits were also withdrawn and in fact
a Resolution was passed by the state government on
17.01.2008 directing that the teachers would get pay and
other benefits, as they were getting prior to the merger,
thereby nullifying the effect of earlier Resolution of merger
dated 7.7.2006.
3
Page 4 5.The Special Leave Petition was granted and appeal was
ultimately heard finally. Eventually this appeal was allowed
by a detailed judgment dated 23.11.2012, thereby setting
aside the judgment of the High Court. This Court also
quashed the notification of the State Government dated
19.11.2007, by which the benefits of merger granted to the
teachers had been withdrawn. As a corollary State
Government’s Resolution dated 07.07.2006 was upheld and
restored by which the cadre of the BSES teachers, Teaching
Branch had been merged with that of BES and the State
Government was directed to act accordingly.
6.The conclusive portion of the detailed judgment dated
23.11.2012 reflects raison d’etre for arriving at such a
conclusion and the precise nature thereof. We, therefore,
reproduce the same hereunder for the sake of further
discussion:
“44. This entire discussion leads us to only one
conclusion that the learned Single Judge who
heard the petition CWJC No.10091/2006, which
began the third round of litigation filed on behalf
of the Bihar Education Service Association, had no
business to re-open the entire controversy, even
4
Page 5 otherwise. The State Govt. had already passed a
resolution dated 07.07.2006 after the order of this
Court dated 19.04.2006. While examining the
legality of that resolution (which was defended by
the State Govt. at this stage before the learned
Single Judge) the entire controversy was once
again gone into. The law of finality of decisions
which is enshrined in the principle of res-judicata
or principles analogous thereto, does not permit
any such re-examination, and the learned Judge
clearly failed to recognize the same.
45. For the reasons stated above, these appeals
(arising out of SLP Nos.26675-76 of 2010) are
allowed. The judgment and order passed by the
Division Bench of Patna High Court in LPA
No.4182009 and other LPAs dated 21.05.2010,
and that of the learned Single Judge dated
31.10.2007 in CWJC No.100912006 are set-aside
and the said Writ Petition is hereby dismissed.
Consequently the notification dated 19.11.2007
issued pursuant to the decision of the Single
Judge will also stand quashed and set-aside. The
State Govt. Resolution dated 07.07.2006 is
upheld. The state shall proceed to act
accordingly. I.A. Nos.19-202011 are dismissed.
As stated by Mr. Patwalia, learned senior counsel
for the appellants, the appellants no longer press
for the action for contempt arising out of CWJC
No.86792002. Contempt Petiton Nos. 386-
387/2011, will also accordingly stand disposed of,
as not pressed.
46. The attitude of the State Govt. in the matter
has caused unnecessary anxiety to a large
number of teachers. The State Govt. must realize
that in a country where there is no much illiteracy
and where there are a large number of first
generation students, the role of the primary and
secondary teachers is very important. They have
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Page 6 to be treated honourably and given appropriate
pay and chances of promotion. It is certainly not
expected of the State Govt. to drag them to the
Court in litigation for years together.
47. Though the appeals stand disposed of as
above, we do record our strong displeasure for
the manner in which the State of Bihar kept on
changing its stand from time to time. This is not
expected from the State Govt. The manner in
which the learned Single Judge proceeded with
the Writ Petition No.1009/2006 to reopen the
entire controversy, and also the Division Bench in
LPA No.418/2003 in approving that approach is
also far from satisfactory. If the orders passed by
this Court were not clear to the State Govt. or any
party, it could have certainly approached this
Court for the clarification thereof. But it could not
have setup a contrary plea in a collateral
proceeding. We do not expect such an approach
from the State Govt. and least from the High
Court. Having stated this, although we have
expressed out displeasure about the approach of
the State Government, we refrain from passing
any order as to costs.”
7.It is clear from the above that the Court took the view that
once decision of merger was not only upheld by this Court in
its earlier judgment dated 19.04.2006, but thereafter it was
even acted upon by the State Government by passing
Resolution dated 07.07.2006, there was no reason for the
High Court to reopen the matter in a Writ Petition at the
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Page 7 instance of BES Association. The Court, therefore, in
categorical terms upheld the Resolution dated 07.07.2006
effecting the merger of two services namely BSES and BES.
Since this merger was undone by the State Government by
passing another Resolution dated 19.11.2007, this latter
Resolution was quashed. The effect of these directions was
to restore status quo ante by reinforcing the position with the
issuance of Resolution merging the two cadres on 07.07.2006
and conferring all benefits of merger on to the members of
the petitioner's Association, viz. teachers belonging to
erstwhile BSES.
8.According to the Petitioner, after the aforesaid judgment
was given, several representations were made to the State
Government, on a virtually daily basis, to restore the earlier
position consequent upon the merger of the two cadres but it
was of no avail. In these representations, the Petitioners also
called upon the State Government to give the consequential
benefits granted pursuant to merger notification by restoring
the same and stated that these benefits would include
upgradation of posts, fixation of higher pay, payment of
7
Page 8 arrears, promotions etc. However, instead of implementing
the directions contained in the judgment, the Petitioner
received letter dated 24.01.2013 from Respondent No.4,
namely, the Director (Admn.)-cum-Additional Secretary,
Department of Education, Government of Bihar) stating
therein that the proposal was sent for the approval of merger
and the Petitioner were asked to provide details of pay scales
etc. of the BSES teacher to expedite the matter. According to
the Petitioner referring the matter to the Cabinet to approve
the merger itself was a contemptuous act inasmuch as there
was no question of fresh approval from the Cabinet regarding
merger. According to the Petitioner with the upholding of the
Resolution dated 7.07.2006, which was a Resolution of
merger, that Resolution stood revived and restored by the
Court itself and the Government was only required to grant
the consequential benefits to the BSES teachers by passing
formal orders in this behalf. Notwithstanding the same, in
compliance with the request letter dated 24.01.2013, the
Petitioner submitted the required details vide communication
dated 28.01.2003. However, even thereafter nothing
8
Page 9 happened even when the matter was persued repeatedly
and almost on daily basis with the Government. It is at that
stage that present contempt petition was filed on 23.01.2013
alleging that the Respondents herein had deliberately,
willfully and intentionally failed to comply with the directions
contained in the judgment dated 23.11.2012 by refusing to
grant all admissible benefits of mergers to the Petitioners.
9.Notice in this contempt petition was issued. Thereafter
various orders were passed from time to time taking note of
the developments happening at the government’s end which
included approval for merger and grant of certain benefits by
the State Cabinet. It would be apt to take note of steps taken
by the State Government, in brief, hereunder:
(a) On 01.03.2013, the State Cabinet approved
the proposal for merger. This proposal which was
approved was of the following nature:
“6. At the time of issuance of Resolution
No.1209 dated 07.07.2006 the estimated
amount of expenditure was 64 Crore.
Presently this amount is Rs.104 crores.
9
Page 10 7. (i) In compliance of the order of the
Hon’ble Supreme Court dated 23.11.2012, it is
proposed that the Resolution No.1209 dated
07.07.2006 be revived and Notification
no.1855 dated 19.11.2007 be annulled.
(ii) Consequential Benefits are proposed to be
given to the cadre of teachers of Bihar
Subordinate Education Service (Teaching
Branch) Male and Female after merger.
8. Approval of Finance Departments has been
obtained.”
(b) After the approval of merger by the State
Government, Resolution dated 17.04.2013 was
passed by the Education Department,
Government of Bihar. Though as per para 6,
earlier Notification dated 19.11.2007 was
withdrawn and Resolution dated 07.07.2006 was
revived, in para 7 while giving consequential
benefits it was mentioned that for the purpose of
granting these benefits upto date list from the
Director, Secondary Education was to be obtained
and Bihar Education Service Department of
Examination Rules, 1973 and order of status quo
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Page 11 given by the Supreme Court on 04.07.2011 are to
be scrutinized. It was mentioned that separate
orders would be issued only thereafter in this
regards.
As per the Petitioner, introduction of these
conditions for grant of consequential benefits was
not only contrary to the judgment of the Court but
even contrary to the Cabinet approval as no such
conditions were prescribed in the approval
granted by the State Cabinet.
(c) Thereafter orders dated 24.04.2013 were
passed reviving ACP benefits which were earlier
granted.
As per the Petitioner even while doing so, in Para
5 of the said order it was mischievously
mentioned that after the matter for grant of
consequential benefits w.e.f. 01.01.1997 was
examined, in course of such examination it has
been found that before issuing Resolution
11
Page 12 No.1209 dated 07.07.2006 all points were not
fully considered.
(d) On 20.07.2013 press release was issued by
the Government calling upon all the teachers of
erstwhile BSES including heirs of deceased
teachers/retired teachers to submit service books,
appointment/promotion orders, testimonials of
educational qualifications within three days for
the purpose of granting them the benefits.
In the mean time BSES Association filed I.A. in
disposed of C.A. No. 8228-8229 of 2012 seeking
modification of the said judgment for direction of
their seniority this I.A. was dismissed on
13.08.2013 and while doing so the Court observed
that implementation of orders dated 23.11.2012
was deliberately obstructed by BSES Officers.
(e) On 13.08.2013 a Government Committee, in
which BSES Officer was special invitee, prepared
draft Rules.
12
Page 13 (f) On 26.07.2013 Government Order was passed
creating promotional post in the merged cadre
w.e.f. 01.01.1977 to 31.12.1995 and as a result
thereof 877 promotional posts were created in
merged BES.
On the same day, compliance was filed by the
State in this Court wherein it had been stated as
to how the court orders were complied with. It
was followed by another compliance report dated
26.08.2013 in the present contempt petitions.
(g) When these contempt petitions came up on
12.12.2013, the Ld. ASG appearing for the State
Government stated that seniority list on
17.08.2007 shall be given effect to. This is a very
crucial statement. On this statement, direction
was issued by the Court to grant consequential
benefits of merger within eight weeks. Another
specific direction was given to restore the position
13
Page 14 consequent to orders dated 28.06.2007 posting
BSES teachers as Principals.
It resulted in partial obedience in the form of
orders dated 08.01.2014 by which 100 BSES
teachers were posted as Principals.
(h)On 26.01.2014, Resolution was passed
creating posts of Senior Professors, Senior
Lecturers’ and Vice-Principals in the Government
schools and upgrading the post of Principal to the
highest level. Reason for this given in the
Resolution is that it became necessary as no new
post for BSES teachers were available after
mereger.
(i)On 10.02.2014 orders were passed posting
about 257 teachers. With this all serving BSES
teachers were given postings.
(j)By a different order of the same date time
bound promotion was granted to erstwhile BSES
teachers.
14
Page 15 (k)While all this was happening, on 12.02.2014,
the State Government promulgated Bihar
Education Rules, 2014. This act, according to the
Petitioner shows inveterate behaviour of the
respondents who have attempted undo the real
effect of merger. These Rules create three sub
cadres within BES. Under these Rules BSES
teachers are put in teaching sub cadre, where
Principal would be highest promotional post. In
contrast BES Officers are put in administration sub
cadre, who would continue to be controlling the
schools. These Rules also provide that each sub-
cadre will have its own separate seniority list.
Further, teaching cadre of BSES is treated as
“dying cadre”.
10.A glimpse of the aforesaid steps taken after the filing of
the CCP shows that some efforts are being made to comply
with the directions of this Court that too after the filing of this
CCP. However, the grievance of the Petitioner is that even
when the orders of creation and upgradation of post etc. are
15
Page 16 issued there are so many discrepancies therein which would
manifest lack of bona fides on the part of the administration
to comply with the directions in letter and spirit. On the
contrary in spite of merger, erstwhile BSES teachers are given
step motherly treatment on the one hand, and on the other
hand BES employees are still treated as the favourites of the
authorities, with the result the discrimination between the
two continues, even when with the merger of two cadres,
they stood amalgamated into one and there was no reason to
identify them as BSES and BES any longer. It is further
argued that the provisions of Bihar Education Rules, 2014
(the Rules, 2014) are deliberately made with the aforesaid
ragnant motive in mind and made in violation of directions in
the judgment of this Court. Various discrepancies in the
orders issued by the Government from time to time, as well
as in the Rules, 2014 are pointed out in the manner as below:
Discrepancies in the orders of posting
16
Page 17 1. Posting orders have been issued with complete non
application of mind as even dead and retired teachers
have been posted.
2. Seniority has been given a complete go by while
issuing these orders. Juniors have been posted as
Principals and seniors posted as Vice-Principals, Sr.
Professor & Sr. Lecturers.
3. Posting the erstwhile BSES teachers in Training
Colleges is impermissible under 1973 Rules as well as
the new 2014 Rules.
4. These notifications have been issued on 10.02.2013
posting erstwhile BSES teachers as Vice-Principals, Sr.
Professors, Sr. Lecturers. However, the new Rules were
notified on 12.02.2014 and therefore on the day these
postings were made, the posts were non existent.
Discrepancies in the creation & upgradation of posts
1. Posts of Sr. Professors & Sr. Lecturers are
unheard of in schools. Such posts have never
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Page 18 existed in any school, let alone govt. school and
exist only in colleges.
2. Creation of these posts show malicious intent
as it is an attempt to prevent erstwhile BSES
teachers from occupying higher promotional posts
in BES.
3. Para 7 of the Resolution dated 29.01.2014 says
that these posts would get finished once the
incumbents retired. The intention is therefore
clear that these posts are not required and are
being used to only ‘park’ the erstwhile teachers
till they retire.
4. The BES officers had pleaded in IA 25-26 that
their seniority would be affected and they would
lose the higher posts. This IA was dismissed,
despite that the respondents have devised this
creation of posts to protect the BES officers.
5. The purported reasoning behind creating these
posts is that adequate promotional posts were
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Page 19 created for the period 01.01.1977 to 31.12.1995
in the merged BES cadre vide notification dated
26.07.2013. Even the exercise qua post
01.01.1996 period has been completed vide
notifications dated 10.11.2001, 10.12.2002 and
29.06.2004 initially and then vide Resolution
dated 15.06.2011 as need based posts
promotional posts, which are not to be created
but merely identified, have been identified for the
BES.
6. Other posts/categories of posts were merged
in the BES in the past but this exercise of creating
posts was never undertaken. This is nothing but
an attempt to overreach the orders of this Court
to protect the BES officers at any cost.
Discrepancies in the Bihar Education Rules 2014 and
the Cabinet Memo Approving New Rules.
1. This is the most brazen attempt to deny the
petitioner the fruits of its success in three rounds
19
Page 20 of litigation upto this Hon’ble Court. AS a result of
merger, the erstwhile BSES teachers would have
been entitled to the highest posts in BES, a fact
admitted specifically by the BES officers
themselves. As a result of these new Rules, they
cannot go beyond the post of Principal, which was
the basic grade/entry level post of BES till now.
2. Even though the BES officers rank much junior
to them, these BES officers would continue to be
the Controlling Officers of the schools in which the
BSES teachers would be posted by virtue of the
nature of their posts.
3. Merely giving financial benefits to the erstwhile
BSES teachers is not enough and they could not
be denied the higher posts within BES.
4. The real intention to somehow protect the BES
officers is revealed from para 2 of cabinet memo
dated 13.01.2014 which speaks of “clearing the
way for unobstructed promotion of BES officers”.
20
Page 21 5. A similar attempt to bifurcate cadres after the
order of merger in 2006 was shot down by the
then Minister saying doing so would amount to
breaching court orders and against organizational
interest.
6. There is no direction by this Hon’ble Court to
frame new Rules and the respondents are
completely misreading para 42 of the judgment
dated 23.11.2012. This Hon’ble Court had merely
considered and rejected the submission of BES
officers opposing merger on the ground of lack of
new Rules.
7. Since 1973 Rules already exist, there is no
occasion nor need for new Rules.
8. These Rules take away the actual benefit of
merger. The very basis of the merger was to
provide adequate promotional avenues to the
teachers but these Rules take that away.
21
Page 22 9. The Ld. ASG appearing for the respondents
had stated before this Court on 12.12.2013 that
the seniority list dated 17.08.2007 would be given
effect to. These Rules completely annul that
seniority list as each sub cadre would have a
separate seniority list.
11.Mr. Patwalia, learned Senior Advocate who made
detailed submissions on the aforesaid aspects rapped up his
arguments by pointing out that Respondents continue to defy
the orders of this Court which would be clear from the
following:
1. The erstwhile BSES teachers even now are
getting far lower salaries than what the BES
officers, who rank much junior to them in the
combined gradation list, are being paid. Similar is
the case with regard to pension of retired BSES
teachers. This is hostile discrimination and
blatant contempt.
22
Page 23 2. Rather than getting increased, the pension of
those BSES teachers, who retired prior to
09.08.1999, would actually decrease, a fact
admitted by the Accountant general. This can
certainly not be a consequence of merger.
3. Despite the reprimand and caution in para 46
& 47 of the judgment dated 23.11.2012, the state
continues to defy the orders of this Court.
4. The petitioner are being denied the benefits
despite orders of this Court because of malafides
on the part of the (i) present HRD Minister, who
had defended the BES as Advocate General before
the High Court, (ii) one Rameshwar Singh, who
was proceeded for contempt by the High Court in
this very matter but is now the Finance Secretary,
(iii) one Anjani Kumar Singh, against whom
contempt petition was filed for defying the interim
orders of this Hon’ble Court in this case but is
now the Principal Secretary to the Chief Minister.
23
Page 24 These three are acting at the behest of the BES
officers, who are hell bent to not get the orders of
this Hon’ble Court implemented.
5. The officers bearers of the petitioner
Association are being targeted. The General
Secretary of the petitioner has not been paid his
GPF dues even though he retired six years ago.
6. As a result the erstwhile BSES teachers have
not got either the financial or promotional benefits
of merger.”
12. Mr. L. Nageshwar Rao, learned ASG appeared on behalf
of Respondents. He countered the submissions of Mr.
Patwalia by arguing that there was substantial compliance of
the directions contained in the judgment dated 23.11.2012,
and no case for proceedings against the respondents for
contempt was made out. He drew our attention to the
following steps which were taken by the State Government,
which according to him, amounted to due compliance:
24
Page 25 (i) The direction of this Court was to restore the
Notification No. 994 dated 28.6.2007 within 4
weeks. Orders of postings were issued as per the
said notification/list. Upon scrutiny some
inadvertent mistakes were found, which have
been rectified vide office notification dated
10.02.2014.
(ii)The postings are as Principal of Schools and
Lecturers of Training Colleges which are the
promotional posts. As regards other allegation
relating to their supervision/control, the
department vide notification No.436 dated
10.02.2014 has in clear terms stated in paragraph
no.4 of the notification that the matter related to
promotion/charge/transfer-posting/retiremental
benefit/service confirmation of merged officer of
Bihar education service Grade-II (merged officer of
subordinate education service teaching branch)
shall be dealt with under the directorate of
administration of education department.
25
Page 26 (iii) The petitioners have been posted on
promotional post and previous consequential
orders have been restored.
(iv) The petitioners have admitted that all the
financial benefits of merger have been granted
and paid.
(v)Mr. Rao further pointed out that admittedly
merger of the Cadre has taken place. Moreover
this merger is w.e.f. 1977 and all the benefits of
merger including the time bound promotions or
the ACP have been granted accordingly. All the
merged employees who are in service have been
granted posting on higher post and pay-scale.
(vi)He also submitted that the allegation regarding
reduction in pension or regarding ACP is only an
apprehension. A categorical statement was made
at the Bar that there shall not be any reductions in
pensions and as per finance department decisions
26
Page 27 the person retiring after 09.08.1990 shall also be
granted 3
rd
ACP.
13. According to Mr. Rao, the aforesaid steps taken by the
administration were sufficient to demonstrate that the
judgment of this Court was complied with. He submitted that
under the garb of the present Contempt Petitions, the
Petitioners were now challenging the rules framed in the year
2014 which was not permissible as validity of the rules could
not be gone into in contempt proceedings. Mr. Rao justified
the framing of these rules on the ground that it had become
necessary because of the merger of the two cadres and in
fact 2014 Rules amounted to giving effect to merger that had
been effected. If the Petitioners had any grievance against
any of the provisions of 2014 Rules, the remedy for the
Petitioners was to file separate proceedings. It was further
submitted that the members of the Petitioner Association
belonged to Teaching Cadre and had worked only as teachers
throughout their service with no administrative experience.
Therefore, they could not take any posting on administrative
side because of lack of such an experience. Keeping in mind
27
Page 28 this position, 2014 Rules were framed and postings had been
given as per those rules. It was also submitted that the
members of the Petitioner Association were due to retire in
one or two years and at the fag end of their career they could
not be given administrative assignments. Moreover, the rank
and pay scale is same and therefore the Petitioners are not
affected adversely in any manner.
14.Mr. Rao also attempted to justify the provisions made in
the 2014 Rules, which he submitted, was the prerogative of
the employer. His argument was that direction of this Court
was only to merge the cadre. However, what further benefits
are to be given and the entitlement of the officers in the
merged cadre could not be gone into in the Contempt
Petitions. Moreover, it was for the Government to decide as
to what provisions are to be made for the career progressions
of the merged employees from two cadres. For that,
Government had complete freedom. To achieve this, 2014
Rules had been framed. He thus, argued that there was no
willful disobedience.
28
Page 29 15.Mr. Rao referred to the following judgments:
J.S. Parihar v. Ganpat Duggar and others, [1996
(6) SCC 291]
“6. The question then is whether the Division
Bench was right in setting aside the direction
issued by the learned Single Judge to redraw the
seniority list. It is contended by Mr S.K. Jain, the
learned counsel appearing for the appellant, that
unless the learned Judge goes into the
correctness of the decision taken by the
Government in preparation of the seniority list in
the light of the law laid down by three Benches,
the learned Judge cannot come to a conclusion
whether or not the respondent had wilfully or
deliberately disobeyed the orders of the Court as
defined under Section 2(b) of the Act. Therefore,
the learned Single Judge of the High Court
necessarily has to go into the merits of that
question. We do not find that the contention is
well founded. It is seen that, admittedly, the
respondents had prepared the seniority list on 2-
7-1991. Subsequently promotions came to be
made. The question is whether seniority list is
open to review in the contempt proceedings to
find out whether it is in conformity with the
directions issued by the earlier Benches. It is seen
that once there is an order passed by the
Government on the basis of the directions issued
by the court, there arises a fresh cause of action
to seek redressal in an appropriate forum. The
preparation of the seniority list may be wrong or
may be right or may or may not be in conformity
with the directions. But that would be a fresh
cause of action for the aggrieved party to avail of
the opportunity of judicial review. But that cannot
be considered to be the wilful violation of the
order. After re-exercising the judicial review in
29
Page 30 contempt proceedings, a fresh direction by the
learned Single Judge cannot be given to redraw
the seniority list. In other words, the learned
Judge was exercising the jurisdiction to consider
the matter on merits in the contempt
proceedings. It would not be permissible under
Section 12 of the Act. Therefore, the Division
Bench has exercised the power under Section 18
of the Rajasthan High Court Ordinance being a
judgment or order of the Single Judge; the
Division Bench corrected the mistake committed
by the learned Single Judge. Therefore, it may not
be necessary for the State to file an appeal in this
Court against the judgment of the learned Single
Judge when the matter was already seized of the
Division Bench.”
Indian Airports Employees’ Union v. Ranjan
Chatterjee and Another, [(1999) 2 SCC 537]
“7. It is well settled that disobedience of orders of
the court, in order to amount to “civil contempt”
under Section 2(b) of the Contempt of Courts Act,
1971 must be “wilful” and proof of mere
disobedience is not sufficient (S.S. Roy v. State of
Orissa). Where there is no deliberate flouting of
the orders of the court but a mere
misinterpretation of the executive instructions, it
would not be a case of civil contempt ( Ashok
Kumar Singh v. State of Bihar).
8. In this contempt case, we do not propose to
decide whether these six sweepers do fall within
the scope of the notification dated 9-12-1976 or
the judgment of this Court dated 11-4-1997. That
is a question to be decided in appropriate
proceedings.
30
Page 31 9. It is true that these six sweepers’ names are
shown in the annexure to WP No. 2362 of 1990 in
the High Court. But the question is whether there
is wilful disobedience of the orders of this Court.
In the counter-affidavit of the respondents, it is
stated that there is no specific direction in the
judgment of this Court for absorption of these
sweepers, if any, working in the car-park area,
and that the directions given in the judgment
were in relation to the sweepers working at the
“International Airport, National Airport Cargo
Complex and Import Warehouse”. It is stated that
the cleaners employed by the licensee in charge
of maintenance of the car-park area do not, on a
proper interpretation of the order, come within
the sweep of these directions. It is contended that
even assuming that they were included in the
category of sweepers working at the
“International Airport”, inasmuch as they were
not employed for the purpose of cleaning, dusting
and watching the buildings, as mentioned in the
notification abolishing contract labour, they were
not covered by the judgment. It is also contended
that the case of such sweepers at the car-park
area was not even referred to the Advisory Board
under Section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970 and it was
highly doubtful if they were covered by the
notification.
10. On the other hand, learned Senior Counsel for
the petitioners contended that going by the map
of the Airport, it was clear that these sweepers at
the car-park area were clearly covered by the
notification and the judgment. The fact that the
names of these six employees were shown in the
annexures to the writ petition was proof that they
were covered by the judgment. The licensee is in
the position of a contractor.
31
Page 32 11. In our view, these rival contentions involve an
interpretation of the order of this Court, the
notification and other relevant documents. We are
not deciding in this contempt case whether the
interpretation put forward by the respondents or
the petitioners is correct. That question has to be
decided in appropriate proceedings. For the
purpose of this contempt case, it is sufficient to
say that the non-absorption of these six sweepers
was bona fide and was based on an interpretation
of the above orders and the notification etc. and
cannot be said to amount to “wilful disobedience”
of the orders of this Court.”
All India Anna Dravida Munnetra Kazhagam v. L.K.
Tripathi and others, [(2009) 5 SCC 417]
“78. We may now notice some judgments in
which the courts have considered the question
relating to burden of proof in contempt cases. In
Bramblevale Ltd., Re Lord Denning observed: (All
ER pp. 1063 H-1064 B)
“A contempt of court is an offence of a criminal
character. A man may be sent to prison for it. It
must be satisfactorily proved. To use the time-
honoured phrase, it must be proved beyond
reasonable doubt. It is not proved by showing
that, when the man was asked about it, he told
lies. There must be some further evidence to
incriminate him. Once some evidence is given,
then his lies can be thrown into the scale against
him. But there must be some other evidence. …
… Where there are two equally consistent
possibilities open to the court, it is not right to
hold that the offence is proved beyond reasonable
doubt.”
32
Page 33 79. In Mrityunjoy Das v. Sayed Hasibur Rahaman
the Court referred to a number of judicial
precedents including the observations made by
Lord Denning in Bramblevale Ltd., Re and held:
(SCC p. 746, para 14)
“14. … The common English phrase ‘he who
asserts must prove’ has its due application in the
matter of proof of the allegations said to be
constituting the act of contempt. As regards the
‘standard of proof’, be it noted that a proceeding
under the extraordinary jurisdiction of the court in
terms of the provisions of the Contempt of Courts
Act is quasi-criminal, and as such, the standard of
proof required is that of a criminal proceeding and
the breach shall have to be established beyond
reasonable doubt.”
80. In Chhotu Ram v. Urvashi Gulati a two-Judge
Bench observed: (SCC p. 532, para 2)
“2. As regards the burden and standard of proof,
the common legal phraseology ‘he who asserts
must prove’ has its due application in the matter
of proof of the allegations said to be constituting
the act of contempt. As regards the ‘standard of
proof’, be it noted that a proceeding under the
extraordinary jurisdiction of the court in terms of
the provisions of the Contempt of Courts Act is
quasi-criminal, and as such, the standard of proof
required is that of a criminal proceeding and the
breach shall have to be established beyond all
reasonable doubt.”
81. In Anil Ratan Sarkar v. Hirak Ghosh the Court
referred to Chhotu Ram v. Urvashi Gulati
and
observed: (SCC p. 29, para 13)
“13. … The Contempt of Courts Act, 1971 has
been introduced in the statute book for the
purposes of securing a feeling of confidence of
the people in general and for due and proper
administration of justice in the country —
33
Page 34 undoubtedly a powerful weapon in the hands of
the law courts but that by itself operates as a
string of caution and unless thus otherwise
satisfied beyond doubt, it would neither be fair
nor reasonable for the law courts to exercise
jurisdiction under the statute.””
16. In rejoinder Mr. Patwalia submitted that even a cursory
glance into the 2014 Rules and the provision made therein
would amply bear out that the whole intention of the Rule
makers was to frustrate the effect of the judgment. According
to him that would amount to contempt and from this angle
the Court was competent to examine the matter even in
Contempt Petitions. He further submitted that the argument
raised now were precisely the grounds on which the
Government had opposed the merger but the Court had
rejected those arguments. Therefore, under the garb of
implementation of that judgment, same very grounds could
not be raised to justify making such provisions in 2014 Rules.
He argued that the Report of the Committee which was relied
upon by the Respondents in fact rejected the entire issues of
merger. He referred to certain paras from the Report to
support his submission. He also made the grievance that
34
Page 35 initially, after the rendering of the judgment of this Court, the
Government had started implementing the same and had
even passed certain orders creating additional post to give
effect to the judgment. So much so even seniority was
finalized. However, thereafter the administration turned
hostile and bent backward. Therefore, the entire gamut was
open to judicial review even in the contempt proceedings. He
further submitted that there was ample power with this Court,
particularly under Article 142 of the Constitution, to do
complete justice in the matter as held in Delhi Development
Authority v. Skipper Construction Co. (P) Ltd. and Another;
(1996) 4 SCC 622.
“16. In Vinay Chandra Mishra, this Court dealt
with the scope and width of the power of this
Court under Article 142. After referring to the
earlier decisions of the Court in extenso, it is held
that:
“… statutory provisions cannot override the
constitutional provisions and Article 142(1)
being a constitutional power it cannot be
limited or conditioned by any statutory
provision”.
It is also held that:
35
Page 36 “… the jurisdiction and powers of this Court
under Article 142 which are supplementary in
nature and are provided to do complete
justice in any matter ….”
In other words, the power under Article 142 is
meant to supplement the existing legal framework
— to do complete justice between the parties —
and not to supplant it. It is conceived to meet
situations which cannot be effectively and
appropriately tackled by the existing provisions of
law. As a matter of fact, we think it advisable to
leave this power undefined and uncatalogued so
that it remains elastic enough to be moulded to
suit the given situation. The very fact that this
power is conferred only upon this Court, and on no
one else, is itself an assurance that it will be used
with due restraint and circumspection, keeping in
view the ultimate object of doing complete justice
between the parties. Now, coming to the facts of
the case before us, the question is not what can
be done, but what should be done? We are of the
opinion that even while acting under Article 142 of
the Constitution of India, we ought not to reopen
the orders and decisions of the courts which have
become final. We do not think that for doing
complete justice between the parties before us, it
is necessary to resort to this extraordinary step.
We are saying this in view of the contention urged
by S/Shri Salve and Dhavan that since the DDA
has taken over not only the plot but also the
construction raised by Skipper thereon (free from
all encumbrances) in addition to the sum of Rs
15.89 crores (said to have been paid by Skipper
towards the sale consideration of the said plot),
the monies required for paying the persons
defrauded should come out of the kitty of DDA. It
must be remembered that the plot, the
construction raised thereon and the monies
36
Page 37 already paid towards the sale consideration of the
said plot have all vested absolutely in the DDA
free from all encumbrances under and by virtue of
the decision of the Delhi High Court dated 21-12-
1990/14-1-1991, which decision has indeed been
affirmed by this Court by dismissing the special
leave petition preferred against it. It may not be
open to us to ignore the said decisions and orders,
including the orders of this Court, and/or to go
behind those decisions/orders and say that the
amount received by DDA towards sale
consideration from Skipper or the value of the
construction raised by Skipper on the said plot
should be made available for paying out the
persons defrauded by Skipper. We must treat
those decisions and orders as final and yet devise
ways and means of doing complete justice
between the parties before us.
The contemner should not be allowed to enjoy or
retain the fruits of his contempt.”
17. He also referred to the judgment in the case of Ashish
Ranjan v. Anupma Tandon and another; (2010) 14 SCC 274.
“20. In addition to the statutory provisions of the
Contempt of Courts Act, 1971 the powers under
Articles 129 and 142 of the Constitution are
always available to this Court to see that the
order or undertaking which is violated by the
contemnor is effectuated and the court has all
powers to enforce the consent order passed by it
and also issue further directions/orders to do
complete justice between the parties. Mutual
settlement reached between the parties cannot
come in the way of the well-established principles
in respect of the custody of the child and,
37
Page 38 therefore, a subsequent application for custody of
a minor cannot be thrown out at the threshold
being not maintainable. It is a recurring cause
because the right of visitation given to the
applicant under the agreement is being
consistently and continuously flouted. Thus, the
doctrine of res judicata is not applicable in
matters of child custody.”
18.He concluded his submissions by arguing that there
were three rounds of litigation earlier and the Petitioners
were fighting for justice since 1977 when decision was taken
by the Government to merge the two cadres. By framing
2014 Rules, the Government negated the effect of merger
thereby leaving the petitioners in lurch once again and now
the plea was taken to approach the Court again with fourth
round of litigation. He pointed out that during this period,
most of the members of the Petitioner Association had retired
and very few who were left were going to retire in near
future. The whole intention of the authorities was to tire out
these petitioners and frustrate their efforts which should not
be countenanced.
19. At the outset, we may observe that we are
conscious of the limits within which we can undertake the
38
Page 39 scrutiny of the steps taken by the respondents, in these
Contempt proceedings. The Court is supposed to adopt
cautionary approach which would mean that if there is a
substantial compliance of the directions given in the
judgment, this Court is not supposed to go into the nitty gritty
of the various measures taken by the Respondents. It is also
correct that only if there is willful and contumacious
disobedience of the orders, that the Court would take
cognizance. Even when there are two equally consistent
possibilities open to the Court, case of contempt is not made
out. At the same time, it is permissible for the Court to
examine as to whether the steps taken to purportedly comply
with the directions of the judgment are in furtherance of its
compliance or they tend to defeat the very purpose for which
the directions were issued. We can certainly go into the issue
as to whether the Government took certain steps in order to
implement the directions of this Court and thereafter
withdrew those measures and whether it amounts to non-
implementation. Limited inquiry from the aforesaid
perspective, into the provisions of 2014 Rules can also be
39
Page 40 undertaken to find out as to whether those provisions amount
to nullifying the effect of the very merger of BSES with BES.
As all these aspects have a direct co-relation with the issue as
to whether the directions are implemented or not. We are,
thus, of the opinion that this Court can indulge in this limited
scrutiny as to whether provisions made in 2014 Rules
frustrate the effect of the judgment and attempt is to achieve
those results which were the arguments raised by the
respondents at the time of hearing of C.A. No. 8226-8227 of
2012 but rejected by this Court. To put it otherwise, we can
certainly examine as to whether 2014 Rules are made to
implement the judgment or these Rules in effect nullify the
result of merger of the two cadres.
20.As noted above, the resolution of merger earlier was
passed on 7.7.2006 after rendition of the judgment dated
19.4.2006 by this Court in the second round of litigation. This
was preceded by a Note for the Cabinet regarding merger. A
perusal of this Cabinet Note shows that the total history about
the various proceedings culminating into judgment dated
19.4.2006 is given. We have to keep in mind that original
40
Page 41 Resolution for merger is Resolution No. 3512 dated 11.4.1977
which is directed to be implemented. In the Cabinet Note
dated 3.7.2006 it is noted as under:-
“In the year 1977, the number of total created/
sanctioned post of the male and female teachers
was 2465, against which total working strength
were 1336, which decreased to 880 by the year
2006. Out of this if 301 units belonging to
Jharkhand is deducted, it comes to 579 only.
14.It is to be noted that in view of the provisions
contained in resolution No. 3521 dated 11.4.1977
several departments have merged the lower
scales with the higher ones. But the incumbents
of this cadre of the Education Deptt. have been
denied their promotions after 1977 which was
otherwise due. Where as the incumbents of
Inspecting Branch of this cadre are reported to
have been promoted upto 2001.”
21.Thereafter, the proposal for creation of more posts is
contained in Para 15 which reads as under:
“15. Therefore,
consequent upon complying the orders of the
Hon'ble Courts it is proposed to upgrade 2465
created/ sanctioned posts of teachers of
subordinate education service male and female
cadre to Bihar Education Service Class-2 w.e.f.
1.1.1977.”
41
Page 42 22.Resolution to this effect was passed on 7.7.2006.
Thereafter, combined gradation list of the merged cadre of
BES dated 17.8.2007 was issued. In this consolidated
seniority list of officers of combined BES Service, the
employees of both the merged cadre is shown as per their
seniority. This was the precise manner in which the
authorities had understood the scheme of merger and acted
earlier pursuant to the judgment dated 19.4.2006. Directions
contained in the judgment dated 23.11.2012 in C.A. Nos.
8226-8227 of 2012 are reiteration of earlier judgment dated
19.4.2006. In fact, it is specifically held that Resolution dated
7.7.2006 is valid and later Resolution dated 17.1.2008
annulling the earlier Resolution dated 7.7.2006 has been
quashed. It thus becomes obvious that the respondents were
to revive the earlier order/ Resolution of merger as well as
combined gradation list issued earlier. These remedial steps
were necessitated to carry out the direction of the judgment.
Let us see whether such steps are taken now or 2014 Rules
are in the teeth of the aforesaid directions.
42
Page 43 23.We find that Cabinet proposal dated 1.3.2013 regarding
merger was prepared on 1.3.2013 which referred to the
earlier Resolution No. 1209 dated 7.7.2006, in the following
manner:
“At the time of issuance of Resolution No. 1209
dated 7.7.2006 the estimated amount of
expenditure was 64 crore. Presently this amount
is Rs. 104 crores.
(I)In compliance of the order of the
Supreme Court dated 23.11.2012, it is
proposed that the Resolution No. 1209 dated
7.7.2006 be revived and Notification No. 1855
dated 19.11.2007 be annulled.
(ii)Consequential benefits are proposed to
be given to the cadre of teachers of Bihar
Subordinate Education Service (Teaching
Branch) Male and Female after merger.
Approval of Finance Departments has been
obtained.”
24.Significantly, Resolution dated 2.4.2013 passed by the
Government revived earlier Resolution No. 1209 dated
7.7.2006 and withdraws Notification No. 1855 dated
18.11.2007. So far so good. The only thing that remained was
to revive the combined seniority/ gradation list also which
was issued on 17.8.2007 and give further benefits of
promotion, postings, ACP etc. based thereupon.
43
Page 44 25.We find that first order dated 24.4.2013 was issued for
grant of ACP. While giving this benefit, seed of mischief is
sown as is clear from the following portion therein:
“For implementation of the order of the Supreme
Court dated 23.11.2012, the grant of
consequential benefits with effect from 1.1.1977
to the merged officers is being examined. In the
course of such examination, it has been found
prima facie that before issuing Resolution No.
1209 dated 7.7.2006, all points were not fully
considered.”
26.It is a matter of record that Resolution No. 1209/2006
was passed by the Cabinet which means that it was the
decision at the highest level. It was not open to some officer
sitting in the Education Department to make such comments
by exhibiting his superior knowledge about the purported
issued, that too in an order granting ACP to the merged
teachers as a consequence of merger. This was the starting
point to reopen the settled issue of merger of two cadres.
27.We would like to point out here that officers of erstwhile
BES i.e. BES Association had filed I.A. 25-26 of 2013 in this
very decided appeal i.e. C.A. No. 8226-8227 of 2012 seeking
44
Page 45 to rake up the same issue about the gradation list. This was
specifically contended that merger takes effect from the date
when posts are created. Apprehension was expressed that
affect the vested right of seniority of the members of BES
Association (BESA) who are already in the cadre, particularly
Respondent Nos. 2, 3 and 51 and some other members of
BESA. It was mentioned that some of the officers were
holding the post of sub-Director or RDDE who were appointed
in December, 1983 and they may have to face reversion.
However, this I.A. was dismissed by the Court.
28.Notwithstanding the aforesaid, we find that 2014 Rules
seek to achieve the same result which was neither the intent
of merger nor was permitted by this Court at the instance of
BESA in their application. On the contrary, as noted below, by
an ingenious method, effect of merger is undone thereby.
29.These 2014 Rules created four sub-cadres within BES
which are as under:
“3.Constitution of service: The Bihar Education
Service shall be a state service. There shall be
following four sub cadres in this service:-
45
Page 46 a) Bihar Education Service (Administration
sub cadre)
b) Bihar Education Service (Teaching sub
cadre), (Dying Cadre)
c) Bihar Education Service (Research &
Training sub cadre) and
d) Bihar Education Service (Isolated sub
cadre).”
Rule 4 states that none of the officers of one sub-cadre
will be transferred and posted in another sub cadre.
30.It follows from the above that the teaching sub cadre,
to which category members of the petitioner association
belong to, is not only isolated again but even treated as
“dying cadre”. In order to ensure that members of BESA
continue to enjoy their promotions which were given earlier
and those are not disturbed, it is further provided that
persons belonging to teaching cadre namely the petitioners
would not be transferred and posted in administrative sub
cadre. What BESA attempted to achieve by means of C.A.
Nos. 25-26/2013 and was declined by this Court, is now
accomplished with this methodology.
46
Page 47 31.To add insult to the injury caused to the petitioner, Rule
27 of the Rules gives option to the members of other sub
cadre for inclusion in a different cadre fulfilling the prescribed
qualifications, but no such option is given to the teaching
cadre. This Rule 27 reads as under:
“27.The officers appointed/ promoted and
working on the above posts of this sub cadre and
having the prescribed qualification of these posts
shall give the option for inclusion in this sub cadre.
In case of having no qualification or not giving
option for inclusion in this sub cadre or in case of
working on deputation basis, they shall be
reverted back to their own cadre, if they are
appointed on these posts, they shall remain on
their posts but they shall not get the benefit of
regular promotion in this sub cadre.”
32.By placing the erstwhile BSES teachers in teaching sub
cadre, are allowed to go upto the position of Principal which is
the highest promotional post in their sub cadre. On the other
hand BES Officers who are put in administrative sub cadre
would continue to control the schools. Moreover, each sub
cadre is to have its separate seniority list. It means the
combined gradation list is given a go bye and even by
bringing BSES in BES, segregation between the two cadres is
achieved with these provisions. To our mind the aforesaid
47
Page 48 provisions of 2014 Rules negate the very effect of merger
which was envisaged way back in the year 1977. In spite of
succeeding in three rounds of litigation, the petitioners are
not only treated as a distinct and separate class with the
creation of the aforesaid sub cadre, the benefit which could
accrue to them in a combined seniority list, as a result of
merger, have been snatched away from them. What was
given to these petitioners by the respondents in compliance
of the judgment earlier, has now been taken away with the
promulgation of 2014 Rules.
33.Lest we may be misunderstood, we make it clear that it
is the prerogative of the Government to frame service rules in
one or the other manner. In case provisions contained in
those Rules offend the rights of any of the employees, they
have an independent right to challenge the same which can
be judicially scrutinized by the Courts, applying the settled
principles of judicial review. However, if such an exercise is
undertaken on the premise that it is done to comply with the
directions contained in the judgment and the Court finds that,
48
Page 49 ex facie, it is not so and on the contrary offends the directions
in the judgment, such a move cannot be countenanced.
34.It is also crystal clear and borne from the record that
the whole exercise was done to go out of way to help BES
Officers. In fact, Mr. Rao even argued on these lines by
pointing out that the promotions in BES cadres were made in
two stages i.e. upto 31.12.1995 in one stage and from
1.1.1996 till now in the second stage. From 1.1.1996 no
promotion was given to BES because it was need based and
since the posts were to be identified, only the additional
charge was given to them. What is lost sight of, in this entire
arguments, is that, the merger is to take effect from 1977
and even Resolution to that effect is passed by the Cabinet.
Further once that is done and the combined gradation list
issued in the year 2007 was to be necessarily revived, further
steps were to be taken from that stage. This Court is not
suggesting that those of the petitioners who become senior to
their counterparts in BES, should be given automatic
promotion to second or third stages which was the
apprehension expressed. These officers, as a result of merger
49
Page 50 and combined gradation list, would take their rightful place
and thereafter their career progression would be permissible
as per the Rules. For this purpose it was open to the
Government to frame the Rules and make provisions laying
down eligibility conditions. However, by well crafted
technique of creating sub cadres and treating teaching
category as dying sub cadre, almost the same result, which
was the position before the merger, is achieved. It is obvious
that such provisions in 2014 Rules are made with the sole
intention to frustrate the effect of the judgment. We have no
hesitation to say that this would amount to contempt of the
Court.
35.Having held so, let us consider as to what steps are
required for proper implementation of the judgment. Since
the statement is made by Mr. Rao, which is contained in
Government written response as well, that the petitioner
would be given all due benefits of ACP and their pension will
also be not reduced, we take to that statement on record.
What remains is the restoration of combined gradation list
and posting of the officers of the petitioner's association and
50
Page 51 their promotions on that basis. Having regard to the
concession made by Mr. Patwalia in the form of solution
suggested by him, it is not necessary for us to give directions
to the administration to make all consequential amendments
in the 2014 Rules. Mr. Patwalia, submitted that if Rule 27 is
amended to give option to the teachers as well, the
petitioners would be satisfied with the same. We are of the
opinion that it is a very fair suggestion to solve the problem.
36.We thus, dispose of these Contempt Petitions with the
following directions:
(i)The combined gradation list issued on
17.8.2007 is revived and is to be acted upon and
implemented by the Respondents/ Authorities, or
Suitable amendment in the alternative be made in
Rule 27 of 2014 Rules giving option to the
teachers also, as permitted to other sub cadres.
(ii)It would be open to the respondents not to
demote those BES Officers who are holding
administrative assignment on the higher posts.
51
Page 52 However, that would not be at the cost of those
petitioners belonging to teaching sub cadre who,
as a result of combined seniority list, have
become senior to BES Officers. We leave it to the
Government to find whatever solution they have
to deal with this issue.
(iii)Consequential benefits which may accrue to
the petitioners shall be accorded to them.
(iv)The entire exercise be done and
accomplished within a period of 3 months.
(v)On failure on the part of the respondents/
administration to take the aforesaid steps, it
would be open to the petitioners to move an I.A. in
these very Contempt Petitions seeking its revival
with prayer to proceed further against the
respondents in accordance with law.
(vi)The petitioner shall also be entitled to the
costs of these proceedings, which we fix at Rs.
50,000/-.
52
Page 53 ……………………....……J.
[Surinder Singh
Nijjar]
...………………………….J.
[A.K. Sikri]
New Delhi
May 07,2014
53
Page 54 54
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