“method of recruitment” and “employer’s capacity to pay” = Sarva Shiksha Abhiyan, introduction of Article 21A in the Constitution and coming into force of the Right of Children to Free and Compulsion Education Act, 2009 (‘RTE Act’, for short), the State was required to Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc. 3 State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee, Munger & Ors. 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 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.= We, therefore, have to proceed on the following basic premise:- a) 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 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 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 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. 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 above. 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 the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. – allowed the appeals filed by state

Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
1
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4862 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO.20 OF 2018)
STATE OF BIHAR & ORS. …Appellants
VERSUS
THE BIHAR SECONDARY TEACHERS STRUGGLE
COMMITTEE, MUNGER & ORS. …Respondents
WITH
CIVIL APPEAL NO. 4872 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.708 OF 2018)
CIVIL APPEAL NO. 4867 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.238 OF 2018)
CIVIL APPEAL NO. 4866 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.242 OF 2018)
CIVIL APPEAL NO. 4864 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.169 OF 2018)
CIVIL APPEAL NO. 4865 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.162 OF 2018)
CIVIL APPEAL NO. 4869 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.254 OF 2018)
CIVIL APPEAL NO. 4863 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.164 OF 2018)
Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
2
State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
Munger & Ors.
CIVIL APPEAL NO. 4868 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.251 OF 2018)
CIVIL APPEAL NO. 4870 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.240 OF 2018)
CIVIL APPEAL NO. 4871 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.572 OF 2018)
J U D G M E N T
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.
  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 Compulsion
    Education Act, 2009 (‘RTE Act’, for short), the State was required to
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    3
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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. 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 entrusted with the
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    4
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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
    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 for
    appointment, permission, and disciplinary action. Rule 6 dealt with cadre
    of teachers and was to the following effect:
    “6. Cadre of teachers:-
  6. There shall be Dist. Cadre of junior category teachers,
    of whose controlling officer shall be Dist. Education
    Officer.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    5
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  7. There shall be Commissionaire Cadre of the teachers
    of inferior and superior category of whose controlling
    officer shall be Regional Director.
  8. There shall be State Cadre of Headmaster whose
    controlling officer shall be Director.”
  9. 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
    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 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 justice;
    (b) The implementation of schemes for economic
    development 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”.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    6
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  10. By the Constitution (74th Amendment Act, 1992) Part IXA
    (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.
    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 –
    “(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 –
    (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;
    (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
    No.13 states, “Promotion of cultural, educational and aesthetic aspects”.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    7
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  11. 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:-
    “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.”
  12. By Bihar Act 25 of 2006, 1981 Act was amended. Section 2 of the
    Amending Act was as under:
    “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, 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.
  13. In May 2006, two draft Notes for approval of the Cabinet were
    prepared. The Notes dealt with issues like requirements to increase 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:-
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    8
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    “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 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, 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
    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.”
    “9. In new rules basic changes are being made in salary
    of the 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 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 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.
  14. New rule shall not have any effect in salary of the
    teachers and in terms and condition of their appointments
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    9
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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.”
    … … …
    “5. Difficulties in previous appointment procedure:- In
    the centralized examination test as adopted earlier has
    following difficulties in selection and appointment of
    teachers.
    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
    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.
  15. 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. Movable and
    immovable property of school, Training of teachers,
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    10
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    construction of school building, syllabus/study materials,
    construction of study materials, evaluation etc, shall be
    under the control of state Government like in past.”
    … … …
    “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 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 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.”
  16. Thereafter, Bihar Panchayat Elementary Teachers (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 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    11
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    thousands of new elementary schools and employment of
    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 73rd 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.”
    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 Teachers employed at block level.)
    (B) “Panchayat Teachers” (Teachers employed at
    Panchayat level).
  17. Employment of Panchayat Elementary Teachers-
    (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 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.
    (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.”
    Rule 9 dealt with “process of employment” and stated that the
    vacant posts would be advertised within the block/panchayat, whereafter
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    12
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 panel as
    under:-
    “7. Constitution and Approval of Committee for
    preparation of panel:
    Panel will be prepared on the basis of application forms
    obtained by the following Committee:
    (A) For Block teacher and physical Teacher:-
    (i) Pramukh of Panchayat samiti-Chairman
    (ii) Executive Officer panchayat Samiti – Member.
    (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:
    (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.
    (iii) The member of Panchayat samiti whose area covers
    most 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.
    But the term of the elected members of both the
    above committees will of one year.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    13
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Note: – In case of (non-existence) non-constituent of
    the Education Committee of panchayat samiti and
    Gram 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 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.
    (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 (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
    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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    14
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    employed under previous circulars, orders, instructions were deemed to be
    employed as panchayat teachers under these Rules.
  18. On 11.07.2006, two sets of Rules were framed by the State. 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:-
    “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 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 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
    Secondary and Higher Secondary Teachers (Employment and Service
    Conditions) Rules 2006. Rule 4 dealt with the subject of eligibility for
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    15
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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:
    “Constitution of Committee for the preparation of panel and its
    approvalOn the basis of received applications, the following committee
    shall prepare the panel:
    (a) Committee for Municipal Panchayat/Municipal Board
  19. Chairman of Municipal Panchayat
    /Municipal Board
    President
  20. One selected Member of Education
    Committee of Municipal panchayat/
    Municipal board (In case of male
    president, the selected member shall be
    female)
    Member
  21. Executive Officer of Municipal
    Panchayat/ Municipal Board
    Member
    4
    .
    Concerned Sub-divisional
    Officer
    Member
    Secretary
    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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    16
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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
  22. Mayor of Municipal Corporation President
  23. One selected member of Education
    Committee of Municipal Corporation
    (In case of male president, the selected
    member shall be female)
    Member
  24. Executive Officer of Municipal
    Corporation
    Member
    4 Concerned District Education Officer Member
    Secretary
    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.
    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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    17
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    competition of 3 years. Under Rule 10, the posts of Municipal Secondary
    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 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
    Conditions) Rules, 2006. Rule 4 dealt with the subject of eligibility for
    appointment to the posts of District Board Secondary Teachers under PartA 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 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-
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    18
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    On the basis of received applications, the following Committee
    shall prepare the panel:
    a Chairman of District Board President
    b One selected Member of Education
    Committee of District Board
    (In case of male President, the selected
    member shall be female)
    Member
    C Deputy Development Commissioner 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 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 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
    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 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:-
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    19
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    “These Rules shall not affect the salary and service
    conditions of the teachers of Government, Nationalised
    Secondary and Higher Secondary Schools appointed under
    the provisions of the previous Rules.”
  25. Thus, three sets of Rules came into effect in July, 2006. Bihar
    Panchayat Elementary Teachers (Employment and Service Conditions)
    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,
    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 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 governed
    under the provisions of the respective sets of 2006 Rules as aforesaid.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    20
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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.
    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 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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    21
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  26. The RTE Act enacted by the Parliament to provide for free 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
    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 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;
    (B) A Union Territory having legislature, the
    Government of that Union territory;
    … … …
    (f) “elementary education” means the education from
    first class to eighth class;
    … … …
    (n) “school” means any recognised school imparting
    elementary education and includes –
    (i) a school established, owned or controlled by the
    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;
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    22
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    (iii) a school belonging to specified category; and
    (iv) an unaided school not receiving any kind of aid or
    grants to meet its expenses from the appropriate
    Government or the local authority;”
    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, 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.
  27. Sharing of financial and other responsibilities. – (1)
    The 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 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.
    (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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    23
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Government under sub-section (3), and its other resources,
    be responsible to provide funds for implementation of the
    provisions of the Act.
    (6) The Central Government shall-
    (a) develop a framework of national curriculum with
    the help of academic authority specified under
    Section 29;
    (b) develop and enforce standards for training of
    teachers;
    (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 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. –
    (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 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:
    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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    24
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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.
    (3) The salary and allowances payable to, and the terms
    and conditions of service of, teacher shall be such as may
    be prescribed.
    … … …
  28. 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 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 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:-
    “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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    25
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    them in order to create 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:-
    (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, gratuity, provident fund, and other prescribed
    benefits of teachers shall be at par for similar qualification,
    work and experience.”
  29. In exercise of powers conferred by Section 38 of the RTE Act, State
    of Bihar made, The Bihar State Free and Compulsory Education of
    Children Rules, 2011. The concept of neighbourhood was 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 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:
    (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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    26
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    for young children in the approach from their homes to the
    school, the State Government 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 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/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.
    (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 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.”
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    27
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  30. (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 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 teachers to stay in teaching profession for
    long period.”
  31. 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:-
    “(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 VIII level.
    (iii)“Elementary school” means government/
    government taken over primary and Middle schools.”
    Rule 5 prescribed minimum qualifications for employment in respect
    of teachers for classes I to V and classes VI to VIII. Rule 15 dealt with
    consolidated pay of the teachers as under:-
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    28
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    “15. Service Conditions of Niyojit teachers.-(a) Consolidated
    Pay.-(i) the Panchayat elementary teachers will get the
    consolidated pay as follows:-
     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
     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.
    (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
    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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    29
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    the seniority list of teachers having at least 5 years of minimum 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.
  32. 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 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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    30
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    the State was withdrawn. Thereafter, the State attempted to fill the
    vacancies in terms of 2006 Rules which led to the filing of Contempt
    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 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 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 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, it
    was brought to our notice that on account of changes in
    the 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 available.
    1(2014) 11 SCC 405
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    31
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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.
  33. 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 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.”
    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.
  34. 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    32
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Single Judge of the High Court dismissed said Writ Petition by his
    judgment and order dated 5.4.2013. It was observed:-
    “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 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 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 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.”
  35. Around this time, several other writ petitions were filed, being
    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
    2013 filed by the Bihar Secondary Teachers Struggle Committee, Munger.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    33
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  36. 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:-
    “13. That the comparative difference between the aforesaid two
    categories of teachers is more apparent from the tabular chart
    prepared hereinafter:-
    Sl.
    No.
    Head Earlier District
    Cadre Teacher
    Niyojit Teacher
  37. Cadre District/Division Respective Panchayat,
    Block, Nagar Panchayat,
    Nagar Parishad, Nagar
    Nigam or Zila Parishad, as
    the case may be.
  38. Status Employee of State
    Government
    Employee of respective
    institution of Panchayati
    Raj Institution/Urban
    Local bodies/Zila Parishad
  39. Nature
    of
    Cadre
    Dying/diminishing
    cadre
    To continue
  40. Nomen
    clatur
    e of
    post
    Assistant Teacher Panchayat
    Teacher/Prakhand Teacher/
    Nagar Teacher/Zila
    Parishad Madhyamic
    Teacher/Nagar Parishad
    Madhyamic Teacher/Zila
    Parishad Uchhtar
    Madhyamic Teacher/Nagar
    Parishad Uchttar
    Madhyamic Teacher
  41. Appoi
    nting
    Autho
    rity
    District
    Superintendent of
    Education now
    District Education
    Officer/Director,
    Secondary
    Education
    Respective PRI’s/Urban
    Local Bodies/Zila Parishad
  42. Mode
    of
    BPSC based on
    competitive
    Based on Marks obtained
    in academic course and
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    34
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Recru
    itment
    examination/Erstw
    hile Vidyalaya
    Seva Board
    training course
  43. Rules Bihar Elementary
    Schools Teachers
    Appointment
    Rules, 1991 as
    amended AND
    Bihar Secondary
    Schools Teachers
    Appointment
    Rules.
    Bihar Panchayat
    Elementary Teachers
    (Employment and Service
    Conditions) Rules, 2012;
    Bihar Nagar Elementary
    Teachers (Employment and
    Service Conditions) Rules,
    2012; Bihar District Board
    Secondary and Higher
    Secondary Teachers
    (Employment and Service
    Conditions) Rules, 2006;
    Bihar Municipal Body
    Secondary and Higher
    Secondary Teachers
    (Employment and Service
    Conditions) Rules 2006; as
    amended.
    8 Status
    of
    appoi
    ntmen
    t
    Rules
    The said relevant
    Rules has already
    repealed.
    It is in existence
  44. No. of
    teache
    rs
    Upto 2006 in
    Primary &
    Secondary about
    1,30,000
    After 2006 in Primary &
    Secondary about 4.4 lakhs
  45. Appell
    ate
    Autho
    rity
    RDDE/Director,
    Secondary
    Education
    District Appellate
    Authority/State Appellate
    Authority.
  46. During the pendency of these matters, a Resolution was passed 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    35
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    librarians that were appointed and the pay-scale that was given to those
    teachers. The tabular chart given in the Resolution was as under:-
    “2.1 Primary Teacher
    Sl.
    No.
    Post No. of
    Vacancies
    Pay-scale Grade
    pay
    1 2 3 4 5
  47. Primary
    Teacher
    (Untrained)
    62031 5200-
    20200
    5
  48. Primary
    Teacher
    (Trained)
    245344 5200-
    20200
    0
  49. Primary
    Teacher
    (Graduate
    untrained)
    14000 5200-
    20200
    0
  50. Primary
    Teacher
    (Graduate
    trained)
    22739 5200-
    20200
    2400
    Total
    Teachers
    (inclusive
    of number
    of teachers
    to be
    appointed
    in future as
    against the
    declared
    vacancies)
    344114
    2.2 Secondary Teacher/Librarian
    Sl.
    No.
    Post No. of
    Vacancies
    Pay-scale Grade
    pay
    1 2 3 4 5
  51. Secondary
    Teacher
    (Untrained)
    4463 5200-
    20200
    0
  52. Secondary
    Teacher
    (Trained)
    25038 5200-
    20200
    2400
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    36
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  53. Librarian 1900 5200-
    20200
    0
  54. Higher
    Secondary
    Teacher
    (10+2)
    (untrained)
    3058 5200-
    20200
    0
  55. Higher
    Secondary
    Teacher
    (10+2)
    (trained)
    26774 5200-
    20200
    2800
    Total
    Teachers
    (inclusive
    of numbers
    of teachers
    to be
    appointed
    in future as
    against the
    declared
    vacancies)
    61233
    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 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 trained
    teachers and librarians and Rs.2,800/- for higher secondary trained
    teachers would be payable as Grade Pay. Similarly, in cases of untrained
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    37
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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:-
    Particulars of additional financial impact
    Sl.
    No.
    Grade Number of
    Niyojit
    Teachers
    who
    would
    benefit
    Total
    emoluments
    payable in
    terms of the
    pay-scale
    Total
    emoluments
    being paid
    presently
    Total
    additional
    financial
    impact
    (figure in
    crores)
    1 Primary
    Teacher
    344114 6693.23 4173.21 2520.04
    2 Secondary
    Teachers,
    Higher
    Secondary
    Teachers
    and
    Librarians
    61233 1259.30 830.85 428.45
    Total 405347 7952.55 5004.06 2948.49
  56. 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 Niyojit Teachers;
    that both the categories of teachers were discharging 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    38
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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-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 others2
    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
    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
    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”.
    2(2017) 1 SCC 148
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    39
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 the earlier affidavits
    in respect of claim raised by the petitioners in this case.
  57. 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 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.
  58. 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.
  59. 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 Rs.6144.02
    crores would be required to meet salary for payment of
    future recruitments.
  60. 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 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-R in this written submission.
  61. That it is relevant to point out here that at present the
    total budgetary provision on education by the State
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    40
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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.
  62. That in view of the aforementioned facts, the
    deponent humbly submits that while deciding the issue in
    question, the aforesaid fact needs to be considered by this
    Hon’ble Court.
  63. 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:-
    “(i) Whether Rules 6 and 8 of Rules 2006 are consistent
    with 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 or not?
    (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?”
  64. 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    41
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    categories of teachers 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 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 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 payscale on the basis of artificial distinction is unreasonable.”
  65. During the course of its discussion, it was also observed as under:-
    “46. I also find that the poor scale to the Niyojit Shikshak
    has adversely affected the academic atmosphere in the
    state of Bihar. 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 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 recruitment of
    3 AIR 1988 SC 1504
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    42
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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,
    “(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 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 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 payscale of the petitioners according to the principles of pay
    revision under 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.
    (v) Such exercise must be completed within a period of
    three months from today and monetary benefits admissible
    to the Niyojit Shikshak must be paid to them within a
    further period of three months.”
    4 (2006) 9 SCC 321
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    43
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  66. State of Bihar, being aggrieved, has challenged the aforesaid
    decision of the High Court in these appeals. On 29.01.2018 this Court
    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 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 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.
    … … …
    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
    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 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    44
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Secretary 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, 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.”
  67. Accordingly, an Expert Committee consisting of Chief SecretaryBihar, Principal Secretary-General Administration Department 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 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 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 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 trained and Rs.300/- in case of untrained on the
    basis of their evaluation as prescribed.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    45
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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.
  68. In view of provisions under Article-21A of the
    Constitution of 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 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
    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.
  69. Similarly, rules for selection on the post of teacher in
    Secondary & 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.
  70. For appointment on the post of primary teacher, prior
    to 2006 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.
  71. 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    46
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    preliminary & mains examination by the Staff Selection
    Commission, Bihar.”
    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 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.
    … … …
  72. … … 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 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 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 (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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    47
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Two separate chances shall be given for appearing in the
    special examination.”

It was further suggested that upgraded pay structure could be
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.

  1. An affidavit in reply was, thereafter, filed on behalf of the
    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 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    48
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    of the RTE Act, 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 (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 domain of State
    Govts. and UTs, the salary and pay fixation for these
    teachers was done by the respective States and UTs.
  2. That the Chapter-III point 21 of the Financial
    Management and Procurement (FMP) Manual under the
    heading “Appointment 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 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
  3. 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,
    2009-10 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    49
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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
    merging the different school education development
    schemes and 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 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.
  4. The vision of the scheme is to ensure inclusive and
    equitable 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
    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 of Education (SIEs) and District Institutes of
    Education and Training (DIETs) as nodal agencies for
    teacher training.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    50
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  5. 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 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 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)
    Strengthening of Teacher Education and Training; (xii)
    Monitoring; and (xiii) Programme Management.
  6. 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 pattern of 60:40 for all the States,
    with the exception that the pattern will be 90:10 for NorthEastern and three Himalayan States and 100% for Union
    Territories without Legislature.
  7. In order to focus on improvement of educational
    indicators and quality of education, part of the funds will
    be allocated amongst 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
    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
    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 taking
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    51
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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.”
  8. 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:-
    Status of Four year Central Releases under SSA
    S.
    No.
    2014-15 2015-16 2016-17 2017-18
    BE 28258
    crore
    22000
    crore
    22500 crore 23500
    crore
    RE 24380
    Crore
    22015.10
    crore
    22500 crore 23593.86
    crore
    (Rs. In lakh)
    State Central
    Releases
    Central
    Releases
    Central
    Releases
    Central
    Releases
    1 Andaman &
    Nicobar
    147.21 359.46 479.14 1945.53
    2 Andhra
    Pradesh
    154566.67 66810.81 63302.18 70431.00
    3 Arunachal
    Pradesh
    33607.82 18179.44 19956.64 23022.07
    4 Assam 97782.19 100464.64 87652.30 123584.00
    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 Dadar &
    Nagar Haveli
    911.74 594.91 1068.37 5476.54
    9 Daman &
    Diu
    72.77 78.38 300.00 1038.57
    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 Haryana 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
    17 Karnataka 66213.52 41759.34 54495.51 54882.00
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    52
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    18 Kerala 21844.02 12858.86 11316.74 13680.00
    19 Lakshadweep 58.83 139.55 239.87 406.52
    20 Madhya
    Pradesh
    149094.92 160197.86 154455.08 173814.00
    21 Maharashtra 58288.54 41225.28 60369.65 64232.00
    22 Manipur 21465.81 18355.46 4405.31 18377.00
    23 Meghalaya 20404.52 16627.04 20067.01 33579.51
    24 Mizoram 14739.70 9437.51 10934.31 12000.34
    25 Nagaland 20568.74 8739.53 10725.35 11717.00
    26 Puducherry 100.00 583.14 304.68 622.73
    27 Punjab 36215.98 30003.22 30002.69 31665.00
    28 Rajasthan 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
    31 Tamil Nadu 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 Uttarakhand 22880.57 22588.40 25268.98 62499.00
    35 West Bengal 97240.30 84679.41 82185.33 89657.00
    Central Releases
    Total
    2403016.41 2159013.36 2165744.89 2349361.32
  9. 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 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 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 monthly salary for each category of
    teachers was also collected.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    53
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  10. 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 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/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:-
    S.
    No.
    State Tentative requirement of
    additional Salary funding
    1 Andaman & Nicobar 4.87
    2 Andhra Pradesh 57.82
    3 Arunachal Pradesh 183.16
    4 Assam 316.94
    5 Bihar 10460.70
    6 Chandigarh 17.83
    7 Chhattisgarh 5867.79
    8 D & N Haveli 19.76
    9 Daman & Diu 4.75
    10 Delhi 56.66
    11 Goa 7.82
    12 Gujarat .78
    13 Haryana 267.77
    14 HP 463.56
    15 Jammu & Kashmir 117.83
    16 Jharkhand 3861.98
    17 Karnataka 0
    18 Kerala 31.54
    19 Lakshadweep 2.34
    20 Madhya Pradesh 2971.13
    21 Maharashtra 157.49
    22 Manipur NA
    23 Meghalaya 288.09
    24 Mizoram 102.64
    25 Nagaland 90.03
    26 Odisha 429.19
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    54
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    27 Puducherry .98
    28 Punjab 147.04
    29 Rajasthan 0
    30 Sikkim 131.68
    31 Tamil Nadu 0
    32 Telangana 0
    33 Tripura 103.31
    34 Uttar Pradesh 8448.78
    35 Uttarakhand 67.74
    36 West Bengal 2316
    Total Fund required 36998.00
  11. 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.
    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 as such, those appointed
    before 2006 were part of a dying or vanishing cadre. The reliance on pay-
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    55
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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, 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 others5
    , 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
    others7
    , iv) Secretary, Finance Department and others vs. West Bengal
    Registration Service Association and others8
    , v) State of U.P. and others vs.
    Ministerial Karamchari Sangh9
    , vi) State of Haryana and another vs.
    Haryana Civil Secretariat Personal Staff Association10 and vii) S.C.
    Chandra and others vs. State of Jharkhand and others11
    .
    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
    11 (2007) 8 SCC 279
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    56
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    B) Shri Rakesh Dwivedi, learned Senior Advocate submitted that 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. He submitted
    that as a part of the Constitutional obligation of providing 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 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 crafted keeping in
    mind the capacity of the State. First task having been achieved, the State is
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    57
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 Bhattacharya14, iv) Gopal Chawala
    and others vs. State of Madhya Pradesh and others15 and v) M.M.L.
    Aurora and 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
    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.
    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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    58
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    education were made through this mode only. Old method of
    recruitment was abolished and the cadre of existing Assistant
    Teachers became a Dying Cadre, as per chart below:
    School Regular
    Teachers
    in 2006
    Regular Teachers (at present)
    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
    Hon’ble Court (reported as 2014
    (11) SCC 405.
    32,327 were appointed and
    dispute was raised in respect of
  12. 6170 out of them have
    retired and 26157 still remain in
    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
    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.
    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:
    Primary Schools 42614
    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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    59
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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
    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 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    60
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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 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:-
    Elementary Classes (I to VIII)
    Year Total
    Enrolment
    Girls Enrolment % Increase
    2005-06 13282932 5775325 43.47%
    2016-17 19995608 10137266 50.69%
    Secondary Classes (IX-X)
    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:-
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    61
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Year 10th board 12th board
    Total
    Appeared
    Student
    Girls
    Appeared
    % App. Total
    Appeared
    Student
    Girls
    App.
    % App.
    2005 560376 186613 33.30% 314802 99238 31.52%
    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%
    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%
    2017 1763471 866283 49.12% 1257342 556084 44.23%
  13. Reduction in Total Fertility Rate (TFR)
    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 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)
    Illiterate 4.2
    Without formal education 3.9
    Below Primary 3.9
    Primary 3.3
    Middle 3.0
    Class-X 2.7
    Class-XII 2.2
    Graduate & above 2.1
    State Average 3.3
    National Average 2.3
    Source: – Sample Registration System (SRS) published
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Annually (Registrar General of India)
  14. Breakup of Out of School Children (6-14 years)
    Out of School Children (6-14 years)
    Year Total Girls SC
    2005-06 2315362 1128110 588491
    2017-18 201806 94974 55297
    Following chart was also placed on record indicating Literacy Rate in
    State of Bihar in last seven decades:-
    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
    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
    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 others17
    , The State of Gujarat and
    another vs. Shri Ambica Mills Limited, Ahmedabad and another18, The
    Superintendent and Remembrancer of Legal Affairs, West Bengal vs.
    17 1956 SCR 267
    18 (1974) 4 SCC 656
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    63
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Girish Kumar Navalakha and others19, H.H. Shri Swamiji of Shri Amar
    Mutt and others vs. Commissioner, Hindu Religious and Charitable
    Endowments Department and others20, Col. A.S. Iyer and others vs. V.
    Balasubramanyam and others21, Javed Niaz Beg and another vs. Union of
    India and another22, 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 others25, Sooraram Pratap Reddy and others vs. District Collector,
    Ranga Reddy District and others26
    and Shivashakti Sugars Limited vs.
    Shree Renuka Sugar Limited and others27
    .
  15. Responding to the observations of the High Court in the 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?
    19 (1975) 4 SCC 754
    20 (1979) 4 SCC 642
    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 (2017) 7 SCC 729
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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
    A. On initial appointment
    (Amount in Rs.)
    Descri
    ption
    Peon
    (Worki
    ng
    under
    State
    Govt.
    Clerk
    (Workin
    g under
    State
    Govt.)
    Primary
    Niyojit
    Teachers
    (Trained)
    Primary
    Niyojit
    Teachers
    (Graduate
    Trained)
    Secondary
    Niyojit
    Teachers
    (Trained)
    Senior
    Secondary
    (10+2)
    Niyojit
    Teachers
    (Trained)
    Basic 18000 19900 13370 13370 13370 13370
    D.A. @
    7%
    1260 1393 936 936 936 936
    HRA
    @ 4%
    720 796 535 535 535 535
    Medica
    l
    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
    Descri
    ption
    Peon
    (Workin
    g under
    State
    Govt.
    Clerk
    (Working
    under
    State
    Govt.)
    Primary
    Niyojit
    Teachers
    (Trained)
    Primary
    Niyojit
    Teachers
    (Graduate
  • Trained)
    Secondary
    Niyojit
    Teachers
    (Trained)
    Senior
    Secondary
    (10+2)
    Niyojit
    Teachers
    (Trained)
    Basic 19100 21100 19650 20740 20740 21820
    D.A.
    @ 7%
    1337 1477 1376 1452 1452 1527
    HRA
    @ 4%
    764 844 786 830 830 873
    Medic
    al
    1000 1000 1000 1000 1000 1000
    Gross
    salary
    22201 24421 22812 24022 24022 25220
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    65
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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.
    Descri
    ption
    Peon
    (Working
    under
    State
    Govt.
    Clerk
    (Working
    under
    State
    Govt.)
    Primary
    Niyojit
    Teachers
    (Trained)
    Primary
    Niyojit
    Teachers
    (Graduate
    Trained)
    Secondar
    y Niyojit
    Teachers
    (Trained)
    Senior
    Secondary
    (10+2)
    Niyojit
    Teachers
    (Trained)
    Basic 19100 21100 23610 24930 24930 26240
    D.A.
    @ 7%
    1337 1477 1653 1745 1745 1837
    HRA
    @ 4%
    764 844 944 997 997 1050
    Medic
    al
    1000 1000 1000 1000 1000 1000
    Gross
    salary
    22201 24421 27207 28672 28672 30127
  1. The State also placed on record, increases in emoluments granted to
    Niyojit Teachers at various stages, as under:-
    Increases in Salary of Elementary Niyojit Teachers (Trained)
    – At a Glance
    Description Initial
    fixed
    Salary
    per
    Month
    (in rs.)
    Present
    Gross
    Salary
    per
    Month*
    (In Rs.)
    Increase
    in
    Amount
    of Salary
    (In Rs.)
    %
    Increase
    Remarks
    Recruited in
    2003
    Shiksha Mitra
    (Trained)
    1500 25564 24064 1604 Pay Scale
    w.e.f.
    01.07.2015 &
    increment of
    2.57 times in
    the basic pay
    w.e.f.
    01.04.2017 as
    per
    recommendat
    Recruited in
    2006 –
    Panchayat/
    Prakhand/
    Nagar
    Shikshak
    5000 24843 19843 397
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    66
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    (Trained) ion of 7th Pay
    Recruited in Commission
    2010 –
    Panchayat
    /Prakhand/
    Nagar
    Shikshak
    (Trained)
    7000 24134 17134 245
    Recruited in
    2013 –
    Panchayat/
    Prakhand/
    Nagar
    Shikshak
    (Trained)
    10000 22812 12812 128
    *Note – Gross Salary includes Dearness Allowances (DA),
    House 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
    Basic
    Revised
    Basic **
    DA
    (7%)
    HRA Medical Proposed
    Gross
    Salary
    Recruited in 2003 –
    Shiksha Mitra
    (Trained)
    22130 26590 1861 1064 1000 30515.00
    Recruited in 2006 –
    Panchayat/prakhand/
    Nagar Shikshak
    (Trained)
    21480 25810 1807 1032 1000 29649
    Recruited in 2010 –
    panchayat/Prakhand/
    Nagar Shikshak
    (Trained)
    20850 25050 1754 1002 1000 28806
    Recruited in 2013 –
    panchayat/Prakhand/
    Nagar Shikshak
    (Trained)
    19650 23610 1653 944 1000 27207
    **Note – As per recommendation of three persons committee
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    67
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    their designation in the proposed pay-matrix, with an increment
    of 20% in their pay of the pre-upgraded scale, which are being
    paid w.e.f. 01.01.2016.”
  2. 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 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 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 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.
    28 1963 Suppl. 2 SCR 169
    29 (1972) 2 SCC 275
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    68
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Union of India & Ors.30 and Randhir Singh vs. Union of India and
    others31, State of Haryana and others vs. Jasmer Singh and others32, 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 others34, State of Haryana and
    others vs. Charanjit Singh and Others4
    and S.C. Chandra and others vs.
    State of Jharkhand and others11
    . It 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 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.
    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 (2007) 1 SCC 408
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    69
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  3. 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 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 respect to applicability
    of Rule 20(3) of 2010 Rules, the learned Attorney 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.
  4. 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    70
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    who followed him are dealt with in the order that they appeared and
    argued. It was submitted by Mr. Sibal:-
    (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.
    (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.
    (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
    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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    71
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    (vi) As a matter of law, financial difficulty would be no ground to
    oppose the rightful demands of Niyojit Teachers for equal pay for
    equal work which has always been held to be a constitutional
    obligation.
    (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. 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 and others vs.
    State of Haryana and others37, Jaipal and others. vs. State of Haryana and
    others3
    , 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,
    36 (1986) 1 SCC 637
    37 (1987) 4 SCC 634
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    72
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    the Court may set to malaise 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.
  5. Mr. C.A. Sundaram, learned Senior Advocate appeared for certain
    associations of teachers and submitted that it was not open to 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 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 Schools of Rajasthan vs. Union of
    India and Another39, Karnataka State Private College Stop-Gap Lecturers
    Association vs. State of Karnataka and Others40, Baseeruddin M. Madari
    38 (2008) 6 SCC 1
    39 (2012) 6 SCC 1
    40 (1992) 2 SCC 29
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    73
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    and others. vs. State of Karnataka and Others41, State of Uttar Pradesh
    and another vs. Anand Kumar Yadav and others42
  6. Mr. Vijay Hansaria, learned Advocate submitted that Article 21A
    was inserted by the 86th Constitutional Amendment Act on 12th 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 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 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.
    41 1995 Supp (4) SCC 111
    42 (2018) 13 SCC 560
    43(1993) 1 SCC 645
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    74
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    He further submitted that under various enactments namely National Food
    Security Act, 2013, Juvenile Justice Act, 2015, Mahatma Gandhi National
    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 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
    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 ₹ 83,497
    core 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
    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.
    44(1996) 6 SCC 756 para 29
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    75
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    The matter of non-creation of Fund and non-dentification of
    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).
  7. Mr. Salman Khurshid, learned Senior Advocate submitted that 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
    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 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 indicate. Further, the trend towards increasing
    reliance on second-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
    45 (2006) 4 SCC 1
    46 [“India – Development and Participation” by Jean Dreze and Amartya Sen]
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    76
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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.
    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 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.”
  8. 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 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 were
    three sets of guarantees available to Niyojit Teachers. First, under Article
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    77
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 and emoluments.
    She relied upon the Report of the Finance Commission47, the relevant
    portion being:-
    “12.19… ….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 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 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 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.
    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 assume that the same ratio will continue in the
    4713th Finance Commission, for 2010-15 published in 2009
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    78
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 given the
    resource scarcity faced by the states as a result of the
    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, 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.
    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 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-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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    79
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    are given in Annex 12.1. In 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, submajor head-01, exclusive of the grants recommended
    herein, should grow by at least 8 per cent, the assumed
    growth rate in our 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 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 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
    .
    48 (1983) 2 SCC 33
    49 (2001) 4 SCC 78 para 10
    50 (2017) 9 SCC 1
    51 (1974) 4 SCC 3 para 85
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    80
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Ms. Makhija also submitted that the distinction drawn by the learned
    Attorney General was artificial and without any nexus to the object. She
    further submitted that the State cannot let disparity continue and
    perpetuate inequality.
  9. 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 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 allowed to
    engage himself in private teaching activity. He relied upon State of
    Punjab and Others vs. Jagjit Singh and Others2
    , 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
    52 (1980) 1 SCC 98 para 10
    53 (1981) 1 SCC 627 para 5
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    81
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Others54
    . Lastly, he urged that the right under Article 21A ought to be
    made meaningful.
  10. 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
    Rs.9283.69 Crores out of which the share allocable to the Central
    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 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 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.
    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
    54 (2012) 6 SCC 502 paras 137 to 144
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    82
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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.
    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 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
    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 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 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.
    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.”
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    83
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 nonteaching 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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    84
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    decisions of this Court in State of Gujarat and Another vs. Raman Lal
    Keshav Lal Soni and Others48 and Arindam Chattopadhyay and Others vs.
    State of West Bengal and Others55
    .
  11. 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 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
    .
  12. 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 Municipal
    55 (2013) 4 SCC 152 para 5 and 13
    56 By Shantha Sinha, Department of Political Science, University of Hyderabad
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    85
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 vs. Bihar Education
    Service Association and others57 particularly on para 50.
  13. 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
    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 others vs. Shiv
    Kumar Pathak and others58
    .
  14. 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
    57 (2012) 13 SCC 33
    58 (2018) 12 SCC 595
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    86
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    vs. Shri Vardichand and others59, Secretary and Mahatama Gandhi
    Mission and another vs. Bhartiya Kamgar Sena and others60(paragraphs
    82 to 90 and 95).
  15. 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
    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.
  16. Mr. Rajiv Dhawan, learned Senior Advocate appearing for certain
    secondary and primary teachers submitted that the statutory 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 mandate and
    whether financial constraints could be taken as a valid excuse. He
    59 (1980) 4 SCC 162
    60 (2017) 4 SCC 449
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    87
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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
  17. Mr. Sanjay Hegde, learned Senior Advocate appearing for some of
    the primary teachers submitted that as it is the income of a teacher has
    always been a limited one and the attempt on part of the 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 of this Court in
    61 (1992) 3 SCC 666
    62 (1995) 4 SCC 507
    63 (1992) 1 SCC 290
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    88
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    Municipal Council, Ratlam vs. Shri Vardichand and others59 and
    Chandigarh Administration and others vs. Rajni Vali and others64
    .
  18. 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 (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 other learned counsel, it was
    submitted by them that Niyojit Teachers were entitled to same salaries and
    emoluments as were given to Government Teachers.
  19. In rejoinder, it was submitted by Mr. Dinesh Dwivedi, learned
    Senior Advocate that a conscious decision was taken not to make any
    further appointments in the cadre of Government Teachers and but for onetime 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
    64 (2000) 2 SCC 42
    65 (1978) 1 SCC 248
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    89
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    compensation and in the process could have ensured one single cadre of
    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 given to Government
    Teachers. The decisions of this Court in State of Punjab vs. Joginder
    Singh28 and in Zabar Singh and others vs. State of Haryana and others29
    ,
    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 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 by the appropriate government or a local body’ to
    submit that it was sufficient indication that new kind of service could be
    66 (2003) 6 SCC 123
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 All India Bank Employees’ Association vs. National Industrial
    Tribunal and others67, Society for Unaided Private Schools of Rajasthan vs.
    Union of India and another39
    .
  20. Mr. Shyam Divan, learned Senior Advocate, in rejoinder, relied
    upon the judgment of Constitution Bench of this Court in Navtej Singh
    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 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
    67 (1962) 3 SCR 269 = AIR 1962 SC 171
    68 (2018) 10 SCC 1
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    compromised. According to him, the two competing visions which 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 State was
    emphasising was community right and to achieve and to 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 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 Gujarat and others69(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
    .
    69 (1975) 1 SCC 11
    70 (2015) 3 SCC 1
    71 (2016) 7 SCC 221
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  21. With the permission of the Court, Mr. Sibal, Mr. Sundaram, Mr.
    Vijay Hansaria and Mr. Ranjit Kumar, learned Senior Advocates 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 ‘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
    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.
  22. Having heard the learned counsel extensively, who took us through
    all the relevant material on record and placed before us various contours of
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    93
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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) 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
    provisions of the RTE Act.
  23. 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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    94
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 appointed
    at Panchayat levels.
  24. 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 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 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 behalf,
    specially in the present matter, indicate that sometime in 2002 more than
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    95
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    one lakh Shiksha Mitras were appointed by the State. These 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 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, 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    96
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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 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.
  25. We are thus having a situation where the decisions taken by the
    State as submitted on its behalf, were guided by public interest and 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    97
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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’.
  26. 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 the exception as
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 lakhs which is seeking parity with a dying or a
    vanishing cadre.
  27. 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 by
    Niyojit Teachers are certainly same or similar to those performed by 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    99
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    him evidently show that there is no distinction or difference as regards
    nature of duties performed and responsibilities discharged by the Niyojit
    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 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 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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  28. 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 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:-
    “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 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.”
  29. 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
    72 AIR 1962 SC 1139
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    ‘equal pay for equal work’ had not expressly been declared by the
    Constitution to be a Fundamental Right, it was certainly a 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 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
  30. 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 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. 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 sought to be
    applied to them.
  31. 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 and women” as a directive
    principle of State Policy. “Equal pay for equal work for
    both men and women” means equal pay for 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 protection of the laws and Article 16
    declares that there shall be equality of opportunity for all
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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
    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
    in the matter of grant of licences or permits confers
    unfettered discretion on the Executive, whether the takeover 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
    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 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 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 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 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
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    peace and harmony of the world are imperilled”.
    Construing Articles 14 and 16 in the light of the Preamble
    and 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.
  32. 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 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 driverconstables of the Delhi Police Force were onerous. What
    then is the reason for giving them a lower scale of pay
    than 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
    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 given
    effect.”
  33. Post Randhir Singh31
    , there have been number of decisions
    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
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    considered if there are any limitations or qualifications to the doctrine of
    ‘equal pay for equal work’.
  34. 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 (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
    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 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 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
    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 craftsman is not enough to
    come to the conclusion that he is doing the same work as
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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 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 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.”
  35. In SC Chandra and others vs. State of Jharkhand and 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 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.
    … … …
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  36. 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 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).
  37. 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 principle of
    equal pay for equal work cannot apply vide Govt. of W.B.
    v. Tarun K. Roy (2004) 1 SCC 347.
  38. 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 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 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.”
  39. 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 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
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    that the principle of equal pay for equal work is not an
    abstract doctrine and can be enforced by reading it into the
    doctrine of equality enshrined in Articles 14 and 16 of the
    Constitution of India.
  40. 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. 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, 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, 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 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 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
    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, responsibilities, reliability,
    experience, confidentiality, functional need, etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    … … …
  41. In Canteen Mazdoor Sabha v. Metallurgical & Engg.
    Consultants (India) Ltd (2007) 7 SCC 710 another twoJudge Bench held that simply because some employees of
    a contractor 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.
  42. As mentioned earlier, the respondents were
    employed/engaged by the Official Liquidators pursuant to
    the sanction 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 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 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 and other monetary
    benefits on a par with regular employees by applying the
    principle of equal pay for equal work.”
  43. 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:-
    “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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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    (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 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 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.

  1. 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
    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)
    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 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
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    by it in respect of daily wagers of the Commercial
    Taxes Department. The 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 pay, particularly in
    cases where the conduct of the State had been found
    to be unreasonable, unjust and prejudiced.
    … … …
  2. 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 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 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 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 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’ 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
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    cases bearing on the subject and after a detailed
    discussion have finally put the controversy to rest
    that the persons who 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 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.”
  3. Katju, J. in his separate but concurrent judgment
    opined as under: (S.C. Chandra case (2007) 8 SCC 279,
    SCC pp. 290 & 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 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.

  1. 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 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).”
  2. The Bench in S.C. Chandra case (2007) 8 SCC 279 in
    arriving at the said finding specifically relied upon a threeJudge 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)
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    “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 not always easy to apply. It has
    been held that there are inherent 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 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 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
    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.’

  1. 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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    113
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    persons selected by a Selection 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 has been noted with
    approval in Tarun K. Roy case (2004) 1 SC 347.
  2. 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 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 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 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 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 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 is doing the same work as
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    114
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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
    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 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 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 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.

  1. 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 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 footing that their posts were
    interchangeable. It was held that these persons had
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    115
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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.”
    … … …
  2. 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.
    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
    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 580 and State of Haryana v. Haryana
    Civil Secretariat Personal Staff Assn. (2002) 6 SCC
    72)

  1. On the facts obtaining in this case, therefore, we
    are of 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 treated to be on a
    par and the same scale of pay shall be
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    116
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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
    was determined at Rs 6500-10,500 which was the
    revised scale 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 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 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
    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. 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    be for equal work of equal value and that the
    principle of equal pay for equal work has no
    mathematical 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 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 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.”
  2. 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 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.”
  3. In Steel Authority of India Limited and others vs. Dibyendu
    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)
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    118
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    “18. … The evaluation of duties and
    responsibilities of different 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.
  4. 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 approach such
    matters with restraint and interfere only if they are
    satisfied that the decision of the Government is
    patently irrational, unjust and prejudicial to any
    particular section of employees.
  5. The burden to prove disparity is on the
    employees claiming parity….”
    … … …
  6. 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, 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
    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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    119
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  7. 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. 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 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 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”.
  8. Analysis of the decisions referred to above shows that 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 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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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.
    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 may be
    considered as one of the factors which may make a
    difference.
  9. The latest decision on which heavy reliance was placed on behalf
    of Niyojit Teachers is the one rendered by a Bench of two Judges in State
    of Punjab and others vs. Jagjit Singh and others2
    . The issues that arose
    for consideration were set out in para 5 as under:-
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    121
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    “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 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 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 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 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 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 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.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    122
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    (3) In the event, a claim is made for minimum
    pay scale after more than three years and two
    months of completion of 10 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.”
  10. While considering the aforesaid issue this Court had noted all the
    decisions on the point of pay parity from Randhir Singh vs. Union 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 workcharge, daily-wage, casual, ad hoc, contractual and the like) was also
    considered. After discussion on the point, the matter was concluded 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 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 described as workcharge, 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.”
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    123
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  11. 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.
  12. 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.
    In the first case, Respondent Joginder Singh was working as 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    124
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    ‘provincialization’ the teachers like Respondent Joginder Singh, though
    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 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. 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    125
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    the constitution of such services would be violative of
    Article 14. Underlying this submission 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 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,
    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.”
    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 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 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    126
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    different rules and 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.
  13. Besides the disparity in the chances of promotion
    between 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
    “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 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 further reference to it.
  14. 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 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, 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    127
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    denial of that freedom guaranteed by the two articles. The
    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 integration of the
    two Services. On this view it would follow that the
    impugned rules cannot be struck down as violative of the
    Constitution.
  15. Before concluding it is necessary to point out that, as
    explained earlier, the source of the prejudice caused by the
    impugned rules 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 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
    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 manifest that such
    a contention is obviously untenable.”
  16. 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 others29
    .
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    128
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 place throughout the Commissioner’s division, a local
    body teacher could only be transferred within the
    territorial limits of that body. 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 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 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.
  17. 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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    129
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 teachers formed
    distinct classes. Though they were performing similar
    duties, they could not be said to form one integrated class.
  18. The question then is, whether in spite of the
    Government school teachers and the provincialised
    teachers forming two distinct 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 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 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
    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.
  19. It is fairly clear from the memorandum published
    along with 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    130
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    discussion and those proposals were communicated to the
    recognised associations of the teachers. Since 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 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 cadre alone in the field. These
    events leave no doubt that at no time after October 1,
    1957, any decision for integrating the two 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 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 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 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.
    … … …
  20. 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    131
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    they could be transferred only within the District where
    they were serving. Those who were already confirmed
    prior to the provincialisation 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 that grade.
  21. 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, 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 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
    correspondingly an expanding cadre, the total number of
    posts for all the schools, Government and provincialised,
    remaining more or less constant.
    … … …
  22. The controversy thus really turns on the question
    whether 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
    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 adopted by Punjab
    State.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    132
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  23. 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 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 teachers were governed by
    1955-Rules, rules had yet to be framed for the
    provincialized teachers. The two cadres thus being
    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
    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 ruleframing authority need not legislate for all the categories
    and can select for which category to legislate (See
    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 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 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 simple reason that
    the provincialized cadre was already frozen even before
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    October 1, 1957 and Government had decided not to make
    fresh appointments in that cadre since that cadre was to be
    a diminishing one.
    … … …
  24. 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 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 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.”
  25. Heavy reliance was placed on the aforesaid decisions by the
    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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    134
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    other service while maintaining distinct identities of both the services,
    even when the teachers coming from the both the cadres were doing
    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
    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 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.
  26. We must also consider observations of this Court in paragraph 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:-
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    135
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  27. … … Ordinarily a pay structure is evolved keeping in
    mind 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 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 pay structure ought not to be ordinarily disturbed
    as it may upset the balance and cause avoidable ripples in
    other cadres as well. … …”
  28. We, therefore, have to proceed on the following basic premise:-
    a) 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 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 lower
    than what was given to Government Teachers but the number of
    Government Teachers was considerably lower than the number of
    Niyojit Teachers.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    136
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    As stated above, 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.
    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 above.
  29. 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 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 required attention. The advances
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    137
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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.
  30. It is true that the budgetary constraints or financial implications can
    never be a ground if there is violation of Fundamental Rights of a 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 Education ought
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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.
  31. 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 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
    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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    139
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 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.
  32. At the same time, the submission that at the initial stage the Niyojit
    Teachers are given such emoluments which are 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 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
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
    140
    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
    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 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 considered by the State.
  33. 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.
  34. In the end, we must express our sincere gratitude for the assistance
    rendered by all the learned counsel who appeared in the matters. We are
    grateful to all the learned counsel.
    Civil Appeal No…… of 2019 @ SLP(C)No.20 of 2018 etc.
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    State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee,
    Munger & Ors.
  35. These appeals are allowed in aforesaid terms. No order as to costs.
    ………………………….J.
    (Abhay Manohar Sapre)
    ………………………….J.
    (Uday Umesh Lalit)
    New Delhi;
    May 10, 2019.
    REPORTABLE
    IN THE SUPREME COURT OF INDIA
    CIVIL APPELLATE JURISDICTION
    CIVIL APPEAL No. 4862 OF 2019
    (Arising out of S.L.P.(C) No.20 of 2018)
    The State of Bihar & Ors. ….Appellant(s)
    VERSUS
    The Bihar Secondary Teachers Struggle
    Committee, Munger & Ors. ….Respondent(s)
    WITH
    CIVIL APPEAL No.4872 OF 2019
    (Arising out of S.L.P.(C) No.708 of 2018)
    CIVIL APPEAL No.4867 OF 2019
    (Arising out of S.L.P.(C) No.238 of 2018)
    CIVIL APPEAL No.4866 OF 2019
    (Arising out of S.L.P.(C) No.242 of 2018)
    CIVIL APPEAL No.4864 OF 2019
    (Arising out of S.L.P.(C) No.169 of 2018)
    CIVIL APPEAL No.4865 OF 2019
    (Arising out of S.L.P.(C) No.162 of 2018)
    CIVIL APPEAL No.4869 OF 2019
    (Arising out of S.L.P.(C) No.254 of 2018)
    1
    CIVIL APPEAL No.4863 OF 2019
    (Arising out of S.L.P.(C) No.164 of 2018)
    CIVIL APPEAL No.4868 OF 2019
    (Arising out of S.L.P.(C) No.251 of 2018)
    CIVIL APPEAL No.4870 OF 2019
    (Arising out of S.L.P.(C) No.240 of 2018)
    AND
    CIVIL APPEAL No.4871 OF 2019
    (Arising out of S.L.P.(C) No.572 of 2018)

J U D G M E N T
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 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
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    respective submissions, I wish to add a few words of
    mine.
  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.
  4. In his immaculately and distinctive style of
    writing, the learned 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 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 the law or
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    the equal protection of the laws
    within the territory of India.”
  5. 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 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 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 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
  6. Always there is in these cases a clash of
    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
    than one so­called principle. As Judge
    Leonard Hand of the United States Court of
    Appeals said of the American Constitution.”
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  7. The aforesaid observations of Justice Vivian
    Bose, therefore, should always be kept in mind
    while deciding the question of the nature arising in
    every case including the one at hand.
  8. 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. (1972 ) 2 SCC 275.
  9. 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.
  10. I may, at this stage, refer to a decision in N.
    Meera Rani vs. Govt. of Tamil Nadu & Anr., AIR
    1989 SC 2027. In this case, it was argued that the
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    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 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.
  11. Justice J.S. Verma (as His lordship then was),
    speaking for Three Judge Bench, held that the
    question involved in the appeal before 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
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    the light of the law laid down by the Constitution
    Bench. This is what His Lordship said in para 13:
    “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
  12. All subsequent decisions which are cited
    have to be read in the light of this
    Constitution Bench decision since they are
    decisions by Benches comprising of lesser
    number of 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.”
  13. 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
    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).
  14. Though the learned counsel for the
    respondents made sincere attempts on their part in
    contending that the law laid down in Joginder
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    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.
  15. Brother Lalit,J. has dealt with this question
    elaborately in paras 72 to 74 of his opinion. I
    respectfully concur with his reasoning contained
    therein.
  16. 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 Court are dismissed. .………...................................J. [ABHAY MANOHAR SAPRE]

New Delhi;
May 10, 2019
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