Ajay Kumar Das & Ors vs The State of Bihar & Ors

This batch of writ applications have been preferred by the Assistant Teachers of Biology and Mathematics serving in the different high schools in

the State of Bihar pursuant to their appointment vide memo no.438 and memo no.439 dated 22.06.2013 respectively. A copy of the consolidated

appointment letters have been brought on record as Annexure-11 and 11/1 to the writ applications.

The petitioners are aggrieved with Rule 5 and 11 of the “Bihar Nationalized Secondary School Teacher’s Special Appointment Rule 2013â€

(hereinafter referred to as the Rules, 2013)c published vide notification contained in memo no.850 dated 31.05.2013 (Annexure-10 to the writ

application) issued under the signature of the Principal Secretary, Department of Education, Government of Bihar. It is their contention that the given

paragraphs are violative of Article 14 and 16 of the Constitution of India as also those are in the teeth of the judgment of the Hon’ble Supreme

Court in the case of A.A. Calton Vs. Director of Education reported in

AIR 1983 SC 1143. The petitioners are seeking quashing of those two paragraphs of the notification as contained in Annexure-10 to the writ

applications and upon holding these two Rules of the Rules, 2013 arbitrary and bad in law a further mandamus has been prayed for directing the

respondents to grant seniority, salary and all other benefits to the petitioners counting their services from 08.10.1998 and 21.05.1999 as Assistant

Teachers of Biology and Mathematics respectively. It is their contention that they have been selected pursuant to the advertisement no.1/88 and 1/95

and therefore they should be treated at par with the other appointees who have been appointed as Assistant Teachers in different subjects in the year

1997. The petitioners claim that the Vidyalaya Seva Board had sent a list of selected candidates for appointment on the post of Assistant Teachers of

Biology on 08.10.1998 and on the post of Assistant Teachers in Mathematics on 21.05.1999, therefore they are entitled to be treated at par with the

appointees from the same advertisement.

In order to appreciate the case of the petitioners, it would be just and proper to take note of the two Rules of the Rules, 2013 (Annexure-10) which

are impugned in the present writ applications. The relevant Rule 5 and 11 read as under:-

 “5. Appointment to Post- The candidates shall be appointed against newly sanctioned posts from the date of issue of appointment letter.

Service Condition:- The Pay-Scale of teacher appointment under these rules shall same as prescribed for the teachers for the Nationalized

Secondary School appointed in regular scale. But for the purpose of pension, the contributory pension scheme 2005 shall be applicable to all the

teachers appointed under these rules. The newly created posts will cease to exist after falling vacant due to retirement of incumbent or any

other reason.â€​

Mr. P. K. Shahi, learned senior advocate assisted by Sri Shahi Bhushan Singh and Gyan Abhinav, learned advocates, while pleading the case of the

petitioners, submits that the petitioners are seeking their right by virtue of their appointments made pursuant to the advertisement of 1988 and 1995. It

is pointed out that pursuant to the instructions received from the Director-cum-Secretary, Secondary Education Department, Government of Bihar

vide his letter no.6800 dated 09.03.1988 for the purpose of preparing a panel of Assistant Teachers including in the subject of Biology and

Mathematics in different high schools in the State of Bihar, an advertisement was published in daily newspaper ‘Aaj’ in August, 1988 by Bihar

School Examination Board, Patna. Interview letters were issued, the petitioners participated in the interview and thereafter the result of successful

candidates was published and a panel was prepared accordingly. As regards the panel prepared for the subject of Biology and Mathematics a

vigilance enquiry was set up and thereafter the panel was cancelled vide letter no.102 dated 20.02.1991. A direction was issued to the Chairman,

Vidyalaya Seva Board, Patna to prepare a fresh panel with a direction that those candidates who had applied earlier would not apply.

On 29.09.1995 a fresh advertisement bearing no.1/95 was published which was shown to be in continuation of advertisement no.1/88. A copy of the

advertisement no.1/95 is Annexure-3 to the writ application. Learned senior counsel submits that on perusal of Annexure-3, it would appear that the

fresh advertisement was issued in continuation of advertisement no.1/88. Fresh interviews were held for the candidates of Biology on 17.12.1997 and

for the candidates of Mathematics in the month of September, 1998. All the writ petitioners appeared in the interview and thereafter result was

published. They were declared successful and then a list of selected candidates was published on 08.10.1998 and 21.05.1999 for the subject of

Biology and Mathematics respectively. Copies of the merit lists are enclosed as Annexure-4 series to the writ application. Despite publication of the

merit list when the petitioners were not being appointed and no action was being taken by the respondents, some of the successful candidates in the

subject Bio logy filed the writ applications, lead case being CWJC No.2994 of 2000.

By Annexure-5 to the writ application, the learned Single Judge of this Court disposed of the CWJC No.2994 of 2000 and other analogous cases.

Before the learned Single Judge a question arose as to the existence of the vacancies in view of bifurcation of the State of Bihar due to coming into

force of Bihar Re-organization Act with effect from 15.11.2000. The learned writ Court having discussed the materials available on the record finally

came to a conclusion that “………… Having regard to the fact that the figures of posts advertised and appointments made etc. leaving the

backlog of 654 or 563 vacancies tally with the figure (of backlog) mentioned by the State, I proceed on the assumption that number of backlog

vacancies is 563 and the number of reported vacancies is 534 as mentioned above.â€​

Thereafter the learned writ Court after rejecting the contention of the State that existing vacancies can be filled from the reserve category

candidates alone held that vacancies in existence at the time of commencement of the Bihar Reservation of Vacancies in Posts and Services (for

Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 cannot be treated as released. The learned writ Court also held that all

534 vacancies cannot be treated as ‘carried forward’ vacancies in view of the law laid down in Indra Sawhney’s case reported in AIR

1993 SC 477. The learned writ Court held that the State is obliged to consider the cases of the petitioners who include candidates in both unreserved

and reserved categories following 50% rule for their appointment against the existing vacancies.

The learned writ Court found that the vacancies have to be re-worked out, 30% of the available vacancies have to be left apart for the Assistant

Teachers of Primary/Middle Schools and Clerks of the Secondary Schools. The Court also found that nothing whatsoever was stated by the State

about vacancies in the project schools. The advertisement was for both the nationalized schools and the project schools. In these circumstances, the

writ Court observed that “ the State is thus required to calculate the number of vacancies and consider the case of the petitoners and others

similarly situated for their appointment from the panel against those vacancies in accordance with law……..â€​

The judgment of the learned writ Court in CWJC No.2994/2000 and other analogous matters came to be challenged in LPA No.439/2001 which

was dismissed vide order dated 16.12.2004 (Annexure-7 to the writ application). A contempt application was preferred by the petitioners. The

respondents gave an undertaking before the Hon’ble High Court that after verification of the certificates appointment letters shall be issued to the

candidates. It is the case of the petitioners that their certificates were duly verified, but the State Government preferred Special Leave to Appeal

(Civil) No(s).6369-6375/05 in the Hon’ble Supreme Court. Some of the candidates who were aggrieved by the order of the Hon’ble Division

Bench also went to the Hon’ble Supreme Court. However, vide order dated 28.08.2012 (Annexure-9) all the SLPs were dismissed.

A reading of the order passed by the Hon’ble Supreme Court would show that the Hon’ble Supreme Court was informed that during the

pendency of the SLPs the entire process of selection for appointment of teachers in the State of Bihar had undergone a change but having taken note

of the same the Hon’ble Supreme Court refused to interfere with the impugned judgment passed by the High Court.

After dismissal of the SLPs and during hearing of the contempt application before the Hon’ble High Court, the State Government came out

with the notification contained in memo no.850 dated 31.05.2013 (Annexure-10). The petitioners have been appointed under the Rules, 2013 and

because under the Rules, 2013 by virtue of Rule 5 and 11 therein they are sought to be covered under the ‘New Pension Scheme,’ they have

raised a grievance, as stated above.

It is their contention that the Rules, 2013 has been framed with sole intention to frustrate the legitimate claim of the petitioners and, therefore, this

Court while holding Rule 5 and 11 of Rules, 2013 arbitrary and bad in law should issue direction to the respondents to grant the petitioners all the

benefits such as seniority and salary which were in existence prior to 1.09.2005 i.e. the date when the new pension scheme came into force.

The claims of the petitioners have been contested by respondent nos. 1 and 3. In the joint counter affidavit they have submitted that in compliance

of the order of this Hon’ble Court, the vacancies were recalculated on the basis of cadre strength and the figures were placed before this

Hon’ble Court, thereafter the respondents were directed to make appointments against the recalculated posts and it was further directed to inc

lude such 30% vacancies which have been left out for the teacher of middle school and the clerks of secondary school. Accordingly, 675 new posts

were again created in both subjects and after sanctioning the posts necessary appointments were made.

It is submitted that during the pendency of the SLPs before the Hon’ble Supreme Court the employment rules had gone under a complete

change and new Employment Rules, 2006 came into force. Under the new Employment Rules, 2006, the posts of Assistant Teachers in secondary

schools in regular scale were not existing and the vacancies accrued after enforcement of Employment Rules, 2006 were converted in the fixed salary

pay. Since the previous rules of appointment were also repealed, therefore, Special Appointment Rules, 2013 and 2017 were published only for the

appointment of candidates in both subjects. Therefore, the posts were created in the year 2013 and 2017 afresh with condition that these posts shall

cease to exist after the retirement or death of the newly appointed teachers. It is submitted that the claims of the petitioners are not in accordance

with law and the writ petitioners cannot be allowed the benefits of seniority, payment of salary and pensionary benefits treating them as appointed

from the date of receipt of panel i.e. 08.10.1998 and 25.01.1999 respectively.

Regarding Rule 11 of the Special Appointment Rule, 2013 it has been clearly provided that for the purpose of pension, the Contributory Pension

Scheme, 2005 shall be applicable to all the teachers appointed under Rule, 2013. It is stated that the State Government vide Finance Department letter

no.1964 dated 31.08.2005 has taken a policy decision that after the enforcement of new pension rule, 2005 i.e. after 31.08.2005, the Government

Servant appointed after 31.08.2005 shall be allowed the benefits of Contributory Pension Scheme. Therefore, the petitioners who were appointed

much after the enforcement of Rule 2005 are not entitled for grant of the benefits of old pension rule. It is also submitted that the claims of the

petitioners for the payment of salary from 1998 or 1999 and further claim for their seniority with retrospective effect are misconceived and misplaced.

The panel of 1998 and 1999 were already cancelled and the said panel was not restored by the learned writ Court in CWJC No.2994 of 2000.

Contesting the response of the State, learned senior counsel representing the petitioners would submit that once the Letters Patent Appeal

preferred by the State was dismissed on 16.12.2004, the State government had no occasion to come out with new Appointment Rules, 2006,

particularly when the process of selection pursuant to the said advertisement was under process and during the course of hearing of contempt

application, the then Director Secondary Education had given undertaking that after verification of testimonials/certificates the appointment letter will

be issued. It is contended that after commencement of selection process, the respondents cannot put some riders to alter the terms and conditions of

the advertisement and any action contrary to settled law is contemptuous. It is submitted that the delay in the matter of appointment of the petitioners

occurred due to laches on the part of the respondents which cannot be treated as weapons to victimize the petitioners. Reliance has been placed on

the judgment of the Hon’ble Supreme Court in the case of Poonamal & Ors. Vs. Union of India & Ors. reported in (1985) 3 SCC 345, N.T.

Bevinkatti, Etc. Vs. Karnataka Public Service Commission & Ors. (1990) 3 SCC 157 and a Division Bench judgment of this Court in the case of

Ashok Kumar Vs. the State of Bihar in C.W.J.C. No.454 of 1992 decided on 16.10.1992. All these judgments have been cited to support their

contention that the petitioners who have been appointed pursuant to the selection process initiated in the year 1988 and 1995 cannot be deprived of

their rights by retrospective operation of law i.e. in this case by virtue of New Employment Rules of 2006 and the New pension Scheme of 2005.

CONSIDERATION

Having heard learned senior counsel for the petitioners and learned Advocate General assisted by other State Law Officers and upon perusal of

the pleadings available on the record, we find that these writ applications are to be decided in the light of their peculiar facts situation. The Hon’ble

Supreme Court while passing the order dated 28.08.2012 in the Special Leave to Appeal (Civil) No(s).6369-6376/2005 (Annexure-9) has taken note of

the peculiar facts situation of the case in the following words:-

 “On 9.3.1988, the Director, Secondary Education, Government of Bihar sent a requisition to the Vidyalaya Sewa Board for sending panels of

teachers in Biology, Mathematics and other subjects. An advertisement being 1/88 was published on 30.07.1988 for appointment of Assistant

Teachers in the Nationalized Secondary Schools as well as in the Project Schools. The Vidyalaya Sewa Board prepared a panel in 1990 for

appointment in Biology subject. On 20.02.1991, the State Government did not approve the panel and cancelled it and demanded a fresh panel. In the

meantime, the new reservation policy of the State Government came into force. The Board in continuation of the earlier advertisement No.1/88, issued

a fresh advertisement on 29.04.1995. The respondents, who were duly selected pursuant to the said advertisement issued in 1995, have still not been

appointed. In the meantime, the entire process of selection for appointment of teachers in the State of Bihar has undergone a change. Be that as it

may, in the peculiar facts and circumstances of these cases, we are not inclined to interfere with the impugned judgment passed by the High Court.

The special leave petitions are accordingly dismissed.â€​

I have noticed that initially as regards the panel prepared for the subject of Biology and Mathematics, a vigilance enquiry was held and the panel

was cancelled vide letter no.102 dated 20.02.1991, thereafter in 1995 a fresh advertisement took place and fresh panels were prepared in the year

1998 and 1999 but the said panels were not given effect to, the State of Bihar was bifurcated w.e.f. 15.11.2000, in these circumstances while deciding

CWJC No.2994, 7732, 8926 and 9259 of 2000 (Annexure-5) the learned writ Court was called upon to examine as to the existence of the vacancies.

It was also occasioned because of the intervening circumstances such as coming into force of the Reservation Act of 1991 and the judgment of the

Hon’ble Supreme Court in the case of Indra Sawhney (supra). There was one more difficulty in finding out the existing vacancies and that was

bifurcation of the State of Bihar with effect from 15.11.2000. The learned writ Court having gone through the contentions of the parties in these writ

applications had to finally accept the figures given by the State for purpose of deciding those cases. The learned Writ Court took note of the fact that

some more vacancies might have occurred in the meantime and because the earlier number of vacancies have been worked out in the undivided State

of Bihar and now a portion thereof has to be allocated to the State of Jharkhand, it is clear that the vacancies have to be re-worked out. Further the

learned writ Court held that 30% of the available vacancies have to be left apart for the Assistant Teachers of Primary/Middle Schools and Clerks of

the secondary schools. The advertisement was for both the nationalized schools and the project schools. In the ultimate analysis it was held that the

State was required to calculate the number of vacancies and consider the case of the petitioners and others similarly situate for their appointment from

the panel against those vacancies in accordance with law.

A perusal of the judgment of the learned writ Court in CWJC No.2994/2000 and other analogous matters (Annexure-5) would show that in the

said writ application these petitioners were not seeking any relief to treat them at par with the other appointees of 1997 in different subjects. They

were not even seeking seniority or payment of salary treating them to have been appointed with effect from the date of preparation of select list/panel

for the purpose of Assistant Teacher in Biology and Mathematics. The Writ Court observed that even though the petitioners as empanelled candidates

do not have any vested indefeasible right to be appointed from the panel, they certainly have a right to be considered for such appointment. It is in this

background that the writ Court issued direction to the respondent â€" State to consider the case of the petitioners and other similarly situated persons

for their appointment after recalculating the number of vacancies.

It is a matter of record that the judgment of the learned writ Court (Annexure-5) came to be challenged in the Letters Patent Appeal and after

dismissal of the Letters Patent Appeal, in course of hearing of the contempt application before the High Court, the State Government came out with

statement that after verification of the testimonial of the candidates, they would be offered appointment letters but at the same time the State

Government preferred SLPs before the Hon’ble Supreme Court and during the pendency of the SLPs before the Hon’ble Supreme Court

since the year 2005, the State Government came out with some policy decisions.

The first policy decision was taken to abolish the old pension scheme and to replace it with a new pension Rules, 2005 which came into force with

effect from 01.09.2005. Under the New pension Rules, 2005, the persons appointed after coming into force of the New Pension Rule, 2005 shall be

entitled for the benefits of the contributory pension scheme. The second policy decision came into force when the State Government decided to repeal

all the previous rules, resolutions, orders, and instructions in the matter of appointment in the secondary school of the State of Bihar and enforced

Bihar District Board, Bihar Municipal Bodies, Secondary and Higher Secondary Teacher’s Employment and Service Condition Rules 2006

(referred to as the ‘Employment Rules, 2006’) vide Department’s notification no.11 NI-02-13 (9) part 1226, dated 11.07.2006 and

department’s notification no.11 NI-02-13/91 (Part) 1227 dated 11.07.2006. By virtue of the Employment Rules, 2006 powers of appointment in

Secondary Schools along with the provisions of payment of fixed salary in lieu of salary in time scale to post of teacher were vested in the Panchayati

Raj Institutions/Municipal bodies in accordance with provisions of the Employment Rules, 2006. Vide Government Resolution No.1409 dated

05.08.2006, the vacant posts of Assistant Teachers (trained) under the non-plan head were converted into the post of fixed salary and further that all

post of Assistant Teacher in regular pay scale falling vacant in future would be converted to fixed salary post under the provisions of Employment

Rules, 2006.

A perusal of the notification dated 31.05.2013 (Annexure-10) by which Rules 2013 came into force, would show the reasons as to why and under

what circumstances the Department of Education, Government of Bihar had to come out with Rules, 2013. The Rule, 2013 also called Special Rules

2013 was framed because on the one hand the previous rules for appointment of teachers in the secondary schools were already repealed but on the

other hand the State Government was required to comply with the orders passed by this Court in CWJC No.2994/2000 and other analogous matters.

The Government of Bihar in exercise of its power conferred under Section 15 of Bihar Non Government Secondary School (Taken Over

Management and Control) Act, 1981 decided to frame the Special Rules, 2013 with sole intention to take steps for appointment against 329 vacancies

in Biology and 312 in Science-Math Subject.

The Special Rules, 2013 clearly states in Rule 1(iii) that “ it shall come into force with effect from the date of issue of the notification and shall

be valid for appointment in accordance with the orders of the Hon’ble High Court relating to the Advertisement No.01/88 and in its (01/88) series

published in the year 1988 and 1995 by the dissolved Vidyalaya Sewa Board and after the present appointment it shall cease to exist automatically.â€​

Rule 5 of the Special Rules, 2013, as quoted above, states that the candidates shall be appointed against newly sanctioned posts from the date of

issue of appointment letter. Rule 11 provides the service condition under which it is specifically stated that the pay-scale of teacher appointment under

these rules shall be the same as prescribed for the teachers for the Nationalized Secondary School appointed in regular scale.†This part of Rule 11

demonstrates the intention of the State Government to provide regular scale of pay to these petitioners which they would not have been entitled to

under the new Employment Rules of 2006, however for the purpose of pension, the Special Rules, 2013 has made it clear that contributory pension

scheme 2005 shall be applicable to all the teachers appointed under these rules. It further provides that newly created posts will cease to exist after

falling vacant due to retirement of incumbent or any other reason.

After the Special Rules, 2013 (Annexure-10) was notified, the consolidated appointments of the petitioners were notified on 22.06.2013 vide

Annexure-11 and 11/1 respectively to the writ application. The petitioners submitted their joining without any protest, but after a year or so they

decided to challenge the Rule 5 and 11 of the Special Rules, 2013.

Once I notice the two major policy decisions of the State government during the intervening period, it appears to us that the petitioners cannot

claim discrimination in the matter of their appointments and the benefits available to them pursuant to such appointments. These are not the cases

falling in the category of cases where during on going selection process a new rule or guideline has been introduced in the matter of on going

recruitment process. In my considered opinion in the facts of these cases it cannot be said that the State government came out with any law, norm or

guidelines introducing something new in the on going selection process. The petitioners have been appointed following the same process which were in

vogue at the time of advertisement, but by virtue of judicial order, however due to the intervening circumstances after recalculation of existing

vacancies when they came to be appointed, by virtue of two policy decisions of the State government as mentioned above fresh sanction of posts

were required.

The reliance placed by the petitioners on the judgment of the Hon’ble Supreme Court in the case of A.A. Calton (supra) and other judgments

noted above seems to be misplaced inasmuch as the facts situation of these cases are totally different from that of the case of A.A. Calton (supra)

and other judgments referred above.

In the case of A.A. Calton (supra) the appointment of one Mr. A.P. Joseph as Principal of Ranikhet Intermediate College, Ranikhet which was a

minority institution having the protection of Article 30 of the Constitution in preference to Mr. A.A. Calton came to be challenged. It was submitted

that the Selection Committee had started proceedings for selection in the year 1973, the Committee recommended three persons, the appellant was

given third rank in that recommendation. However, the Regional Deputy Director of Education did not approve the said selection. The matter was

again remitted to the Selection Committee and on the second occasion the Selection Committee recommended the names of the appellant and

respondent no.2 a higher rank. That selection also was disapproved by the Deputy Director. The third recommendation was made by the Selection

Committee which was questioned by the appellant before the High Court. The High Court quashed the selection made by the Selection Committee on

the third occasion as having been without jurisdiction and directed the Director of Education to make an appointment in accordance with Section 16(F)

(4) of the U.P. Intermediate Education Act, 1921 (2 of 1921). Pursuant to the direction of the High Court the Director appointed Mr. A.P. Joseph to

the post which was questioned by the appellant leading to filing of the appeal before the Hon’ble Supreme Court. The High Court dismissed the

petition. A contention was raised before the High Court by the appellant that the appointment made by the Director was opposed to the relevant

provisions of the Act as they stood on the date of the appointment since on that day by reason of the amendment made to the Act by U.P. Act 26 of

1975 which had come into force on August 18, 1975, the power of the Director to make an appointment had been taken away in relation to minority

institutions and in any event the Director could not have appointed respondent no.2 for the post since his selection had been disapproved earlier by the

Deputy Director. Both the contentions were rejected by the High Court. In appeal before the Hon’ble Supreme Court, after taking note of Section

16(F) of the Act as it stood prior to August 18, 1975, the Hon’ble Supreme Court found that the amending Act did not, however, provide expressly

that the amendment in question would apply to pending proceedings under Section 16-F of the Act. The Hon’ble Supreme Court found that there

was no word in Section 16-F of the Act which may be read as if by necessary intendment which would affect such pending proceedings. The process

of selection under Section 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director

becomes entitled to make a selection under Section 16-F(4) is an integrated one. The Apex Court held that at every stage in that process certain rights

are created in favour of one or the other of the candidates, therefore, Section 16-F of the Act cannot be construed as merely a procedural provision. It

was held that although the Director in the said case exercised that power subsequent to August 18, 1975 on which date the amendment came into

force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect.

If we compare the facts of the present case with that of the case of A.A. Calton (supra) it would appear that in the said case the Hon’ble

Apex Court was of the view that the process of selection under Section 16-F of the Act commenced from the stage of calling for applications for a

post up to the date on which the Director becomes entitled to make a selection under Section 16-F(4) (as it stood then). In the present case, the facts

reveal that even though the selection process was initiated in the year 1988 for the first time but the panels prepared therein were cancelled and a

fresh advertisement was issued in the year 1995. The fresh panels were prepared but were not given effect to because of intervening circumstances.

It is by virtue of the judicial order passed by the learned writ Court that the existing vacancies were recalculated after working out the vacancies

keeping in mind the guidelines of the writ Court. It is not a case where there has been any change in the rule governing the selection process. In this

case the petitioners who have been appointed by virtue of the selection process initiated in the year 1995 are seeking their rights contending that their

appointments cannot be said to have been made on freshly sanctioned post and further that despite their being a change in the policy decision of the

government with respect to all the government servant appointed on or after 01.09.2005 with regard to payment of pension, the same would not apply

in the case of the petitioners who have been admittedly appointed after 01.09.2005. In my opinion, the issues raised in the present writ application are

quite different and distinct from the case of A.A. Calton (supra).

In the case of Smt. Poonamal and others (supra)the Hon’ble Supreme Court was considering a case where two parallel schemes for payment

of family pension to the government servants were in operation. There was pre-liberalization scheme which continued to be in force for those who

retired prior to January 1, 1964 or those who did not contribute out of the death-cum-retirement gratuity, roughly styled as non-contributory scheme.

The other was the contributory scheme. Both the schemes were incorporated in Rules 54 and 55 respectively of the Civil Services Pension Rules,

1972. On September 22, 1977 the Union of India took a decision by which the pre-condition of contribution of two months’ emolument out of

death-cum-retirement gratuity was done away with. Since September 22, 1977 the contributory scheme ceased to exist. A very anomalous situation

arose because the widows of the government servants who had not agreed to make the contribution in accordance with the 1964 scheme were denied

the benefit of pension scheme and this disability continued even after the changes introduced in 1977 when the scheme ceased to be contributory.

Such widows moved the Hon’ble Apex Court in writ petitions. Widows similarly situated had also filed writ petition in the High Court of Bombay.

A Division Bench of the High Court rejected the writ petition and when the matter came to the Hon’ble Supreme Court, the Hon’ble Supreme

Court examined the concept of pension reiterating that the pension is a right not a bounty or gratuitous payment. The Hon’ble Supreme Court held

that the payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the

pension under the rules can claim it as a matter of right. The Hon’ble Apex Court referred its own judgment in the case of Deoki Nandan Prasad

V. State of Bihar reported in (1971) 2 SCC 330, State of Punjab V. Iqbal Singh reported in (1976) 2 SCC 1 and D.S. Nakara V. Union of India

reported in (1983) 1 SCC 305. In the given set of facts the Hon’ble Supreme Court found that since the family pension scheme has become non-

contributory effective from September 22, 1977 any attempt at denying its benefit to widows and dependents of government servants who had not

taken advantage of the 1964 liberalization scheme by making or agreeing to make necessary contribution would be denial of equality to persons

similarly situated and hence violative of Article 14.

A bare reading of the judgment in the case of Smt. Poonamal and others (supra) would show that the ratio of the said judgment has no application

in the facts of the present case. Further reliance of the petitioners on the case of Ashok Kumar (supra) would also be of no help inasmuch as in the

said case the Hon’ble Division Bench of this Court was considering a challenge to the validity of sub - section (3) of Section 4 of the Reservation

Act introduced by the State of Bihar by way of Ordinance namely Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes,

Scheduled Tribes and other Backward Classes Ordinance 1991 (Bihar Ordinance No.33 of 1991) which provided that a reserved category candidate

who is selected on the basis of his merit shall be counted against 50% vacancies of open merit category and not against the reserved category

vacancies. On going through the judgment of this Court in the case of Ashok Kumar (supra), it appears to me that when the midst of the selection

process the provisions of the ordinance were sought to be applied with retrospective operation, the Hon’ble Division Bench found that it will not

apply in the selection process because the same had been on the date on which it was sought to be retrospectively applied. The Hon’ble Division

Bench relied upon the judgments of the Hon’ble Apex Court in the case of State of Gujarat V. Raman Lal Keshav Lal Soni reported in (1983) 2

SCC 33 = AIR 1984 SC 161 wherein it has been held that “ The Legislature is undoubtedly competent to legislate with retrospective effect to take

away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the

do’s and don’ts of the Constitution, either prospective nor retrospective laws can be made so as to contravene Fundamental Rights.â€

However, the Hon’ble Division Bench relied upon the judgment in the case of P. Tulsi Das & Ors. Vs. Government of Andhra Pradesh reported

in AIR 2003 SC 43 (paragraphs 11 to 14) wherein the Hon’ble Supreme Court has reiterated that there cannot be a retrospective application of

laws to deprive a citizen from his rights. Paragraph 23 from the judgment of the Hon’ble Apex Court in the case of Chairman, Railway Board Vs.

C.R. Rangadhamaiah reported in (1997) 6 SCC 623 has been quoted by the Hon’ble Division Bench in the case of Ashok Kumar (supra), which I

quote hereunder:-

 “23. The said decision in Raman Lal Keshav Lal Soni5 of the Constitution Bench of this Court has been followed by various Division Benches of

this Court (See K.C. Arora v. State of Haryana6; T.R. Kapur v. Haryana12; P.D. Aggarwal v. State of U.P.8; K.Narayanan v. State of Karnataka9;

Union of India v. Tushar Ranjan Mohanty13 and K. Ravindranath Pai v. State of Karnataka14.)â€​

 “24. In many of these decisions the expressions “vested rights†or “accrued rights†have been used while striking down the impugned

provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment,

etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered

with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an

amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is

arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions

are not in consonance with the decisions in Roshan Lal Tandon3, B.S. Yadav4 and Raman Lal Keshav Lal Soni.â€​

As stated above, in the present case, there is no amendment of the Rule governing the selection process of the petitioners. The petitioners’

selection has been done following the same procedures which were in existence prior to repeal of the previous laws. The only peculiar facts of the

case is that because the previous laws governing the selection of the petitioners had already been repealed and New Employment Rule, 2006 has

come into force wherein there was no existing post with fixed pay scale, the State government in order to comply with the order of this Court had to

sanction fresh posts in fixed pay scale for which Special Rule, 2013 was brought into. This being the position, even the judgment of the Hon’ble

Division Bench in the case of Ashok Kumar (supra) will not be applicable in the present case.

In these cases what has fallen for consideration before this Court is that as to whether or not the State government is justified in coming out with

Special Rules, 2013 providing for appointment of the petitioners on a newly sanctioned post with an intention to comply with the order of the Court. I

have no hesitation in recording that for the purpose of compliance with the order of this Court the State Government had no option but to sanction

posts afresh in the subject Biology and subject Mathematics which the government did and thereby paved away for appointment of these petitioners in

the regular scale of pay which was available to the teachers of the nationalized secondary schools. In absence of Special Rules, 2013 these petitioners

could not have been appointed because after repeal of the previous rules, resolutions, orders and instructions for appointment of teachers in secondary

schools of the State of Bihar and upon coming into force of the Employment Rules, 2006, the petitioners could not have been appointed in the regular

pay-scale as prescribed for the teachers of the nationalized secondary schools. The government was required to recalculate the entire vacancies due

to intervening circumstances and fresh initiatives were required to be taken for appointment of these petitioners in order to comply with the order of

this Court. For this purpose the State government sanctioned

329 posts in subject Biology and 312 posts in subject Mathematics. By virtue of Rule 5 of the Special Rules, 2013, the candidates were appointed on

the newly sanctioned post from the date of issue of appointment letter. No fault may be found with the Rule 5.

Similarly, while prescribing the service condition under Rule 11, the State government simply took note of the existence of the Contributory

Pension Scheme, 2005 which was in force on the date of appointment of these petitioners and as the same is applicable to all the employees of the

government who were appointed on or after coming into force of New Pension Rules, 2005, it has been provided that these fresh appointees shall be

covered under the new Pension Scheme, 2005. As stated above, the New Contributory Pension Scheme, 2005 came into force by virtue of the policy

decision of the government and it has been made applicable to all the appointees after cut-off date when the New Rule came into force. No

discrimination has been done to the petitioners by pointing out under Rule 11 of the Special Rules, 2013 that the Contributory Pension Scheme, 2005

shall be applicable to all the teachers appointed under the Rules.

I am unable to accept the submission of learned senior counsel representing the petitioners that it would be a case of violation of Articles 14 and

16 of the Constitution of India if the petitioners are not allowed the same benefits under the Old Pension Scheme which have been allowed to the

appointees of 1997. Sufficient discussions have been made hereinabove to point out that the case of the petitioners have to be understood in the light

of the judgments of the learned writ Court (Annexure-5) wherein considering the various intervening circumstances and factors the learned writ Court

had directed to recalculate the entire vacancies against these two subjects and thereafter directed to consider the case of the petitioners. The peculiar

facts and circumstances of the case were even noticed by the Hon’ble Supreme Court in its order dated 28.08.2012 (Annexure-9). The contention

of the learned senior counsel that the petitioners would derive their right seeking coverage under Old Pension Scheme by virtue of the fact that they

are the appointees from 1995 advertisement seems to have lost sight of the fact that the panel prepared by the Vidyalaya Sewa Board for the two

subjects in the year 1998 and 1999 respectively were not given effect to and it is only after recalculation of the entire vacancies when under the

direction of the judgment of the learned writ Court (Annexure-5) fresh vacancies were calculated, the posts were sanctioned and then a fresh

consideration was given to the case of the petitioners, steps could be initiated for their appointment under the Special Rules, 2013. The case of these

petitioners thus stands on a different footing and cannot be treated equally with those who were appointed in other subjects in the year 1997.

In result, all these writ applications, being devoid of merit, are hereby dismissed.