Setback to 4 lakh contractual teachers in Bihar as Supreme Court refuses to regularise them

In a setback to nearly four lakh contractual teachers in Bihar, the Supreme Court on Friday refused to regularise their services and set aside the Patna High Court ruling that they were eligible to get equal pay for equal work. A bench of Justices Abhay Manohar Sapre and UU Lalit allowed the plea of the Bihar government challenging the October 31, 2017 high court order and declined to treat contractual teachers at par with regular educators.

The top court said the Bihar government was justified in having two different streams or cadres for teachers and there has been no violation of the rights of 'Niyojit' (contractual) teachers nor has there been any discrimination against them.

It, however, raised concern over the emoluments made available to Niyojit teachers at the initial stage and suggested that the state may consider raising the scales of such teachers at least to the level suggested by the three-member committee.

"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 state government is not unreasonable or irrational," the bench said.

"The advances 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.

"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," the bench said.

It said 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 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 top court said.

The apex court said it does 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," it said.

If these are the benefits or rewards which the society stands to gain and achieve, the state ought to be given appropriate free play, the court said.

"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.

"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 court said.

It said that  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 before this court, the matter raises concern.

"The teachers must be entitled to decent emoluments. In the chart referred..., 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," the bench said.

The contractual teachers in Bihar were appointed on fixed salary under the 2006 rules called the 'Niyojit Shikshak Niyukti Niyamawali'.