IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.2270 of 2024

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1. Sandeep Kumar Jha Son of Chandra Mohan Jha, Resident of Village and
P.O.- Parsando, P.S.- Haveli Kharagpur, District- Munger (Bihar).
2. Md. Khalik Husain, Son of Md. Hakim Mansoori, Resident of Village-
Kushdhar, P.O.-Bishunpur, P.S.- Baghaila, District- Rohtas at Sasaram.
3. Shahema Afrin, Wife of Shahid Aqbal, Resident of Village and P.O.- Biur,
P.S. Chainpur, District- Kaimur (Bhabua).
4. Purnima Pal, Wife of Manoj Kumar, Resident of Village and Post- Nauhatta,
P.S.- Belaow, District - Kaimur (Bhabua).
5. Bharati Kumari, Wife of Rupkant Kumar Resident of Village and Post-
Babhangama, P.S.- Birpur, District - Begusarai (Bihar).
6. Sandeep Kumar Verma, Son of Ashok Kumar Verma, Resident of Village
Bari Tola, P.O. and P.S.- Buxar, District- Buxar (Bihar).
7. Abhishek Kumar, Son of Bharat Singh Resident of Village and Post-
Akhlaspur Ward No.- 1, P.S.- Bhabua, District - Kaimur (Bhabua).
8. Ranjan Kumar Singh, Son of Rambahadur Singh Resident of Village
Kanethi, P.O. Bhachaula, P.S.- Kudra, District- Kaimur (Bhabua).
9. Vikash Kumar, Son of Rajkishore Singh Resident of Village and Post
Bikrampur, P.S.- Cheriya Bariyarpur, District Begusarai (Bihar).
10. Deepak Kumar Mandal, Son of Girish Prasad Mandal, Resident of Village
West Tola Bholsar, P.O. Ekchari, P.S.- Khalgaon, District Bhagalpur (Bihar).

... ... Petitioner/s

Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Chief Secretary, Government of Bihar, Patna.
3. The Additional Chief Secretary, Department of Education, Government of
Bihar, Patna.
4. The Director (Secondary Education), Education Department, Government of
Bihar, New Secretariat, Vikas Bhawan, Bailey Road, Patna.
5. The Bihar Public Service Commission, through its Chairman, 15, Jawaharlal
Nehru Marg, Bailey Road, Patna.
6. The Chairman, Bihar Public Service Commission, Bihar, Patna.
7. The Secretary, Bihar Public Service Commission, Bihar, Patna.
8. The Examination Controller (TRE-2), Bihar Public Service Commission,
Bihar, Patna.

... ... Respondent/s

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Appearance :
For the Petitioner/s : Mr. Nityanand Mishra, Adv.
Mr. Alok Abhinav, Adv.
For the State : Mr. Ajay Kumar, AC to GP4
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For the B.P.S.C. : Mrs. Parul Prasad, Adv.

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CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
CAV JUDGMENT
Date :29-05-2024
Heard learned counsel for the petitioners, learned

counsel for the State and learned counsel for the B.P.S.C.

2. Having heard learned counsel for the parties and for

the reasons stated in this interlocutory application, this I.A. No.

01/2024 is allowed and the reliefs prayed in this interlocutory

application shall also be treated as a part of the relief prayed in

the main writ application.

3. That the present writ application is being filed on

behalf of the petitioners for the following relief(s):-

“(i) For issuance of a writ in the nature of mandamus

directing/commanding the respondents/authorities
concerned to grant (5 marks per year and maximum 25
marks) of preference/weightage in the Advertisement No.
27/2023 dated 04.11.2023 (Annexure -P/3) published by the
Bihar Public Service Commission (hereinafter referred to
as the 'BPSC' (respondent no.5) and upcoming Teacher
recruitment examinations to the 'Guest Teacher who has
appointed through Resolution issued vide Memo No.51
dated 25.1.2018 (Annexure-1 to this writ application)
issued by the then Secretary, Education Department,
Government of Bihar, Patna under the order of Hon'ble
Governor of Bihar.
(ii) For issuance of writ in the nature of mandamus a
directing/commanding the respondents/authorities
concerned to follow the Rule no. 6 (Merit List) of the
Advertisement No. 27/2023 (Annexure -P/3) published by
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the BPSC (respondent no.5) for the appointment as the

'School Teacher' by which (5 marks per year and maximum
25 marks) of preference/weightage given to the employed
Teacher on contract basis in Backward Class and Extreme
Backward Class Welfare Department but the respondents
concerned have not given 5 marks preference/weightage to
the petitioners who are Guest Teacher.
(iii) Further for issuance of writ in the nature of mandamus
directing/ commanding the BPSC (respondent no.5) to
publish supplementary result in favour of the Guest Teacher
who are working since 5 and half years.
(iv) Further for issuance of writ in the nature of mandamus
directing/ commanding the respondents to regularize the
service of the petitioners according to the 'Bihar District
Board Secondary and Senior Secondary Teachers'
(Employment and Service Condition) Rule, 2006' and
'Bihar Municipal/Local Bodies Secondary and Senior
Secondary Teachers' (Employment and Service Condition)
Rule, 2006' and not to disturb the service of the petitioners
till the age of 60 years i.e. age of retirement like other
teachers of the secondary/primary schools of the
Government of Bihar and pay the remuneration/salary
accordingly.
(v) Further for direction to the respondents concerned not
to take steps with respect the petitioners to terminate them
from their job.
(vi) Further for direction to the respondents concerned not
to make any employment/selection/appointment in place of
the petitioners.
(vii) The interlocutory application no.1 of 2024 is filed on
behalf of the petitioner for granting stay on Advertisement
no. 22/2024 dated 07.02.2024 (TRE-3), published by
B.P.S.C. and to grant (5 marks per year to maximum 25
marks) of preference/weightage in the Advertisement no.
22/2024 dated 07.02.2024 (Annexure-P/6) for the guest
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teachers.
(viii) For any other relief/reliefs for which the petitioners
are entitled to in accordance with law.”

4. The fact of the present case, in short, is that the

petitioners are working as ‘Guest Teachers’ in different subjects

in different schools of different districts of Bihar and they are

residing in the State of Bihar. The Education Department,

Government of Bihar, came with a Resolution vide Letter

No.9/Bi.Vi.Pa.Sa-09/2015 issued vide Memo No.51 dated

25.01.2018 to appoint/employ 4257 vacant posts of 'Guest

Teachers' in different subjects i.e. English, Mathematics,

Physics, Chemistry, Zoology and Botany on remuneration @

Rs.1000/- per day maximum Rs.25000/- in a month, in

Upgraded Secondary Schools situated in Zila Parishad and

Nagar Nikay of the State under Government/Government

Takeover/Nationalized Secondary Education Campaign and the

said letter was also circulated to all the District Education

Officers and other concerned Officers of the State of Bihar

(Annexure-P/1 to the writ petition). In pursuance of the

Resolution dated 25.01.2018 as contained in Annexure-P/1, the

Director Secondary Education, Bihar, Patna (Respondent No.4)

issued letter vide Memo No.264 dated 18.05.2018 explaining

the conditions for employment/selection of the 'Guest Teachers'.

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In view of the Resolution issued vide Memo No.51 dated

25.01.2018, an advertisement was published inviting

applications from the eligible candidates and in view of the said

advertisement the petitioners, as having B.Ed/M.Ed

Qualification, duly applied for the concerned subject teachers as

per their qualifications enclosing their requisite educational

qualifications and other requisite certificates and subsequently

application form receipt was issued to the candidates.

5. Thereafter, on the basis of academic qualification

and other qualifications, a merit list was prepared according to

the roster as per Letter No.234 dated 26.04.2018 and Letter

No.309 dated 12.06.2018 and uploaded on the website and in

this regard a notice was issued to all Headmasters/Acting

Headmasters of 10+2 High Schools of the concerned District,

which was issued with the joint signature of the District

Programme Officers and District Education Officers mentioning

therein that the merit list is uploaded on website and on the basis

of the merit list the concerned candidates whose name was

appearing in the merit list and join the respective posts i.e.

'Guest Teacher' in the concerned respective schools within

stipulated time as mentioned in the said notice.

6. Thereafter, the petitioners joined the said post and

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started discharging their duties to the satisfactions of all

concerned even to the satisfaction of the students and after

joining the post of respective subject and due to their hard

labour towards the students the result of the students of the

school become better and progressive. After joining the posts

the petitioners were engaged in conducting the Lok

Sabha/Vidhan Sabha/Panchayat Election/Examination Centre

Duty/Evaluation and in this regard order of appointment of

Presiding & Polling Officers was issued for conducting

Elections. Several States i.e. Delhi, Haryana, Uttrakhand etc.

have adopted the theory of 'Guest Teachers' appointment and

after appointment some States have by taking resolutions and by

making policy have taken over the service of the 'Guest

Teachers' and so far the Uttrakhand State is concerned the

service of Guest teachers of Uttrakhand was also taken over in

view of the Apex Court Order dated 14.01.2020 passed in S.L.P

(Civil) Nos. 428-430 of 2019 (Rajesh Dhami and others vs.

The State of Uttrakhand and Others) by which the Hon'ble

Apex Court directed the State of Uttarakhand to

adjust/regularize the Guest Teacher, the State of Bihar should

follow and should adopt and regularize the Guest Teacher of the

State of Bihar.
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7. The Education Department, Govt. of Bihar, had

enacted Bihar Municipal Body Secondary and Higher

Secondary School Service (Appointment, Promotion, Transfer,

Disciplinary Action and Service Conditions) Rules, 2020, vide

Notification No. 01-01/2020 (1110) dated 20.08.2020. The Rule

No.10(iv) which states to grant 5 marks per year

preference/weightage to the 'Guest Teacher' for their work

duration. The rule 10 (iv) which states as :-

"भूतपूरर सै ननको की नरधरा को मे धा अं क मे 10 अं को का

अनतनरकत रे टेज दे य होगा। इसी प्रकार, उचच
माधयनमक नरदालयो मे अनतनथ नशकक के रप मे
नयूनतम एक ररर की अरनध तक कायर करने राले
अभयथीरगण को मे धा अं क मे 05 अं को का अनतनरकत
रे टेज दे य होगा।"

8. The B.P.S.C. has published an Advertisement

bearing Advertisement No.27/2023 dated 04.11.2023 in which

70,622 posts of School Teachers under different Govt. Schools

have advertised for the selection process. The BPSC has given

(5 marks per year and maximum 25 marks) of

preference/weightage to the employed Teacher on contract basis

in Backward Class and Extreme Backward Class Welfare

Department (Annexure-P/3 of the writ petition). In the

advertisement no. 22/24 dated 07.02.2024 the same is

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mentioned i.e. 5 marks per year and maximum 25 marks of

preference/weightage to the employed Teacher on contract basis

in Backward Class and Extreme Backward Class Welfare

Department, but it is not given to the Guest Teacher. The

petitioners have qualified STET Examination. The petitioners

have appeared in Advertisement No. 27/2023 for the selection

process of School Teacher but the B.P.S.C. has not given

preference/weightage of 5 marks per year to the Guest Teacher

who are working since more than 5 and half years. Petitioners

have filed a joint representation before the concerned authorities

for the grant of (5 marks per year and maximum 25 marks) of

preference/weightage to the 'Guest Teacher' in Advertisement

No. 27/2023 and to publish supplementary result in favour of

the Guest Teacher who have worked for more than 5 and half

years. The respondents concerned also grant (5 marks per year

and maximum 25 marks) of preference/weightage to the 'Guest

Teacher' in upcoming Teacher recruitment examinations

(Annexure-P/5 (series) to the writ petition). The concerned

authority has not heard the petitioners and again published the

advertisement no. 22/24 dated 07.02.2024 and no weightage is

given to the Guest Teacher.

9. A supplementary affidavit has been filed on behalf

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of the petitioners in which it is submitted that the Director

(Secondary Education), Education Department, Government of

Bihar, Patna, has issued a Letter No. 325 dated 30.03.2024

(Annexure- P/8) with a reference of Departmental Resolution

No. 51 dated 25.01.2018 (Annexure-P/1). In view of the said

letter, it is directed by the respondent no.4 that the service of

'Guest Teachers' who have been in service in the Higher

Secondary Schools of the State under the provision made in

Departmental Resolution No. 51 dated 25.01.2018 (Annexure-

P/1), should not be continued since 01.04.2024 under any

circumstances. Along with this, it is also directed to all the

District Education Officers ensure to provide to the (Secondary

Education), Education Department, Government of Bihar, Patna

a certificate that there is not even a single 'Guest Teacher' in

service in your district and send the certificate in this regard to

the Education Department by 03.04.2024.

10. A counter affidavit has been filed on behalf of the

respondent no. 4 in which it is stated that the petitioners are

Guest teachers appointed on temporary basis and fixed

remuneration of ₹1000/- per working day with maximum of

₹25,000/- per month, till the Niyojan/employment of teachers in

the Government Schools, converted to Government Schools and

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Upgraded Higher Secondary Schools under National Secondary

Education Abhiyan. It further transpires that the petitioners have

approached this Hon'ble Court for grant of relaxation in the

nature of award of 5 marks per year, subject to maximum of 25

marks for each year of satisfactory work, as awarded to the

contractual teachers working in Backward Class and Extreme

Backward Class Welfare Department in advertisement

No.27/2023 or to grant regularization to their services.

11. Learned counsel for the State submits that from

perusal of the Memo No.51 dated 25.01.2018 (Annexure-1 to

the writ petition) it is abundantly clear that the petitioners’

services were temporary in nature who were employed with an

objective of completing the syllabus in the respective schools in

the absence of Niyojit teachers in the schools for reason of

vacant positions. It is further clearly mentioned that their service

shall be taken only till the Niyojit teachers are employed on the

sanctioned posts in the schools. There is no provision prescribed

for their service being regularized as their employment was

temporary in nature which fact has been specifically mentioned

in the Memo No.51 dated 25.01.2018. The petitioners accepted

their services as Guest teacher in the schools being fully aware

and without any objection to the above mentioned fact.

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12. Learned counsel for the State further submits that

there is no provision prescribed in the above mentioned Memo

No.51 dated 25.01.2018 for grant of grace marks or any other

relaxation to such teachers in the appointment process as prayed

for by the petitioners. The award of grace marks or relaxation is

a policy decision within the domain of the State and no such

provision/decision has been brought on record by the

petitioners. The schools under control and management of the

Education Department is different from the schools under

control and management of the Backward and Extremely

Backward Class Welfare Department which is apparent from the

fact that the posts under these two schools have been advertised

separately though under the same advertisement. The posts of

school teachers under the Education Department is mentioned at

Column-2 of the advertisement whereas the posts under the

Backward and Extremely Backward Class Welfare Department

is mentioned at Column-3 of the advertisement. The control and

management of the schools as above mentioned is done by their

respective Departments and the Education Department has no

interference in the service of the teachers employed under the

Backward and Extremely Backward Class Welfare Department.

The Guest teachers engaged as per Memo No.51 dated

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25.01.2018 and the teachers working on contract basis in the

school under Backward and Extremely Backward Class Welfare

Department are two separate class who are being governed by

different departments.

13. Learned counsel for the State further submits that

there is no question of violation of Article 14 as the two classes

are entirely different from each other. The schools in which the

petitioners are working as Guest teachers is completely different

from the school under management of the Backward and

Extremely Backward Class Welfare Department. The petitioners

are Guest teachers in schools under the control of Education

Department whereas the persons against whom they are

claiming parity are contractual teachers working in schools

under control and management of Backward and Extremely

Backward Class Welfare Department. Hence, there is no

question of breach of the equality principle between the two set

of classes as enshrined in the Constitution of India. So far the

contention of the petitioner that the provision of award of 5

marks of Guest Teachers laid down in the Bihar Municipal Body

Secondary and Senior Secondary Teachers (Employment and

Service Condition) Rules, 2020 is concerned with the process of

Niyojan which has been done away by the enactment of the

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Bihar State School Teachers (Appointment, Transfer,

Disciplinary Proceedings and Service Condition) Rules, 2023.

As per the new Rules, the appointment to the post of school

teachers is being done by a competitive examination conducted

by the Bihar Public Service Commission (Annexure-R-4/1 of

the counter affidavit).

14. Learned counsel for the State further submits that

the Rule 19(i) of the Bihar State School Teachers (Appointment,

Transfer, Disciplinary Proceedings and Service Condition)

Rules, 2023 inter alia mentions that persons appointed under

Bihar Zila Parishad Secondary and Senior Secondary Teacher

(Appointment and Service Conditions) Rules, 2006 (as amended

from time to time), Bihar Zila Parishad Secondary and Senior

Secondary School Service (Appointment, Promotion, Transfer,

Disciplinary Proceedings and Service Conditions) Rules, 2020,

Bihar Nagar Nikay Secondary and Senior Secondary Teacher

(Appointment and Service Conditions) Rules, 2006 (as amended

from time to time), Bihar Nagar Nikay Secondary and Senior

Secondary School Service (Appointment, Promotion, Transfer,

Disciplinary Proceedings and Service Conditions) Rules, 2020,

Bihar Panchayat Elementary School (Appointment and Service

conditions) Rules, 2012 (as amended from time to time), Bihar

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Panchayat Primary School Service (Appointment, Promotion,

Transfer, Disciplinary Proceedings and Service Conditions)

Rules, 2020, Bihar Nagar Elementary Teacher (Appointment

and service Conditions) Rules, 2012 (as amended from time to

time) and Bihar Nagar Elementary School Service

(Appointment, Promotion, Transfer, Disciplinary Proceedings

and Service Conditions) Rules, 2020 shall not be eligible to

make any claim under any provision of these Rules except for

the specific provisions made for their appointment in the cadres

governed by the State Government under these Rules.

15. Lastly, learned counsel for the State submits that

the service conditions of the petitioners have been laid down

vide Memo No.51 dated 25.01.2018 and the appointment on the

posts of school teachers in various schools of the Education

Department is being done as per the Bihar State Teachers

(Appointment, Transfer, Disciplinary Proceedings and Service

Condition) Rules, 2023 for which advertisement No.26/2023

and 27/2023 have already been issued and the process of

appointment has been concluded.

16. A counter affidavit has also been filed on behalf of

the B.P.S.C. in which it is stated that there is no provision either

in the requisition received from the Departments or in the

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advertisement for providing marks to the Guest Teacher. The

Respondent Commission is a recommending body and in the

matter of appointment or otherwise abides by the rules and

regulations framed by the State Government. Thereafter, the

Answering Respondent published Advertisement No. 22/2024

dated 07.02.2024 for the post of School Teacher(TRE 3.0) under

Education Department and SC & ST Welfare Dept., Govt. of

Bihar in accordance with the requisitions received from the

abovesaid concerned Departments. The Advertisement

No.22/2024 for appointment to the post of School Teacher(TRE

3.0) did not even contain any provision pertaining to grant 5

marks for each 1 year of employment and maximum 25 marks

to guest teachers who were earlier under employment in

accordance with the requisitions sent by the requisitioning

departments. Further, it may not be out of place to state here that

the School Teacher Competitive Examination TRE 3.0 was

conducted on 15.03.2024 and was later on cancelled vide Notice

dated 20.03.2024.

17. Having heard the arguments advanced on behalf

of the parties and from perusal of the records, it is clear that

Advertisement No.27/2023 dated 04.11.2023 (Annexure-P/3 to

the writ petition) published by the B.P.S.C. and the appointment

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in the said advertisement has already been concluded, therefore,

that prayer of the petitioner is not accepted by this Court to

direct the B.P.S.C. to make merit list in the advertisement no.

27/23. It is admitted fact that the petitioners are working as

Guest Teacher and the award of the grace marks of relaxation is

a policy decision with the domain of the State and no such

provision/decision has been taken by the State Government to

give the benefit of five marks per year maximum to 25 marks to

the Guest Teacher. The management of the Backward and

Extremely Backward Classes Welfare Department has given the

said grace marks to the contractual teachers not to the Guest

Teacher. It is policy matter of the State to grant grace marks to

contractual basis teacher not to Guest Teacher that is violation

of Article 14 of the Constitution of India.

18. Considering the fact and circumstances of the

case, I am of the view that both the contract teachers and the

guest teachers are discharging same duties as they are teaching

the students in the school and there is no difference between the

contract teachers and the guest teachers. In my opinion, the

Guest teachers are also entitled to 5 marks for each 1 year of

employment and maximum 25 marks as given to the contract

teachers. Accordingly, this writ petition is allowed and the State

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Government is directed to take final decision to grant of 5 marks

for each year of employment and maximum 25 marks to the

guest teacher as given to the contract teachers, within one

month. The Advertisement no. 22/24 dated 07.02.2024 is

hereby stayed.

19. Interlocutory application, if any, shall also stand

disposed of.

(Anjani Kumar Sharan, J)

anand/-
AFR/NAFR NAFR
CAV DATE 17.05.2024
Uploading Date 29.05.2024
Transmission Date NA