Rajeev Ranjan Prasad, J.
1. In these writ applications, the petitioners are the Government Teachers who entered in service taking privilege of the instructions issued by the Government of Bihar providing for appointment on compassionate ground. They are the wards of the deceased government teachers who died in-harness while rendering their services at different Middle/High/Primary Schools in the district of Madhepura.
2. The fact that the petitioners are the wards of those deceased teachers who died prior to 01.07.2006 i.e. the date on which the Bihar Primary Teacher (Appointment and Service Condition) Rules, 2006 (hereinafter referred to as the 'Rules for Appointment of Teachers, 2006') came into force.
3. The petitioners had made their applications for appointment on compassionate ground prior to coming into force of the Rules for Appointment of Teachers, 2006 but because of ban imposed by the Government in Human Resource Department vide Departmental Letter No. 2039 dated 17.11.2003 and letter No. 626 dated 16.04.2005, their appointments were not being considered. The ban was lifted vide Departmental Letter No. 8/1078 dated 01.07.2006 (Annexure '2' to the writ application) and thereafter, their names were recommended by the District Compassionate Appointment Committee (hereinafter referred to as the 'Committee'). On 20.09.2006 the petitioners were considered for appointment on the post of teacher in the regular pay-scale but the respondents made the petitioners to join as Block Teacher in fixed remuneration. This gave rise to a dispute. As according to the petitioners, even the Government in it's Department of Personal and Administrative Reforms had clarified vide Letter No. 3/Anu-17/2005 ka 6905 dated 17.10.2008 that the post of Panchayat Teacher /Block Teacher /Town Teacher is not a post under the Government, hence no recommendation could have been made for appointment on such posts. The petitioners were aggrieved because they understood that their recommendations were made for regular posts in regular pay-scales but they were compelled to join as a contract teacher under the Rules for Appointment of Teachers, 2006 on a fixed pay.
4. These writ petitioners, therefore, moved this Court by filing a writ application being C.W.J.C. No. 1017 of 2008 which was disposed of on 22.01.2010 (Annexure '4'). The learned Single Judge took note of the submissions of the petitioners that in many similar cases namely, C.W.J. C. No. 5188 of 2009 (Amrendra Kumar & Ors. Vs. The State of Bihar) and in C.W.J.C. No. 8014 of 2007 (Manoj Prakash Chaurasia & Ors. Vs. The State of Bihar & Ors.) and its analogous cases, this Court had directed the respondents to give them the regular basic scale in accordance with law from the date of their appointment along with the arrears, the Writ Court issued a direction to the respondents to ensure that the petitioners are given regular pay-scales in accordance with law from the date of their appointments along with arrears.
5. It appears that during the relevant period, the controversy as to whether the legal heir of a deceased teacher who was appointed much prior to coming into force of the Rules for Appointment of Teachers, 2006, is entitled to be appointed on a government post and not on the post of Panchayat /Prakhand/Nagar Shikshak and that the Committee which recommends for compassionate appointment cannot recommend for such posts. The two Division Bench judgments, the first in the case of Dilip Kumar Bhattacharya Vs. State of Bihar & Ors., (2004) 4 PLJR 889 and second in the case of Brajesh Kumar Vs. The State of Bihar & Ors., (2010) 1 PLJR 339 came to be considered before the another Hon'ble Division bench of this Court and they took a view that the matter should be heard and disposed of by a Larger Bench to put the controversy at rest. The Three Judges Bench was thereafter constituted to hear L.P.A. No. 321 of 2010 ( State of Bihar & Ors. Vs. Rajeev Ran Vijay Kumar ) which came to be decided on 11.05.2010. After deliberating upon the various case laws and the government circulars as also the certain provisions of the Rules for Appointment of Teachers, 2006, the Hon'ble Full Bench held in paragraph 27 and 28 as under:
"27. We have referred to the above circular in extenso only to appreciate that a legal heir or dependent having no legal right to be appointed to a government post cannot claim it as a matter of right. The State Government has withdrawn the preference that existed in the circular dated 12.07.1977. It has made an alternative arrangement that the teachers serving in the erstwhile government schools, when die in harness, their legal heirs can be accommodated as Prakhand Teachers. The view expressed in Brajesh Kumar (supra) that they cannot be appointed in the said schools is really not a matter to be adverted to by this court as it is the policy decision of the Government to appoint such teachers in those schools by carving out an exception. As has been stated in many a decision, a compassionate appointment by its very nature is an exception and the same has to be treated as an exception for all purposes. Possibly, the matter would have been different had the rule been in force conferring a particular privilege on the legal heir or dependent of the government teacher, who died in harness. That not being the position, the Government has the power / authority to change the policy from time to time and that having been done, no fault can be found with the appointment given to the appellant on the post of Prakhand Teacher in the Koilwar Block.
28. In view of our preceding analysis, we are unable to persuade ourselves to accept the view expressed in Brajesh Kumar (supra) and, accordingly, the same stands overruled. Any decision following the said judgment is deemed to be overruled."
6. The judgment rendered by the Full Bench in L. P.A. No. 321 of 2010 came to be challenged before the Hon'ble Apex Court in Special Leave to Appeal (C) No (s). 29655 of 2010 (Rajeev Ran Vijay Kumar Vs. The State of Bihar & Ors.). On 26.11.2012 the Hon'ble Apex Court passed the following order in the said Special Leave to Appeal (C) No. 29655 of 2010:
"Counsel for the respondent-State submits that if the petitioners withdraw this petition and move the authorities concerned, their cases shall be considered by the authorities concerned keeping in view the facts and circumstances of each case. In view of the above statement, petitioners are permitted to withdraw this special leave petition with liberty to move the authorities concerned who shall take a decision thereon expeditiously.
In view of the order passed above, the application for intervention does not survive and the same is dismissed."
7. It is the specific statement of the petitioners that the appellants in Special Leave to Appeal (C) No. 29655 of 2010 were adjusted in the regular pay-scales on the post of Assistant Teachers in the different district of State of Bihar.
8. These petitioners filed their representations before the District Authorities claiming similar benefits, in view of the undertaking of the State before the Hon'ble Apex Court in the case of Rajeev Ran Vijay Kumar (supra). While their representations were being considered, another judgment of the Hon'ble Apex Court in Civil Appeal No. 5090 of 2013 [arising out of the judgment and order dated 19.08.2011 in L.P.A. No. 1164 of 2009 and C.W.J.C. No. 7218 of 2007(Vishwanath Pandey Vs. The State of Bihar & Ors.)] came. In the said case father of the petitioner had died on 14.10.2004, the petitioner had submitted his application on 05.02.2005 for appointment on compassionate ground but the same remained pending consideration. The petitioner had to move this Court in C.W.J.C. No. 7258 of 2005 for a Mandamus to the concerned authorities which was disposed of with a direction to the State authorities to consider the case of the petitioner for appointment on compassionate ground. Pursuant to the said direction, the recommendation was made by the Committee but the petitioner was not given appointment because of the ban imposed by the State Government. Once again the Committee considered the case of the petitioner and recommended him for appointment as a Teacher and thereafter, the petitioner was appointed. This was done on 25.09.2006 because the earlier recommendation for appointment of the petitioner was returned by the then Regional Deputy Director of Patna Division, Patna vide office letter no. 307 dated 02.09.2006 on the ground of non-availability of the post. The subsequent recommendation issued on 25.09.2006 ultimately resulted in his appointment and joining on the post of Assistant Teacher in regular pay-scale. The Hon'ble Apex Court recorded in paragraph '9' and '10' of the judgment as under:
"9. We have heard learned counsel for the parties and scrutinized the records. It is not in dispute that even though the District Compassionate Committee had made recommendations on 29.11.2005 that the Appellant may be appointed on a Class-Ill post, he was not given appointment because of the ban imposed by the State Government. It is also not in dispute that after lifting of the ban, the District Compassionate Committee recommended the Appellant's appointment as Teacher on compassionate ground and he was appointed against the vacant post by District Superintendent of Education, Buxar. That order was neither rescinded nor modified by the Competent Authority on the premise that after coming into force of the 2006 Rules, the Appellant could have been appointed only by the Panchayat Samiti on the post of Prakhand Teacher. Therefore, the Division Bench of the High Court was not at all justified in recording a finding that the Appellant could have been appointed only as a Prakhand Teacher by the Panchayat Samiti on fixed pay. Unfortunately, the Division Bench overlooked the fact that the Appellant had been appointed as per the policy of compassionate appointment framed by the State Government and that policy does not envisage the appointment of the dependent of a deceased employee on fixed pay.
10. For the reason aforesaid, the appeal is allowed, the impugned judgment is set aside and the order passed by the learned Single Judge in CWJC No. 7218 of 2007 is restored. The Respondents are directed to implement that order within a period of three months from the date of receipt/production of copy of this order."
9. These petitioners claimed that their cases are standing on similar footing with that of the case of Vishwanath Pandey (Supra). It is, however, further case of the petitioners that their matters had also travelled to the Hon'ble Supreme Court in Civil Appeal No. 4807 of 2017 (arising out of SLP (C ) No. 3605 of 2014 Chandra Shekhar Azad & Ors. Vs. The State of Bihar & Ors.) which was heard along with other Civil Appeal No. 4776-4777 of 2017 (Mukesh & Anr. Vs. The State of Bihar and Ors.) Both the appeals were heard together and disposed of vide common order on 03.04.2017 giving liberty to the petitioners and others to approach the State Government for suitable relief in terms of the order passed in S.L.P. (c ) No. 29655 of 2010 (Rajeev Ran Vijay Kumar). The relevant part of the judgment of the Hon'ble Apex Court in the case of Mukesh (supra) reads as under:
"4. For the foregoing reasons, we direct that the Appellants who were recommended for appointment to Class III or Class IV posts prior to 01.07.2006 will either be appointed on Class III or Class IV posts on regular basis or will be entitled for continuance as Teachers on a regular pay scale. The other Appellants who were appointed after 01.07.2006 will not be entitled for the relief of regular pay scales. However, we grant them liberty to approach the State Government for suitable relief in terms of the order passed in SLP (C) No. 29655 of 2010."
10. After the aforesaid judgment was rendered by the Hon'ble Supreme Court in the case of Mukesh (supra) while considering the representation of the petitioners, the State respondents came out with Memo No. 120 dated 01.02.2018 issued under the signature of the District Education officer and the District Programme Officer (Establishment), Madhepura. These petitioners were placed in regular pay-scales (9300- 34800+4200) and were appointed in different schools in the district. It would be important to reproduce the Memo No. 38 dated 12.01.2018:
11. After the petitioners had already joined their respective posts by virtue of the notifications with regard to their posting issued vide Memo No. 120 dated 01.02.2018, the respondents issued office order vide Memo No. 167 dated 07.02.2018 by which they cancelled the earlier office order contained in Memo No. 120 dated 01.02.2018 and it's corrected order contained in Memo No. 1555 dated 07.02.2018 (Annexure 12). These petitioners, thereafter, challenged the office order dated 07.02.2018 by filing C.W.J.C. No. 8963 of 2018 which was disposed of on 11.05.2018 with a direction to the respondent authorities to consider the case of the petitioners in the light of the order passed by the Hon'ble Division Bench of this Court in L.P.A. No. 1472 of 2015 reported in 2019 (1) PLJR 444. The Hon'ble Division Bench was considering the challenge to a judgment and order dated 19.05.2009 passed by learned Single Judge in C.W.J.C. No. 6282 of 2009. The learned Single Judge had issued a direction to the respondents to grant appointment to the petitioners in pursuance of the recommendations made in their favour and strictly in accordance with the Government directive dated 17.10.2018.
12. Apparently, the said judgment of the learned Single Judge was passed prior to the Full Bench Judgment of this Court in the case of Rajeev Ran Vijay Kumar (supra) and much before the subsequent judgment of the Hon'ble Apex Court in the case of Vishwanath Pandey (supra) and Mukesh & Anr. (supra) respectively. Thus, the Hon'ble Division Bench while hearing L.P.A. No. 1472 of 2015 took note of the entire developments including the judgment of the Full Bench of this Court and subsequent judgment of the Hon'ble Apex Court.
13. In paragraph 17, 18 and 19 of the judgment the Hon'ble Division Bench took note of the relevant paragraph from the judgments in the case of Rajeev Ran Vijay Kumar (supra), Vishwanath Pandey (supra) and Mukesh (supra). Thereafter, the Hon'ble Division Bench reproduced the Memo No. 38 dated 12.10.2018 and held in paragraph 21 and 22 and 23 as under:
"21. A cursory glance to the advisory issued by the Education Department at paragraph 1, would leave no room for any confusion that a conscious decision has been taken by the State Government in consideration of the cases of present kind in which deaths of teaching/ non-teaching employees had taken place prior to 1.7.2006 to resolve that in case the District Compassionate Committee makes a recommendation in case of a Government teacher deceased prior to 1.7.2006 for appointment of his dependents on Class III or Class IV or for appointment against the post of a teacher then the appointment of the dependant has to be made in terms of the recommendation of the District Compassionate Committee against a regular post and against a regular pay scale. The resolution is loud and clear and concludes that in case the death of a Government teacher has taken place prior to 1.7.2006 and recommendation has been made by a competent District Compassionate Committee for appointment of his dependent against a regular post and against a regular pay scale under the Government, then that recommendation has to be acted upon and the appointment as to be provided against a regular Class III or Class IV or against the post of a teacher against a regular pay scale.
22. In our opinion, this resolution puts at rest all speculations and all disputes and in fact renders this appeal infructuous for once the Education Department itself has acted on the liberty of the Supreme Court to clarify the issue, this contest is rendered academic. Another interesting aspect of the matter which we need to record is, the affidavit of the Principal Secretary of the Education Department filed on 11.4.2018. Now even though he admits to issuance of the notification dated 12.1.2018 in the light of the order passed by the Supreme Court in the case of Mukesh (supra) and even though he admits to revisit the issue of compassionate appointment in the light of the direction issued in C.W.J.C.No. 560/2015 but yet he does not shoulder the responsibility of taking this case to its logical conclusion in the light of his own clarification dated 12.1.2018 qua the recommendation of the District Compassionate Committee, Patna.
23. For the reasons so discussed, we are certainly not persuaded with the argument of Mr. Anjani Kumar, learned AAG-4, to interfere with the opinion expressed by the learned Single Judge rather the advisory bearing memo no. 38 dated 12.1.2018 of the State Government in its Education Department binds them to act on the recommendation of the District Compassionate Committee, Patna dated 30.10.2006 in so far as it concerns these petitioners and we would remind the Principal Secretary, Education Department of the time stipulated in the order of the learned Single Judge which continues to binds him for ensuring its compliance and for taking the matter to its logical conclusion."
14. It appears that in compliance of the judgment and order dated 11.05.2018, passed by learned writ Court in C.W.J.C. No. 8963 of 2018, the respondents reinstated these petitioners on their respective posts and pay-scales vide Memo No. 1120 dated 17.09.2018 as contained in Annexure '14' to the writ application. Thus, the judgment dated 11.05.2018 which was passed in the light of the Hon'ble Division Bench judgment of this Court in L.P.A. No. 1472 of 2015 attained finality.
15. The occasion to file the present writ application arose to the petitioners only when the respondents once again issued Memo No. 336 dated 07.03.2019 by which the earlier Memo No. 38 dated 12.01.2018 has been withdrawn with retrospective date and as a consequence thereof a letter bearing Memo No. 944 dated 19.07.2019 (Annexure '16') has been issued by the Director, Primary Education, Government of Bihar calling upon the District Education Officer, Madhepura and the District Programme Officer (Establishment), Madhepura to amend the order issued in favour of the petitioners in the light of the judgment of the learned Writ Court rendered on 11.05.2018 in C.W.J.C. No. 8963 of 2018. Annexures '15' and '16' to the writ application are, thus, under challenge before the learned Writ Court.
16. On 01.08.2019 when the writ application was heard by the learned Writ Court, it seems that the learned Writ court was addressed on the issue of the post of Government Teachers in regular scales being a regular cadre post and that of the post of Niyojit Shikshak under the Panchayat/Block appointed pursuant to coming into force of the Rules for Appointment of Teachers, 2006 being a different cadre. The judgment rendered by the Hon'ble Supreme Court recently in the case of State of Bihar & Ors. Vs. Bihar Secondary Teachers Struggle Committee and Ors, (2019) 2 PLJR 454 (SC) was placed to contend that while hearing a challenge to the Division Bench judgment of this Court on the principle of equal pay for equal work to the Niyojit Shikshak, the Hon'ble Apex Court accepted the contention of the State that the post of Assistant Teacher in regular cadre is a dying cadre, therefore, the legal position that emerges from the judgment of the Apex Court is that the cadre of the Assistant Teacher and the Teachers appointed against the post of Panchayat Shikshak/Block Shikshak forms two different cadres. It is the contention of learned Senior Counsel for the petitioners in this case that after the judgment of this Court in C.W.J.C. No. 8963 of 2018 has been given effect to, these petitioners have entered into the cadre of Assistant Teachers notwithstanding the fact that the said cadre is a dying cadre. It was contended that this issue was before the Hon'ble Apex Court and the observations of the Hon'ble Apex Court was in the case of equal pay for equal work.
17. It appears that in view of the judgment of the Hon'ble Supreme Court in the case of Bihar Secondary Teachers Struggle Committee and Ors. (supra), the learned Writ Court expressed its difficulty in accepting the contention of learned Senior Counsel for the petitioners that the addition to the dying cadre is permissible. The learned Writ Court took a view that the strength of the cadre which is dying cannot be enhanced and since the earlier decision was rendered by this Court relying upon the judgment of the Hon'ble Division Bench, in view of the pronouncement of the Hon'ble Apex Court now, the cadre of Assistant Teacher is a dying cadre, therefore, the basis of the order of this Court requires reconsideration. The learned Writ Court therefore, expressed its desire to refer the matter to a larger Bench to consider the following issues:-
1. "Whether the post of Assistant Teacher is a Dying Cadre after 2006 ?
2. Whether the Court can induct any teacher in Dying Cadre after 2006?
3. Whether the petitioners, who were regularized pursuant to the judgment of the Division Bench on declaration of law by the Apex Court, can claim that the judgment inter-party is binding and therefore, they have right to continue on regular post of Assistant Teacher on compassionate ground notwithstanding the post of Assistant Teacher is a Dying Cadre?
4. Whether the compassionate appointment against any Dying Cadre is permissible?
5. Whether the judgment of the Apex Court in the case of State of Bihar & Ors. Vs. Bihar Secondary Teachers Struggle Committee and Others (Supra) is settler on the point that the cadre of Assistant Teacher is a Dying Cadre and applies to the case of the present petitioners.
6. In addition thereto, the larger Bench has to consider the judgment of the Apex Court which was the basis for taking decision dated 19.07.2019 by the respondents, as contained in Annexure-16 to the writ petition."
18. Now so far as first question as to whether the post of Assistant Teacher is a dying cadre after 2006 is concerned, this Court finds from the judgment of the Hon'ble Apex Court in the case of Bihar Secondary Teachers Struggle Committee (supra) that while contesting the judgment of the Hon'ble Division Bench of this Court in which a direction was issued to the State Government to pay equal pay to Niyojit Shikshak and the Niyojit Shikshak were declared at par in the matter of payment of their pay and emoluments with the Government Teachers, besides other points raised on behalf of the State of Bihar, the State heavily relied upon the judgment of the Hon'ble Apex Court in the case of State of Punjab vs. Joginder Singh, (1963) Supp2 SCR 169 and Zabar Singh and others Vs. The State of Haryana, (1972) 2 SCC 275 the Hon'ble Apex Court recorded in paragraph '74' of the said judgment as under:
"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 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 Singh, (1963) Supp2 SCR 169 and Zabar Singh, (1972) 2 SCC 275 . 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."
19. The Hon'ble Apex Court also considered the observation of the Court in the case of Secretary, Finance Department and Others vs. West Bengal Registration Services Association and Others, (1993) Supp1 SCC 153 in paragraph '12' of the said judgment as regards the facts to which are ordinarily considered while fixing a 'pay structure'.
20. In paragraph '76' of its judgment the Hon'ble Apex Court held as follows:
"76. 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."
21. Further in paragraph 78 and 79 their Lordships of the Hon'ble Supreme Court recorded as under:
"78. 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 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.
79. 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."
22. From the reading of the Hon'ble Apex Court judgment, to me, it appears that the Hon'ble Apex Court has accepted the contention of the State of Bihar that the post of Assistant Teacher in regular pay-scale is a dying cadre after 2006 and as such I would answer first question saying that after coming into force of the Rules for Appointment of Teachers, 2006, the cadre of Assistant Teacher is a dying cadre.
23. So far as the second question is concerned, the answer to the same is very much available in the judgment of the Hon'ble Apex Court itself where it has been taken note of saying that by virtue of the order of the Hon'ble Apex Court 34540 Assistant Teachers came to be appointed by the State Government. At the relevant time, neither it was contended on behalf of the State nor in any other way considered by the Hon'ble Supreme Court that the cadre of the Assistant Teacher was a dying cadre and the Court could not have issued any direction to make an appointment of Assistant Teacher in the said cadre. It is evident from the materials available on the record that in the case of Rajeev Ran Vijay Kumar (supra), Vishwanath Pandey (supra) and Mukesh & Anr. (supra) the Hon'ble Full Bench of this Court and then the Hon'ble Apex Court have directed for appointment of the applicants seeking appointment on compassionate ground who had made their application prior to 01.07.2006 and the Committee had recommended their names for appointment as Assistant Teacher. This, in my opinion, in the facts and circumstances of a particular case, if the equity, justice and conscience required a Constitutional Court to direct the State Government to induct one as a teacher in the dying cadre it may be done and there cannot be read any bar on the exercise of constitutional power of the Court in issuing such direction in the given facts and circumstance of the case.
24. The facts remain that though the State Government contended before the Hon'ble Apex Court that the cadre of the Assistant Teacher is dying cadre for the purpose of contesting the issue of equal pay for equal work, till date the State Government has not come out with any appropriate declaration saying that the cadre of the Assistant Teacher is a dying cadre and no further appointment may be made therein.
25. The third question has to be answered in affirmative. These petitioners were brought in the cadre of Assistant Teachers by virtue of a decision taken by the State Government as contained in Memo No. 38 dated 12.01.2018. It is evident from the judgment of the Hon'ble Apex Court in the case of Mukesh & Anr. (supra) that while the appellants were recommended for compassionate appointment on or after 01.07.2006 their Lordships of the Hon'ble Supreme Court held that they were squarely covered by the judgment of the Full Bench of Patna High Court in the case of Rajeev Ran Vijay Kumar (spura). The petitioners before us have made categorical statement in the writ application that all the respondents before the Hon'ble Apex Court in SLP ( C) No. 29655 of 2010 were considered by the State Government as they withdrew the Special Leave Petition and then they were appointed in the cadre of the Assistant Teacher. If this is the position and after the judgment of the Hon'ble Apex Court in the case of Mukesh & Anr. (supra), the State Government came out with Memo No. 38 dated 12.01.2018 giving benefit of compassionate appointment to all the applicants who were wards of the Government Servant dying before 01.07.2006 and the petitioners were posted as Assistant Teachers in their respective schools where they have already joined, the learned Single Judge while considering C.W.J.C. No. 8963 of 2018 rightly referred the judgment of the Hon'ble Division Bench in L.P.A. No. 1472 of 2015 and directed the respondents to take a final decision with respect to these petitioners. The judgment of this Court having attained finality without there being any challenge, in my opinion, the issue of dying cadre addressed in the case of Bihar Secondary Teachers Struggle Committee ( supra) before the Hon'ble Apex Court cannot alter the otherwise binding force of inter-party judgment.
26. Learned Senior Counsel has relied upon the judgment of the Hon'ble Apex Court in the case of Ishwar Dutt Vs. Land Acquisition Collector and Anr., (2005) 7 SCC 190 to submit that in the facts of the present case the State respondents would be stopped from giving any different consideration to the petitioners. Paragraph 18, 19, 20, 21,22, 23, 24, 25, 26, 27 and 29 are reproduced hereunder for a ready reference:
"18.In the Reference Court or for that matter the High Court exercising its appellate jurisdiction under Section 54 of the Act could not have dealt with the said question. The principle of res judicata is species of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply.
19. Reference in this regard may be made to Wade and Forsyth on Administrative Law, 9th Edn., p. 243, wherein it is stated:
"One special variety of estoppel is res judicata. This results from the rule, which prevents the parties to a judicial determination from litigating the same question over again even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it. As between one another they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. These two aspects are sometimes distinguished as 'cause of action estoppel' and 'issue estoppel.'
20. In Hope Plantations Ltd. v. Taluk Land Board5 , this Court observed (SCC p.611.para31) :
"31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum."
21. In 'The Doctrine of Res Judicata' 2nd Edition by George Spencer Bower and Turner, it is stated :
"A judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it .."
22. Reference, in this connection, may also be made to Ram Chandra Singh v. Savitri Devi,2002 8 SCC 319:JT (2005) 11 SC 439 .
23. Yet recently in Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51: JT (20050 4 SC 472 in which one of us was a party, this Court observed: (SCC p. 61, paras 26-27)
"26. The object and purport of principle of res judicata as contained in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment.
27. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment."
It was further noticed(SCC p. 64, para 42)
"In Ishwardas v. the State of M. P., (1979) 4 SCC 163: AIR 1979 SC 551 this Court held:
"In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim'."
24 (Ed.:Para 24 corrected vide Official Corrigendum No. F.3/Ed.B.J./90/2005 dated 15-9-2005.). Yet again in Arnold v. National Westminster Bank Plc., (1991) 3 AllER 41 : (1991) 2 AC 93 : (1991) 2 WLR 1177 the House of Lords noticed the distinction between cause of action estoppel and issue estoppels:(All ER pp. 46 C-E and 47 C-D) "Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such, as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened..... Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue."
Here also bar is complete to relitigation but its operation can be thwarted under certain circumstances. The House then finally observed ALL ER p. 50 C-E)
"But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject-matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success".
25. In Gulabchand Chhotalal Parikh v. State of Bombay, (1965) 2 SCR 547:AIR 1965 SC 1153 the Constitution Bench held that the principle of res judicata is also applicable to subsequent suits where the same issues between the same parties had been decided in an earlier proceeding under Article 226 of the Constitution.
26. It is trite that the principle of res judicata is also applicable to the writ proceedings. (See Himachal Pradesh Road Transport Corporation v. Balwant Singh, (1993) Supp1 SCC 552: 1993 SCC (L & S ) 282 : (1993) 23 ATC 673) .
27. In Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787 it was held:
"18. It is now well-settled that principles of res judicata applies in different stages of the same proceedings. (See Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debt, (1960) 3 SCR 590: AIR 1960 SC 941) and Prahlad Singh v. Col. Sukhdev Singh, (1987) 1 SCC 727) .
19. In Y.B. Patil ( Y.B. Patil v. Yl.L. Patil., (1976) 4 SCC 66) it was held SCC p. 68, para 4)
"4..... It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent state of that proceeding..."
It was further observed: (SCC p. 798, paras31-32)
"31. In a case of this nature, however, the doctrine of 'issue estoppel' as also 'cause of action estoppel' may arise. In Thoday ( Thoday V. Thoday., (1964) 1 AllER 341: (1964) 2 WLR 371 : 1964 P 181 (CA)) Lord Diplock held : (All ER p. 352 B-D)
'....."cause of action estoppel" is that which prevents party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment.... If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam.'
32. The said dicta was followed in Barber v. Staffordshire Country Council, (1996) 2 AllER 748 (CA). A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. [See C. (a minor) v. Hackney London Borough Council, (1996) 1 AllER 973: (1996) 1 WLR 789 (CA)] ."
[See 'The Doctrine of Res Judicata', 2 Edn. by Spencer Bower and Turner p. 149.)
29. Furthermore, a writ of mandamus is required to be obeyed unless a judgment is overruled or a legislation by way of validating statute is brought into force."
27. Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Kalinga Mining Corporation Vs. Union of India & Ors., (2013) 5 SCC 252 paragraph 41 and 42 of the judgment in the case of Kalinga Mining Corporation are referred hereunder:
"41. In such circumstances, it would be difficult to accept the submissions of Mr. Venugopal that the High Court has erroneously accepted the plea raised by the L.Rs. of the Respondent that the claim of the Appellant is barred by res judicata. Considering the principle of res judicata.
42. Considering the principle of res judicata, this Court in Mohanlal Goenka v. Benoy Kishna Mukherjee, (1953) AIR SC 65: 1953 SCR 377 held as under: (AIR p. 72, para 23)
"23.. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates a res judicata'." This Court also held that:
"14.......A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides." [See State of West Bengal v. Hemant Kumar Bhattacharjee, (1966) AIR SC 1061: 1966 Cri LJ 805:1963 Supp (2) SCR 542 (AIR p. 1066, 1066, para 14.)]"
28. In the case of Bhushan Power and Steel Limited and Others Vs. Rajesh Verma and Others, (2014) 5 SCC 551 their Lordships held that change in law after inter-party decision has attained finality is not a ground on which evidence/implementation of the final inter party judgment can be avoided to, withheld or refused. Paragraph 20.2, 20.3 and 21 on which reliance have been placed are reproduced hereunder:
20.2. Another judgment cited at the bar is Prithawi Nath Ram v. State of Jharkhand, (2004) 7 SCC 261 . Para 8 of the said judgment makes the following reading: (SCC pp.264-65)
"8. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, noncompliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. In cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order ( Prithawi nath Ram v. State of Bihar, (2000) 2 PLJR 860) of the High Court is set aside and the matter is remitted for fresh consideration. It shall deal with the application in its proper perspective in accordance with law afresh. We make it clear that we have not expressed any opinion regarding acceptability or otherwise of the application for initiation of contempt proceedings."
20.3. This very principle has been reiterated by in Bihar Finance Service H.C. Coop. Soc. Ltd. v. Gautam Goswami, (2008) 5 SCC 339 in the following words:
"32. While exercising the said jurisdiction this Court does not intend to re-open the issues which could have been raised in the original proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in the original proceedings. The Court is not concerned with as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the same. It cannot ordinarily give an additional direction or delete a direction issued. In short, it will not do anything which would amount to exercise of its review jurisdiction."
21. We cannot lose sight of the fact that there is a judgment, inter parties, which has become final. Even when the Civil Appeal was being heard, certain other parties claiming their interest in these very lands had moved intervention applications which were dismissed. At that time also it was mentioned that there are 195 applicants. However, notwithstanding the same, this Court issued firm directions to the State Government to recommend the case of the Petitioners for mining lease in both the areas. In view of such categorical and unambiguous directions given in the judgment which has attained finality, merely because another judgment has been delivered by this Court in Sandur Manganese case ( Sandur Manganese & Iron Ores Ltd. v. State of Karnataka, (2010) 13 SCC 1) , cannot be a ground to undo the directions contained in the judgment dated 14.3.2012 ( Bhushan Power & Steel Ltd. V. State of Orissa, (2012) 4 SCC 246) . In so far as law laid down in Sandur Manganese (Supra) is concerned, that may be applied and followed by the State Government in respect of other applications which are still pending. However, that cannot be pressed into service qua the Petitioner whose rights have been crystallised by the judgment rendered in its favour. It cannot be re-opened, that too at the stage of implementation of the said judgment."
29. Although Mr. Anjani Kumar learned AAG representing the State of Bihar has submitted before this Court that the Memo No. 38 dated 12.01.2018 was passed on an incorrect understanding of the judgment of the Hon'ble Supreme Court in th
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e case of Mukesh & Anr. (supra), nothing has been brought to our notice to show that what were submitted before the Hon'ble Division Bench in LPA No. 1472 of 2015 was not based on the instructions. I fail to understand as to how an issue inter-party which stood concluded in LPA No. 1472 of 2015 and CWJC No. 8963 of 2018 may be reopened in the manner it has been sought to be done. There is also no material before us that at any point of time the State Government took a decision to declare the cadre of the Assistant Teacher is a dying cadre for the purpose of appointment on compassionate ground. 30. So far as 4th question is concerned, I am of the considered opinion that now after the judgment of the Hon'ble Supreme Court in the case of Mukesh & Anr. (supra) appointment on compassionate ground in the dying cadre of Assistant Teacher was permissible only in the cases where the recommendation for appointment was made by the Committee prior to 01.07.2006 but in view of the liberty granted to take a decision in respect of those who had been recommended after 01.07.2006 if the State Government took a decision vide Memo No. 38 dated 12.01.2018 to appoint these petitioners who were wards of the Government Teachers who had died prior to 01.07.2006 and by virtue of the such decision these petitioners have already been appointed, there is nothing on the record to show that it was result of a wrong understanding of the judgment of the Hon'ble Apex Court. 31. The fifth question as to whether the judgment of the Hon'ble Apex Court in the case of Bihar Secondary Teachers Struggle Committee & Ors. (supra) is a settler on the point that the cadre of the Assistant Teacher is dying cadre, I am of the view that the State Government having taken a plea before the Hon'ble Supreme Court that the cadre of the Assistant Teacher is a dying cadre and the same has been accepted by the Hon'ble Apex Court, it has to be taken as a settler on the point that the cadre of the Assistant Teacher is a dying cadre but the question as to whether it applies to the case of the present petitioners, I am of the view that it would not apply to the facts of the present case, therefore, these petitioners would not be affected. These petitioners have been appointed as Assistant Teachers by virtue of the direction of this Court which has attained finality. The judgment of the Hon'ble Supreme Court is in a case in which the issue of dying cadre was raised by way of a submission only to contest the claim of equal pay for equal work by Niyojit Shikshak. 32. In the sixth and last question the learned Single Judge has observed that the Larger Bench has to consider the judgment of the Hon'ble Apex Court which was the basis for taking decision dated 19.07.2019 by the respondents as contained in Annexure 16 to the writ application. Annexure “LANGUAGE” 33. A bare reading of Annexure '16' would show that the same has been issued in the light of the judgment of the Hon'ble Supreme Court in the case of Mukesh & Anr. (supra). It is true that in the case of Mukesh & Anr. (supra) the Hon'ble Supreme Court held that only those applicants whose cases were recommended for appointment on compassionate ground prior to 01.02.2006 would be entitled for appointment on the regular post in regular pay-scale and the other appellants who were appointed after 01.07.2006 will not be entitled for relief of regular pay-scale but at the same time liberty was granted to those appellants to approach the State Government for suitable relief in terms of the order passed in S.L.P. (c ) No. 29655 of 2010 as noticed above. In S.L.P. ( C) No. 29655 of 2010 which arises out of the judgment of the Hon'ble Full Bench of this Court in the case of Rajeev Ran Vijay Kumar (supra). In the case of Rajeev Ranvijay Kumar (supra) the State Government took a plea that if the appellants withdraw the appeal, the State would be considering their cases keeping in view the facts and circumstance of the each case. In view of that statement of the State, Rajeev Ran Vijay Kumar and others, who were the petitioners/appellants, withdrew the Special Leave Petition with liberty to move the authorities concerned. Thereafter, the State respondents considered their cases and appointed them as Assistant Teacher in the cadre. Therefore, the whole reading of the judgment of the Hon'ble Apex Court in the case of Mukesh Anr. (supra) would show that by granting liberty these petitioners were also placed in the same position as Rajeev Ran Vijay Kumar (supra) and it was open for the Government to consider their cases. Under these circumstances, if the State Government considered their cases and granted them the benefit of compassionate appointment as Assistant Teacher and upon reconsideration once again pursuant to the judgment of this Court in C.W.J.C. No. 8963 of 2018 if the petitioners have been recommended for appointment as Assistant Teachers in the cadre, by taking a plea that it was result of misunderstanding and an exercise in violation of the judgment of the Hon'ble Apex Court as contained in Annexure '16' to the writ application, the petitioners cannot be ousted from the cadre. 34. The reference is, thus, answered in the aforesaid terms. 35. Let the records of these cases be sent back to the learned Writ Court.