Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11760 of 2011 ====================================================== Udit Narayan Jha Late Janardan Jha Buddhuchak Ps Korha Katihar Versus .... .... Petitioner/s 1. The State Of Bihar 2. The District Magistrate cum Chairman District Education Establishment Committee,Katihar 3. The Deputy Development Commissioner Katihar 4. The District Education Officer Katihar .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Amaresh Kumar Singh & Mr. Kumar Kamal Neyan For the State : Mrs. Nivedita Nirvikar GP-3 & Mr. Manoj Kumar, A.C. to G.P.3 ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 5 02-12-2013 The petitioner seeks a direction upon the respondents particularly the District Education Establishment Committee, Katihar (respondent no.2) to consider the case of the petitioner for grant of graduate trained scale and the consequential benefits. It is submitted that the respondents have prepared a list of the candidates on 5.06.2009 (Annexure-4) including the name of the petitioner who were not held entitled to grant of such scale of pay in the light of the government circular/instruction dated 04.01.2010 (Annexure-C to the counter affidavit filed on behalf of respondent no.3). According to the petitioner, he had passed the B.Sc. 2
Legal Reasoning
Patna High Court CWJC No.11760 of 2011 (5) dt.02-12-2013 2 / 7 examination from Bhagalpur University in the year 1980. The service book of the petitioner (Annexure-2) records the aforesaid facts. The minimum educational qualification for the post of Assistant Teacher was Madhyama which is equivalent to Matriculation. The petitioner was then undergoing training in an Institute. He along with others was selected and appointed on 13.04.1982 as Assistant Teachers on stipend basis until completion of the training course. Relevant document in this regard has been enclosed as Annexure-1. It is the stand of the petitioner that he completed his training whereafter the respondents granted him the matric trained scale with effect from 16.04.1984. The respondents thereafter again considered him and granted the senior selection grade scale with effect from 16.04.1986. The State respondents came out with the Primary Teachers Promotion Rule 1993. By reason of the provisions of the said Rule eligible teachers having graduate qualification was/were entitled to grant of graduate trained scale. For the said purpose, a list said to be the gradation list was prepared and circulated by the respondents on 02.07.2008, copy whereof has been enclosed as Annexure-3. The petitioner figured at sl. no. 560 of the said list. For the purpose of grant of promotion to the graduate trained scale the District Education Establishment Committee in its 3 Patna High Court CWJC No.11760 of 2011 (5) dt.02-12-2013 3 / 7 meeting held on 05.06.2010 (Annexure-B to the counter affidavit of the State respondents) prepared a list of teachers who were not entitled to grant of such promotion in the light of the government circular/instruction contained in letter bearing memo no.04. dated 04.01.2010. On perusal of the said order dated 04.01.2010 it appears that the grant of graduate trained scale was not required to be given with retrospective effect. Those who had enhanced their educational qualification while in service without taking permission and/or leave of the respondents were also not required to be considered for grant of such promotion/scale. The writ petition asserts that having placed the petitioner in the list of not qualified persons respondents granted promotion to several teachers to the graduate trained scale. Referring to the statements made in paragraph 11,12 and 13 of the writ petition it has been contended that person(s) who were similarly placed but juniors to the petitioner in the gradation list (Annexure-3) were also granted promotion whereas the case of the petitioner was left out on the strength of his inclusion in Annexure D to the counter
Decision
affidavit(equivalent to Annexure-4 of the writ petition). Counsel for the petitioner has, thus, submitted that the matter requires to be considered afresh by the District Education Establishment Committee as the name of the petitioner has 4 Patna High Court CWJC No.11760 of 2011 (5) dt.02-12-2013 4 / 7 wrongly been included in the list of unqualified persons on the basis of the circular/instruction of the State Government dated 04.01.2010 (Annexure-C to the counter affidavit of the State) which does not debar the petitioner since he was graduate at the time of initial joining the service. Learned counsel for the State, on the other hand, submitted that the petitioner appears to have passed the graduation examination while in service. However, no document has been placed before this Court to support the said contention. On the contrary, the petitioner has asserted in the writ petition that he had already acquired the graduate degree before joining the service. It has also been pointed out that no rule or provision provides that a person acquiring higher educational qualification than the minimum eligible educational qualification required for the post can be debarred from being appointed. Having heard the parties it appears from the statements made in the writ petition that the petitioner acquired graduate degree before joining the post of Assistant Teacher. Counsel for the petitioner has referred to the endorsement(s) made by the authorities in his service book wherefrom it appears that the petitioner had acquired the graduate degree when he was selected and appointed as the Assistant Teacher. The State respondents 5 Patna High Court CWJC No.11760 of 2011 (5) dt.02-12-2013 5 / 7 have relied on Annexure-C in order to contend that the petitioner did not qualify for such grant of graduate trained scale since he acquired the graduate degree while in service which does not appear to be correct position/fact. Another aspect of the matter which has not been dealt with by the respondents in the counter affidavit is with regard to the discriminatory treatment meted out to the petitioner in the matter of grant of such promotion and/or scale of graduate trained teacher. The petitioner has stated as under in paragraph 12 and 13 of the writ application:- “12. That other persons appointed along with petitioner as named in paragraph 5 of the writ petition have also been granted promotion including Chun Chun Prasad Mahto who was graduate at the time of appointment but appointed on Madhyama trained basis. 13. That it is relevant to state that Binod Kumar serial no.47 of the graduate science promotion list and junior to petitioner at serial no.677 of the gradation list was also B.Sc. at the time of appointment but appointed on matric trained scale. Anjani Kumar Jha was B.Com. At the time of appointment but appointed in matric trained scale(serial no.170) of promotion list of graduate Arts. He is also junior to petitioner. Similarly Jitendra Prasad Gupta (serial no.162 of graduate 6 Patna High Court CWJC No.11760 of 2011 (5) dt.02-12-2013 6 / 7 Arts) was B.Com at the time of appointment but appointed on Madhyama basis. These are just few instances and there are other such cases also.” Aforesaid statements have been replied in paragraph 13 of the counter affidavit which reads thus:- “13. That with regard to the statement made in para 11 to 13 of writ petition it is stated that these matter of record therefore no comment is required.” This is another aspect of the matter which requires re- consideration by the District Education Establishment Committee. . Seen thus, the petitioner has made out a case for issuance of a direction upon the District Education Establishment Committee, Katihar (respondent no. 2) for re-consideration of the case of the petitioner in accordance with law. Let a direction be issued commanding the respondents particularly the District Education Establishment Committee Katihar(respondent no.2) to re-consider the case of the petitioner in the light of the observation made hereinabove and the records concerning the petitioner as also the circular of the State Government (Annexure-C to the counter affidavit) within two months from the date of receipt/production of a copy of this order. The State respondents shall also take into consideration the stand 7 Patna High Court CWJC No.11760 of 2011 (5) dt.02-12-2013 7 / 7 taken by the petitioner before this Court that he has been discriminated by the respondents in grant of such graduate trained scale. On a review/reconsideration of the matter if it is found by the District Education Establishment Committee that the petitioner is entitled to grant of such scale the respondents will give him the benefits thereof at least with effect from the date junior(s) to the petitioner was/were granted the said benefit. The writ application is disposed of. (Kishore Kumar Mandal, J) HR/-