Ghanshyam Prasad Singh v. the State of Bihar & ors.), as contained in Annexure
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18297 of 2012 ====================================================== 1. Arun Kumar S/O Late Rupchand Prasad Resident Of Village- Telhara, P.O+ P.S- Telhara, District- Nalanda. 2. Ashok Kumar S/O Shri Singehshwar Das Resident Of Village- Kaushalpur, P.O- Daily, P.S- Harnaut, District- Nalanda. ... .... Petitioners Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna. 2. Principal Secretary, Human Resources Department, Government Of Bihar, Patna. 3. Director, Primary Education, Bihar, Patna. 4. District Magistrate, Nalanda. 5. District Education Officer, Nalanda. 6. District Programme Officer, Nalanda. 7. Block Education Extension Officer, Karai Parsurai, District- Nalanda. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Pramod Kumar, Adv. For the Respondent/s : Mr. Ujjwal Kumar Sinha, J.C. to AAG11 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 10 17-06-2013 Heard counsel for the parties. 2. The prayer of the petitioners in this writ application reads as follows: “(a) The respondents be commanded/ directed to call the petitioners for counseling for promotion to B.A./ B.Sc. trained scale forthwith and they be further directed to grant promotion to the scale of B.A./ B.Sc. trained to the petitioners with effect from the date the person just below the petitioners in the seniority list is allowed promotion to B.A./ B.Sc. trained scale. (b) The respondents are directed/ commanded not to discriminate against the petitioners and to harass them in any manner. Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 2 (c) The respondents be further directed/ commanded to grant equivalence of Sahityalankar from Deoghar Vidyapeeth as that of graduation i.e. B.A., B.Com. and B.Sc. (d) By an ad-interim order the respondents be directed/ commanded to grant reliefs to the petitioners prayed for above during the pendency of the writ application.”
Legal Reasoning
3. Learned counsel for the petitioners in support of the aforementioned prayer has submitted that both the petitioners have obtained equivalent degree to a graduation by way of Sahityalankar and as such, they would be also qualified for being promoted to B.A. trained pay scale. He has also referred to an order of this Court dated 16.8.2012 in C.W.J.C.No. 13901/2012 (Ghanshyam Prasad Singh vs. the State of Bihar & ors.), as contained in Annexure 17 of this writ application to buttress his submission that an equivalent qualification of Sahityalankar would be sufficient for promotion in B.A. trained pay scale. 4. On the other hand, learned counsel for the State has not only referred to the statutory Rules, namely, Bihar Taken-over Elementary School Teachers Promotion Rules, 1993 (hereinafter referred to as „the Rules‟) but has also relied on a Division Bench judgment of this Court dated 27.11.2012 in C.W.J.C.No. 13836/2012 (Muralidhar Singh & ors. vs. the State of Bihar & ors.), which according to him totally covers the case of the Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 3 petitioners as well. 5. Learned counsel for the petitioners in reply submits that no doubt the Division Bench in the case of Muralidhar Singh (supra) has taken a contrary view but since it has not noticed the earlier Division Bench judgment in the case of Sanjay Kumar & anor. vs. the State of Bihar & ors., reported in 2009(4) PLJR 1038, the latest Division Bench judgment in the case of Muralidhar Singh (supra) must be held to be per incurium and as such, this Court should follow the ratio laid down in the case of Ghanshyam Prasad Singh (supra) as well as in the case of Sanjay Kumar (supra). 6. The first and foremost question which has to be taken into account is that the petitioners are the members of a cadre of teachers which has three main promotional post, namely, Matric trained post being the basic post, the first promotional post being graduate trained teachers promotional post and Post graduate trained teachers post leading to post of Headmaster. All these posts are well defined under 1993 Rules which apart from the other things lays down the minimum educational and training qualification and minimum tenure under Rule 5 which for the sake of clarify and convenience is quoted hereinbelow: “5. Minimum educational and training qualifications and Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 4 minimum tenure of service.-(1) For promotion to Grade 3- Trained graduate and minimum 12 years of service in grade-2 or Matric trained and minimum 18 years of service in Grade-2. (2) For promotion to Grade 4- Trained graduate and minimum 8 years of service in Grade-I in the event of promotion from grade-1 to the grade-4 in case of non- availability of teachers in grade-3 and grade-2. (3) For promotion to Grade-6.- Trained post-graduate and minimum 12 years of service in Grade-5, or trained graduate and minimum 18 years of service in Grade-5. (4) For promotion to Grade 7- Trained post-graudate, in the event to promotion from grade-4 to grade-7 in case of non-availability of teachers in Grade-6 and Grade-5 minimum five years of service in grade-5; Provided trained graduate teachers belonging to S.C. and S.T. may also be considered for promotion to Grade- 7 till 31st March, 1995, if trained post-graduate teachers of these categories are not available” 7. It is not in doubt that the post of B.A./ B.Sc. trained teachers is a Grade IV post whereas Matric trained selection grade is a Grade III post. The Rules framers in their own wisdom have envisaged the equivalent qualification for promotion on a Matric trained post whereas the same thing was not thought to be appropriate for a graduate trained post. Thus, irrespective of the petitioners‟ possessing qualification of Sahityalankar as the Rule itself does not envisage consideration of any other qualification Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 5 except a graduate trained teacher to be eligible for promotion on the post of B.A./ B.Sc. trained, the main basis of the petitioners for claiming such promotion automatically evaporates. 8. This Court is also mindful of the situation that in every case falling out of Service Jurisprudence it is the Rules laying down the qualification and norms of promotion which will be material. Nothing can be imagined or speculated as has been done by this Court in the case of Ghanshyam Prasad Singh (supra). Merely because Nalanda Open University allowed some Sahityalankar teacher to take admission in Post Graduation would not mean that he became Graduate in terms of Rule 5 so as to become entitled for promotion on the post of B.A. trained teacher. In any view the judgment in the case of Ghanshyam Prasad Singh (supra) having not taken notice of 1993 Rules itself has to be held per incurium as it has not considered the most relevant thing, namely, the qualification and norms of promotion in the B.A. trained scale though it has proceeded to decide that very issue. 9. Learned Counsel for the State is absolutely correct in his submissions that the issue in hand in fact stands settled by the Division Bench of this Court in the case of Muralidhar Singh (supra) wherein the Division Bench after noticing the 1993 Rules had held as follows: Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 6 “We are informed that the petitioners are governed by the Bihar Taken Over Elementary School Teachers‟ Promotion Rules, 1993 (hereinafter referred to as „the Rules). Clause-8 of sub-section (1) of Rule 2 of the Rules defines “Grade-6” to mean “Trained graduate Selection Scale Rs. (2200-4000)”. Clause 14 of the said sub-section defines the term “Trained graduate” to mean “those persons who are graduates or possess equivalent qualification and are trained”. Rule 5 of the said Rules provides for “eligibility”. Clause 3 of the said Rule 5 provides, “for promotion to Grade-6- Trained post- graduate and minimum 12 years of service in Grade-5, or trained graduate and minimum 18 years of service in Grade-5”. The petitioners claim that they having obtained qualification of Sahitya Alankar from Hindi Vidyapeeth, Deoghar; they possess qualification equivalent to graduate; the petitioners being trained graduates, are entitled to promotion to Grade-6. The question that precipitates is whether the qualification of Sahitya Alankar possessed by the petitioners is equivalent to graduate and that the petitioners are eligible for promotion to Grade-6. We have to refer to Articles 358 and 359 of the Bihar Education Code. Article 358 deals with “recognition of certificate from National Universities and the equivalence with respect to the degrees granted by the recognized University.” As far as Hindi Vidyapeeth, Deoghar is concerned, the only recognized qualifications Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 7 are „Praveshika‟ equivalent to Secondary School Examination or Matriculation and Sahityabhushan equivalent to Intermediate. It further says that the said recognition was extended upto 31st December, 1987. Meaning thereby that since 1st January, 1988 even those qualifications are not considered equivalent for the purpose of appointment of teachers. Evidently the qualification of Sahitya Alankar is not recognized for the purpose of appointment of teachers. Article 359 of the Bihar Education Code makes the intention of the State Government not to engage any teacher who does not possess a Secondary School Examination certificate from a recognized Board or a degree from a statutory University. It reads thus: “Article 359. Appointment to teacher‟s post forbidden on the basis of equivalence of Certificates.- In order to raise the quality of teaching in school, it has been decided by the State Government that only those persons who have passed examinations held by the Bihar School Examination Board, Central Board of Education, Secondary Examination Boards of other States or Degrees obtained from statutory Universities shall be compulsory for appointment to the post of teachers in the Primary, Middle and High Schools. (2) x x x x x x------ (3) But if teachers of Primary, Middle and High Schools pass examination equivalent to Intermeidate, Gradate and Post-Graduate Degrees whose Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 8 equivalence is recognized by the Personnel Department as mentioned in the preceding Article, may be promoted to higher pay scale beyond matriculation. This facility shall not be given to Middle trained teachers for getting Matric trained pay scale on the basis of equivalence. For getting Matric trained scale of pay, a Middle trained teacher must pass the Secondary School Examination from the Bihar School Examination Board.” It may be reiterated here that the qualification of Sahitya Alankar is not mentioned in the preceding article, Article 358. It is thus clear that the qualification of Sahitya Alankar secured from Hindi Vidyapeeth, Deoghar is not recognized for the purpose of appointment and promotion of the teachers.
Decision
In above view of the matter, we hold that in the State of Bihar the certificate of Sahitya Alankar conferred by the Hindi Vidyapeeth, Deoghar is not recognized for the purpose of appointment or promotion of a teacher. The same view has been expressed by this Court in the matters of State of Bihar & ors. v. Mamta Kumari [2010(4) PLJR 318]; and of Poonam Sharma v. State of Bihar [2012(1) PLJR 226].” 10. As would be noticed when the Division Bench of this Court in the case of Muralidhar Singh (supra) has precisely gone into this very aspect in an elaborate manner and therefore, the aforesaid view taken by the Division Bench is also binding on Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 9 this court. Even otherwise when the Rules do not permit of any equivalent qualification as noticed above, there would be hardly any scope for a person not being graduate trained but only claiming to be a holder of the equivalent qualification of Sahityalankar to contend that he is eligible for promotion on the post of B.A. trained teacher. 11. The submission of the learned counsel for the petitioners that the judgment of the Division Bench in the case of Muralidhar Singh (supra) is per incurium because it has not considered the earlier Division Bench in the case of Sanjay Kumar (supra) has to be only also noted for its being rejected. The case of Sanjay Kumar (supra) had arisen out of an appointment on the post of librarian under Bihar Nagar Nikay Madhyamik Awam Uchhttar Madhyamik Shiksha (Niyojan Awam Seva Sharten) Niyamawali, 2006 and thus, the same did not any way relate to promotion on the post of B.A. trained teacher under 1993 Rules. It is well settled that a judgment would be relevant only to the issues involved therein. Thus in view of the fact that the scope of 1993 Rules was not at all considered in the case of Sanjay Kumar (supra) nor the same was one relating to promotion in B.A. trained pay scale, the later judgment of Muralidhar Singh (supra) being per incurium does not arise. The two judgments are in two Patna High Court CWJC No.18297 of 2012 (10) dt.17-06-2013 10 different fields and merely because the issue of qualification of Sahityalankar was involved in both of them will not make the case of Sanjay Kumar (supra) applicable in the facts of the present case. 12. Thus, having given anxious consideration to the issues involved in this writ application this Court is of the considered opinion that since the petitioners do not possess the statutory qualification laid down for promotion on the post of B.A./ B.Sc. trained pay scale in 1993 Rules their prayer for being promoted is wholly misconceived. 13. This writ application is, accordingly, dismissed. (Mihir Kumar Jha, J) surendra/-