Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15309 of 2013 ====================================================== 1. Bhagwan Prasad Singh Son Of Late Ganesh Prasad Singh Resident Of Bishvanath Mandir Road, Lakhibagh, P.O. + P.S. Masaurhi, District - Patna 2. Akhileshwar Prasad Son Of Late Jagdish Prasad Resident Of Village - Pahima, P.O. Atnawan, P.S. Barh, District - Patna Versus .... .... Petitioners 1. The State Of Bihar 2. The Principal Secretary, Human Resources Department, New Secretariat, Patna 3. The Director, Primary Education, H.R.D. Department New Secretariat, Patna 4. Regional Deputy Director Of Education Patna Division, Patna 5. Regional Deputy Director Of Education Koshi Division, Saharsa 6. Regional Deputy Director Of Education Purnea Division, Purnea .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Pratap Sharma For the Respondent/s : Mr. Anjani Kr Sharan ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 12-08-2013 Heard learned counsel for the parties. 2. The prayer of the petitioners in this writ application is that the respondents should be directed to fill up the promotional quota of Lower Subordinate Service (L.S.S.) by way of promotion in Subordinate Education Service (S.E.S.) (Primary Wing). 3. From the averments made in this writ application it would be clear that such promotional quota of L.S.S. in S.E.S. has been admitted by the respondents and in fact on an earlier occasion a Division Bench of this Court in its order dated 30.7.2009 in L.P.A.No. 460/2007 had held as follows:
Facts
Patna High Court CWJC No.15309 of 2013 (2) dt.12-08-2013 2 “8. On a careful reading of Annexure-2 it is found that the decision contained therein provides for reserving 50 per cent of posts for promotion from LSS and not 50 per cent of the vacancies. The figures of promotions and direct recruitment given by the State in the past as mentioned in supplementary counter affidavit referred above, disclose that quota rule has not been followed strictly in the past and hence, the present stand of the State in paragraph 16 of the supplementary counter affidavit that now again the vacancies are sufficient to take care of promotion to the post of LSS against 50 per cent of the posts in SES appears to be quite just and proper stand. 9. Considering the entire facts and circumstances of the
Legal Reasoning
case, we are of the view that the order of the Writ Court requires no interference. The Letters Patent Appeals are accordingly dismissed. It is expected, however, that the State shall expedite the process of promotion of members of LSS against available vacancies for them in SES and complete the process in accordance with law as early as possible, preferably within six months.” 4. It is also on record that when a complaint was made with regard to non-compliance of the aforementioned order, in M.J.C.No. 733/2010 and its analogous cases this Court on 20.7.2012 had found the aforementioned order to have been substantially complied and in this regard it had been held as follows: Patna High Court CWJC No.15309 of 2013 (2) dt.12-08-2013 3 “ From the 7th Supplementary show cause filed on behalf of Director (Administration) cum Additional Secretary, Education Department, Govt. of Bihar it is evident that all the 289 teachers promoted to Subordinate Education Service have been given their posting through two orders contained in annexures-N and N/1. As per earlier show cause now only 53 vacancies are available in the general category and same number in the SC category. The stand of the State is that for many administrative reasons filling up of those vacancies is likely to take some time. However, it has been prayed that order of this Court to grant promotion to eligible persons has now been substantially complied with and hence, the contempt proceedings may be dropped. Learned counsel for the petitioners submits that authorities should take steps for de-reserving the SC vacancies and fill up them with qualified candidates of other categories. In our considered view, the authorities of education department should apply their mind so that vacancies may be filled up in due course in accordance with law. However, the opposite parties have shown substantial compliance with the order of this Court and, hence, all
Decision
the contempt petitions are finally disposed of. It will be open for the individuals, if left out of promotion, to seek redressal of their grievance through representation or appropriate proceeding in accordance with law.” Patna High Court CWJC No.15309 of 2013 (2) dt.12-08-2013 4 5. This writ application in fact seems to be fall out of the observations made out by the Division Bench in the aforementioned contempt application. 6. Learned counsel for the petitioners has highlighted that there would be in all 203 vacant post, 92 of general category, 53 of Scheduled Caste category and 54 which would become available if the persons holding Sahityalankar qualifications are removed from the S.E.S., inasmuch as they do not possess the requisite qualification as laid down in the judgment of this Court in the case of Ganesh Prasad Srivastav vs. Punjab National Bank through its Chairman & ors., reported in 2004(1) PLJR 387. 7. Though learned counsel for the State has prayed for adjournment of this case in order to enable him to obtain instructions in the matter but having regard to very limited scope of this writ application, this Court would deem it expedient in the ends of justice to dispose it of with a direction to the Director, Primary Education being the cadre controlling authority, to examine as to whether there are vacancies in the S.E.S. which has to be filled up from the L.S.S.. In fact whatever vacancies are available for promotion of the members of L.S.S. to S.E.S. must be filled up because the cadre Rule envisages promotion as per quota and therefore, if the quota is not filled up in the prescribed Patna High Court CWJC No.15309 of 2013 (2) dt.12-08-2013 5 time, the persons working in L.S.S. even after being promoted in S.E.S. would loose in the seniority. 8. It has to be kept in mind that posts of Bihar Education Service Class-II (B.E.S.) also is to be filled up by way of promotion from S.E.S. and therefore, the promotion of persons working in L.S.S. into S.E.S. in the ling course has its own spiral effect. 9. This Court would, accordingly, direct the Director, Primary Education, to examine the aforesaid grievance of the petitioners raised in this writ application and in order to shorten this process this Court would give liberty to the petitioners to file their self contained representation which would be disposed of on its own merit by a reasoned order by the Director Primary Education within a period of six months from the date of its receipt in the office of Director, Primary Education. 10. It is, however, made clear that nothing said in this order shall be presumed to be an authority for taking out the reserved post of Scheduled Caste category available for promotion in S.E.S. inasmuch as de-reservation of such post if any, has to be made strictly in accordance with law. 11. Similarly, even if the persons who have been given promotion on the post of Subordinate Education Service on the Patna High Court CWJC No.15309 of 2013 (2) dt.12-08-2013 6 basis of their qualification of Sahityalankar their such promotion cannot be straightway taken back unless they are given notice and/or opportunity of personal hearing. 12. The Director, Primary Education, therefore, while disposing of the representation of the petitioners should do nothing which would generate more litigation before this Court than is really required at the behest of authorities Education department who as on date are already largest contributors to the writ application relating to service matter filed before this Court. 13. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha, J) surendra/-