Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18105 of 2013 ====================================================== ANIL KUMAR SINGH, S/O SRI SAWALIA SINGH, R/O OF PRABHU NATH NAGAR, CHAPRA, P.O TARI, P.S MUFFASIL, CHAPRA, DISTRICT SARAN. VERSUS .... .... PETITIONER/S HUMAN COMMISSIONER-CUM-SECRETARY, 1.THE STATE OF BIHAR. RESOURCES 2.THE DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 3.THE DIRECTOR, PRIMARY EDUCATION, BIHAR, NEW SECRERARIAT BUILDING, PATNA. 4.THE DISTRICT MAGISTRATE, SARAN AT CHAPRA. 5.THE DEPUTY DEVELOPMENT COMMISSIONER, SARAN AT CHAPRA. 6.THE DISTRICT EDUCATION OFFICER, SARAN. 7.THE DISTRICT PROGRAMME OFFICER, ESTABLISHMENT SARAN AT CHAPRA. 8.THE DISTRICT SUPERINTENDENT OF EDUCATION, SARAN. .... .... RESPONDENT/S ====================================================== Appearance : For the Petitioner/s : Mr. Abhay Kumar Singh For the Respondent/s : Mr. S.S. Shabbar Hussain GP-4 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 25-09-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- for
Facts
"for setting aside the order contained in memo no. 1212 dated 16.08.2013(Annexure-7) passed by the Director, Primary Education issuing writ of respondent no. 3 and Mandamus directing the respondents for granting Graduate trained Grad-IV Scale according to the promotion Rule 1993 having completed qualifying period of eight years in Matric trained scale on 9.5.1996, being a Physical trained teacher was granted Matric trained scale w.e.f. the date of appointment i.e. 10.5.1988 by the order of this Hon'ble Court in C.W.J.C No. 8481/1990 dated 18.1.1995 and the order had become final, never challenged by the respondents at any stage as such the petitioner be granted promotion of the scale from due date with all consequential benefits." Patna High Court CWJC No.18105 of 2013 (2) dt.25-09-2013 2 Learned counsel for the petitioner in support of the aforementioned prayer has submitted that once the petitioner was given matric trained pay scale under the orders of this Court dated 18.01.1995 passed in C.W.J.C No. 8481 of 1990, he would be automatically entitled for grant of promotion in the B.Sc trained pay scale on the basis of the date of grant of matric trained pay scale. To that extent, he has also referred to the gradation list which was also prepared by the District Superintendent of Education, Saran pursuant to the judgment
Legal Reasoning
of Full Bench of this Court in the case of Ram Nath Singh & Ors vs The State of Bihar & Ors, 2009(3) PLJR 384. Mr. Abhay Kumar Singh, learned counsel appearing on behalf of the petitioner on the basis of the gradation list has also highlighted that as a matter of fact on the basis of the aforementioned gradation list the petitioner was already given promotion by order dated 16.04.2011 and therefore, it was only the place of posting which had to be given to the petitioner for availing the benefit of promotion in the B.Sc trained pay scale. According to Mr. Singh, when this was not done the petitioner had come to this Court in C.W.J.C No.
Decision
8304 of 2012 which was disposed of on 30.04.2012 directing the Director, Primary Education to take a decision as with Patna High Court CWJC No.18105 of 2013 (2) dt.25-09-2013 3 regard to grant of promotion in the B.Sc trained pay scale and his posting. Mr. Singh has submitted that the Director, Primary Education, however, by his final order dated 16.08.2013 has referred the claim of the petitioner on a wholly irrelevant fact and in fact by making the judgment of some other cases decided by this Court applicable which in fact were not referable to the facts of the case of the petitioner. Learned counsel for the State on the other hand has supported the impugned order passed by the Director, Primary Education and has also submitted that the petitioner in fact having not passed the teachers training course till 2005 was not entitled for being given promotion in the B.Sc trained pay scale on the basis of his earlier grant of matric trained pay scale. In the considered opinion of this Court, the issue relating to promotion of the petitioner in the B.Sc trained pay scale in the year prior to enforcement of Bihar Rajya Prarambhik Shikshak Niyamawali 2011 which came into force only w.e.f 01.09.2011 was governed by the provisions of Bihar Rajya Prarambhik Shikshak Niyamawali 1993. In such 1993 Rules there was specific provision as to who was eligible for promotion on the B.Sc trained pay scale and the simple requirement was that the person must have a degree of Patna High Court CWJC No.18105 of 2013 (2) dt.25-09-2013 4 graduation as also trained. The expression 'trained' was already clearly defined to mean 'teachers training course' and not a training certificate in Physical Education. The moment this Court would find that the petitioner did not possess the requisite qualification for being granted promotion in the B.Sc trained pay scale prior to 2005, his claim for promotion on the basis of earlier seniority of the year 1988 while he was only possessing the qualification of B.Sc with Physical teacher training could not have been taken into account for his determination of seniority. As a matter of fact in the seniority list of 94 persons, wherein, the name of the petitioner has been included at serial no. 38 no one having possessed the Teachers Training Examination in the year 2005 was included and therefore on the basis of such faulty/erroneous training contrary to the provisions of 1993 Rules, the petitioner's promotion notified on 16.04.2011 was itself incorrect and that is why the authorities namely, the Deputy Development Commissioner, Saran and District Superintendent of Education, Saran had clearly made an endorsement as with regard to petitioner and four others having qualification of Physical Teachers Training for their promotion being brought into effect only after the directions received by the Director, Patna High Court CWJC No.18105 of 2013 (2) dt.25-09-2013 5 Primary Education. Thus, it would be clear that neither the seniority list nor the promotion order has given any right to the petitioner specially when the same was purely conditional. In that view of the matter, this Court would find that now when the petitioner passed his Teachers Training Examination only on 20.06.2005, his seniority position will have to be re-determined and be placed at a position where the graduate trained teacher of 2005 will find their place. The petitioner in fact will not be in a position to claim his earlier seniority of the year 1988, inasmuch as, on that date he was not qualified for the post of B.Sc trained teacher in terms of 1993 Rules. The order dated 18.01.1995 passed in C.W.J.C No. 8481 of 1990 granting matric trained pay scale to the petitioner cannot bind the State as with regard to grant of further promotion. The petitioner at best became entitled to draw his salary in the matric trained pay scale but that will not mean that the petitioner also became qualified for promotion on the post of B.Sc trained. The issue that the Director, Primary Education had relied on an extraneous material in passing the impugned order including some of the orders passed by this Court is also wholly misconceived. The Director, Primary Education in fact Patna High Court CWJC No.18105 of 2013 (2) dt.25-09-2013 6 had gone into the aspect in a large number of cases that a teacher who has not passed regular teachers training course but has only completed training in Physical Education will not be entitled for being given either matric trained pay scale or promotion in graduate trained pay scale, therefore, if in earlier order of this Court passed by the learned Single Judge, it has been deprecated and in fact distinguished and also not followed by the Division Bench of this Court, reliance placed by the Director, Primary Education on such order is wholly unjustified in fact or in law. The issue would be one that it would be decided by the Division Bench and therefore, his reliance either on the judgment in the case of Bindeshwari Singh (CWJC NO. 6985 of 1997) disposed of on 26.09.2011 or the order dated 28.06.2013 passed in C.W.J.C NO. 15657 of 2012 does not suffer from any error. In fact the Division Bench had considered all the aspects as with regard to admissibility of Physical trained teachers to get matric trained pay scale or promotion in the B.Sc trained pay scale in the case of Shatrughan Prasad Singh, wherein, it had held as follows:- "It is apparent that in the guise of challenge to the Rules of 1993, what the writ petitioners seek is parity of pay with the matric trained elementary teachers. The issue has been agitated by the writ Patna High Court CWJC No.18105 of 2013 (2) dt.25-09-2013 7 petitioners and may others time and again before this Court and have lost. The latest in the matter of Bindeshwari Singh (CWJC No. 6985 of 1997) and cognate matters. By judgment and order date 26th September 2011, a Bench of this Court has rejected the contention. In our opinion, the repeated writ petitions in the same subject matter is a clear abuse of process of law. The petitioners having lost earlier have come again before this Court for the same relief under the guise of challenge to the statutory rules without challenging any particular rule on a particular ground. The present petition is barred by principle of res judicata. The petition is dismissed with cost. Cost is quantified at Rs. 5,000/-." Having thus held that the Director, Primary Education is absolutely correct, this Court must not shut the door of the petitioner for consideration of his promotion, inasmuch as, now it is said that the petitioner has passed his regular teacher training examination result whereof has been declared on 20.06.2005. In that view of the matter, this Court would direct the District Education officer, and the Chairman of the promotion Committee to consider the case of the petitioner on the basis of his acquiring qualification of B.Sc trained on 20.06.2005 and take a suitable decision as and when the turn of the petitioner would mature in terms of 2011 Promotion Rules which had already come into force w.e.f, 01.09.2011. Patna High Court CWJC No.18105 of 2013 (2) dt.25-09-2013 8 Subject to the aforementioned observation this application is dismissed. It goes without saying that the departmental promotion committee headed by the District Education Officer will have to examine the entire facts and records relating to the petitioner being eligible for promotion in B.Sc trained pay scale and a decision will be taken only after it is found that the petitioner is fully eligible for grant of B.Sc trained pay scale. Ranjan/- (Mihir Kumar Jha, J)