Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2721 of 2013 ====================================================== Mahendra Prasad S/O Late Gopaljee Sahai R/O Village + P.O.- Belaur, P.S.- Udwant Nagar, District- Bhojpur, At Present Lecturer, Mahila Primary Teachers Training College Tiet, Ram Bagh, Muzaffarpur Versus .... .... Petitioner 1. The State Of Bihar 2. The Principal Secretary Human Resource Development Department, Government Of Bihar, Patna 3. The Direcator, Primary Education Department Of Education, Vikash Bhawan, Patna .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 11-02-2013 Having heard counsel for the parties this Court would consider the grievance of the petitioner as raised in his representation dated 31.8.2012 to have three fold dimensions, namely, (i) his seniority above the person who had less marks than him in the competitive examination, (ii) pay protection and (iii) ACP. As with regard to issue of seniority the respondents have already conveyed by a decision, contained in Annexure 3, that the petitioner’s seniority shall be given due weightage and to that extent the order of the authority, as contained in Annexure 3, takes care of this aspect wherein it was held as follows: ^^ekuuh; mPp U;k;ky; }kjk lh0MCyw0ts0lh0 la[;k 2473@91 esa fnuakd 3-7-2000 dks ikfjr U;k;kns’k ds vuqikyu esa dk;kZy; Kkikad 93 fnukad 14-2-2004 }kjk Jh egsUnz izlkn dh fu;qfDr voj f’k{kk lsok …izk0’kk0‰ laoxZ esa osrueku 5500&6000@& esa dh x;h FkhA pwafd ;g fu;qfDr ekuuh; U;k;kns’k ds vkyksd esa dh x;h gS ftlesa
Legal Reasoning
Patna High Court CWJC No.2721 of 2013 (2) dt.11-02-2013 2 ekuuh; U;k;ky; dk ;g Hkh funs’k gS fd vkosnd dh ojh;rk dk fu/kkZj.k es?kk lwph esa buds izkIrkad ds vk/kkj ij ;Fkk LFkku fu/kkZfjr gksxk] vr% ;g ekuk x;k Fkk fd fu;qfDr i= esa ojh;rk laca/kh ’kRrZ lekfgr gS ,oa >kj[kaM jkT; ds foHkktu ds i’pkr fcgkj jkT; ds fy, fufeZr gksus okyh lacaf/kr ojh;rk lwph esa vkosnd dk uke ;Fkk LFkku izdkf’kr dj fn;k tk;sxkA mDr foUnq dks bl :i esa lqLi"V fd;k tkrk gS fd Jh izlkn dh ojh;rk muds izkIrkad 146 …fgUnh NksM+dj‰ ds vk/kkj ij rRle; tkjh es?kk lwph esa buls mij ds izkIrkad ds vH;fFkZ;ksa ds Bhd uhps budh ojh;rk xf.kr dh tk;sxh foHkkx }kjk o"kZ 1995 esa fuxZr ojh;rk lwph tks fd >kj[kaM jkT; ds foHkktu ds i’pkr vHkh rd iqujhf{kr ugha fd;k tk ldk gS] esa fcgkj jkT; ds laoxZ dh rS;kj dh tkus okyh ojh;rk lwph esa buds uke dk izdk’ku rnuqlkj gksxkA**
Legal Reasoning
The submission of Mr. Bishnu Kant Dubey, learned counsel for the petitioner, that this order of 2004 has not been given effect to till date will depend on the aspect as to whether after the year 2004 some gradation list has been finalized. There is nothing on record to show that the gradation list had been finalized and therefore, when the respondents have made their commitment to give due weightage of seniority in terms of the order dated 1.3.2004, this Court has no reason to disbelieve the intention of the Government to this effect. The issue of sonority of the petitioner, therefore, remains in tact and well protected by the order dated 1.3.2004. As with regard to pay protection as claimed by the petitioner in his representation, this Court must observe that the Patna High Court CWJC No.2721 of 2013 (2) dt.11-02-2013 3 petitioner is bound by an inter party order wherein this Court on 3.7.2000 in C.W.J.C.No. 2473/1991 had held as follows: “ In the facts and circumstances, the petitioner having discriminated, instead of interfering with the order of appointment of 4th respondent Rekha Bharati, I feel that the authorities should be directed to issue an order of appointment in favour of the petitioner. Accordingly, I direct the respondents including the Secretary, Primary Education and the Director, Primary Education to consider the case of the petitioner for his appointment against a post of Sub-ordinate Education Services (Primary Branch). An order of appointment be issued in favour of the petitioner against an existing vacancy, immediately, but not later than a period of two months from the date of receipt/ production of a copy of this order. On appointment, though, the petitioner will be entitled to salary from the prospective date of appointment, he will be entitled to count his seniority on the basis of his position as shown in the merit list.” As noted above, this Court did not say a word about giving the pay protection to the petitioner from an earlier date on which the 4th respondent Rekha Bharati has been appointed. In fact the petitioner had raised this issue by filing a contempt petition and in the contempt petition this Court having noted the delay in compliance of the order dated 3.7.2000 had compensated the Patna High Court CWJC No.2721 of 2013 (2) dt.11-02-2013 4 petitioner by awarding cost of Rs. 10,000/-, the relevant portion of the order in the contempt application dated 10.3.2004 in M.J.C.No. 920/2001 reads as follows: “On 24.2.2004 after going through the show cause I had already observed that the Director and the Secretary had committed contempt of the lawful authority of this Court and had violated the order willfully but taking into consideration the totality of the circumstances and the details of the events I am of the opinion that the apology tendered by them should be accepted. The proceedings are discharged, however, the respondent State shall pay cost in sum of Rs.10,000/- to the petitioner for the delay occasioned in the matter and because the petitioner now would be suffering loss of his salary for almost about a period of four years. The proceedings are closed. The cost shall be deposited by the respondents with the Accountant of this Court within six weeks from today. After deposit of the same the petitioner in person may withdraw it.” Admittedly the petitioner has been paid Rs. 10,000/- on the head of delay and nothing more would be admissible to him on this ground by way of pay protection and in fact the submission of Mr. Dubey cannot be accepted which would amount to retrospective appointment of the petitioner which was never envisaged under the earlier of this order which has become final and binding between the same parties. Patna High Court CWJC No.2721 of 2013 (2) dt.11-02-2013 5 That would bring the last issue of the grievance of ACP. It is well known that ACP can be given to a person only if he is confirmed in service and has passed the departmental examination. From the order of the authority dated 7.8.2008, as contained in Annexure 7, it would be apparent that the petitioner has ultimately passed both papers of his departmental examination and he has also cleared the Hindi Noting and Drafting Examination as notified by the concerned authority on 13.7.2012. Thus, if the petitioner has also been confirmed in service and has completed ten years of his service from the date of his appointment he would now qualify for his first ACP if he has not been, in the meantime given, any other promotion. The respondents, therefore, would be only now required to consider the grievance of the petitioner for grant of ACP strictly in accordance with ACP Rules 2003 and its modification from time to time. This must be done within a period of three months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this
Decision
application is disposed of. (Mihir Kumar Jha, J) surendra/-