The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1506 of 2018 Md. Ehsan ….. Versus ..… Petitioner 1.The State of Jharkhand through the Principal Secretary, School Education & Literacy Department, Govt. of Jharkhand, at Project Building, Dhurwa, P.O & P.S. Dhurwa, District-Ranchi. 2.The Director, Directorate of School Education & Literacy, Govt. of Jharkhand, Ranchi, at Project Building, Dhurwa, P.O & P.S. Dhurwa, District-Ranchi. 3. The Deputy Commissioner, Chatra, P.O & P.S. Chatra, District- Chatra. 4.The District Superintendent of Education, Chatra, P.O. & P.S. Chatra, District-Chatra. ..... Respondents --------- CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN --------- For the Petitioner For the Respondents
Legal Reasoning
: Mr. Amit Kr. Tiwari, Adv. : Mr. Anshuman Kumar, A.C.(L&C)II 06/Dated: 15th March, 2024 --------- Heard learned counsel for the parties. 2. The instant writ application has been preferred by the petitioner praying for a direction upon the respondent authorities to shift the date of promotion of Grade IV from 01.04.2015 to 01.04.2003 in the case of the petitioner upon completion of 8 years of service, as the vacancies existing in the said period of Arts Graduate Grade-IV is 03 to 06 which is available in Chatra District up to 2007. The petitioner has further prayed for a direction to grant promotion to the post of Headmaster in Grade-VII upon completion of 5 years’ service in Grade IV and after attaining eligibility for promotion on such post after shifting the Grade IV promotion. Further prayer has been made for a direction upon the respondent authorities to pay all consequential benefits after shifting of Grade-IV promotion and granting promotion in Grade-VII to the petitioner. 3. Learned counsel for the petitioner draws attention of this court towards Annexure-4 which is Bihar taken over Elementary School Teacher Promotion Rule 1993 and submits that Rule 5 (ii) clearly stipulates that the graduate trained teachers will be granted promotion directly from Grade-I to Grade-IV, if there is no teacher available in Grade-II and Grade-III and in this situation the minimum requirement is that the teacher must serve in Grade-I for 8 years. Further Rule-6 deals 2. with the availability of the vacancy. It has been further stipulated in the said Rule that every year on 1st of April, the vacancies will be calculated and promotion will be granted. Relying upon the aforesaid Rules learned counsel submits that the petitioners became eligible for promotion in Grade-IV w.e.f. 01.04.2003 and onward, since there was always vacancy during that period. In support of his second contention, he draws attention towards Annexure-6 which is a letter given by the respondents pursuant to information asked by the colleague of petitioner; wherein it is categorically mentioned about the vacancies in the respective years. 4. Learned counsel for the petitioner submits that the purpose of filing this writ application was that the petitioner has been granted promotion vide Annexure-3 vide Memo No. 1692 dated 28.12.2017 w.e.f. 01.04.2015. Learned counsel further submits that the grounds taken by the respondent is just to deny and defeat the justice to the petitioner. Learned counsel further refers to Annexure-2 series which is the order passed in the case of similarly situated persons and as such he prays that the instant application may be allowed and the respondent may be directed to reconsider the case of the petitioner by shifting the date of promotion from 2003 and onward upto 2007 i.e. the moment he became eligible after completion of 8 years of service as per 1993 Promotion Rule. 5. He lastly submits that after the order passed in LPA No. 211 of 2019 and also in SLP No. 10724 of 2021, the respondent department itself has issued office order through its Principal Secretary, School Education and Literacy Department as contained in Memo No. 619 dated 26.08.2021 whereby a direction has been issued to the District Authorities that promotion shall be given retrospectively from the date of vacancy after amending the gradation list and accordingly suitable direction has been issued to the District authorities to do the needful. Further, with respect to District of Ranchi, circular has been issued by the department vide Memo No. 624 dated 28.08.2021, whereby the date of promotion was rectified from the date of vacancies in case of other similarly situated person. 3. 6. Thus, if we go through the rules it stipulates two preconditions for promotion; (i) the eligible candidate having training must have completed 8 years’ service; (ii) there must be vacancy in the next higher posts. In the instant case, Annexure-6 has been enclosed which is a letter written pursuant to an RTI information which clearly gives the picture of vacancy available in the State, as such there cannot be any ground to consider the promotion of these petitioners from 2015 as he was eligible for Grade-IV promotion after 8 years of service. 7. It further transpires that the respondent-State has taken a ground that promotion cannot be given retrospectively. This argument of the State is not acceptable on the face of it, inasmuch as, the promotion order itself, which is of 2017, indicates that the promotion is with effect from 2015. Further, there is no reason, whatsoever, shown by the respondents, save and except, the circular of Finance Department which does not deal with the promotion rules and that what is the logic in giving promotion with effect from 2015 and not with effect from 2003 and later dates. 8. At this stage, it is also relevant to refer the decision of the Government which is Annexure-8 of the supplementary affidavit filed by the petitioner which is issued by Principal Secretary, School Education and Literacy Department under Memo No. 619 dated 26.08.2021; whereby a direction has been issued to the District Authorities that promotion shall be given retrospectively from the date of vacancy after amending the gradation list. It further transpires from the record that pursuant to the aforesaid office order of the Principal Secretary, a decision has been taken in the District of Ranchi and the promotion list has been rectified from the date of vacancy regarding other similarly situated person as the same transpires from Annexure 8/A of the supplementary affidavit. 9. Having regard to the aforesaid discussion, this court is of the considered view that the petitioner’s case should be considered for fixing his seniority from the date of his appointment and his promotion should be considered from the date when he becomes eligible after completion of 8 years of service as stipulated in the rules, as such the 4. respondent authorities are directed to reconsider the case of the petitioner and modify the date of promotion retrospectively from the date the petitioner was entitled as per the promotions rules. 10. Before parting, it is also necessary to indicate that the grievance of the petitioner is also for the post of headmaster; as such the respondent no.2 shall take that into consideration and pass a necessary order strictly in accordance with the rules. It goes without saying that the concerned respondent shall consider the case of the petitioner within a period of 12 weeks from the date of receipt / production of copy of this order. 11. With the aforesaid observation and the directions indicated herein above, the instant writ application stands allowed. jk/ (Deepak Roshan, J.)