1. Rajendra Kumar 2. Sunil Ram v. 1. The State of Jharkhand through the Principal Secretary, School Education & Literacy Department

Case Details

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1659 of 2018 --------- 1. Rajendra Kumar 2. Sunil Ram Versus 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. --------- ...…Petitioners ....Respondents CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioners For the Respondents 04/Dated: 9th May, 2024 --------- --------- : Mr. Amit Kr. Tiwari, Adv Ms. Deepmala, Adv. Ms. Nidhi Rani, Adv. : Mrs. Vandana Singh, Sr.S.C.-III Ms. Neha Pandey, A.C. to Sr.S.C.-III --------- 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 01.11.2007, respectively in the case of the petitioners upon completion of 8 years of service, as the vacancies existing in the said period for the Science Graduate Grade-IV is 23 to 30 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 the date of Grade-IV promotion and granting promotion in Grade-VII to the petitioner. 2. the Government Learned counsel for the petitioner submits that of Bihar, Human Resources Development came up with a resolution dated 05.03.1991, enunciating the policy to induct untrained teachers and to provide them in-service training. The policy to induct the untrained teacher was on account of the fact that there were two types of training colleges running in the State. The teachers were getting appointment as Assistant Teachers out of the panel prepared from the pass-out students of Government Training College. Further, a decision was also taken to induct untrained Graduates as Assistant Teachers and to impart training to them in the Government Training institutes and finally since the rules were not framed, Bihar Primary School Teachers’ Rule, 1991 was adopted wherein the mode of inducting the untrained teacher was also prescribed. The rules of appointment itself prescribes that the untrained teacher would be imparting training in the Government College. Based on the aforesaid policy decision, an advertisement was issued by Bihar Public Service Commission for appointment of teachers in the Government Primary Schools. The petitioners being untrained Science Graduates applied pursuant to the aforesaid advertisement and were made successful and a final merit list was prepared. Based upon the aforesaid merit list, the petitioners were given letter of appointment on 01.11.1999 and both the petitioners 2 gave their joining to the concerned place of posting. 3. Learned counsel further draws attention of this court towards Annexure-4 which is Bihar taken over Elementary School Teacher Promotion Rules, 1993 (hereinafter to be referred as the Promotion Rules) 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 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. 01.11.2007 since there was always vacancy during that period. In support of this contention, he draws attention towards Annexure-6 which is a letter given by the respondents pursuant to information asked by the petitioners; 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 petitioners have been granted promotion vide Annexure- 3 issued under Memo No. 1691 dated 28.12.2017 w.e.f. 01.04.2015. He further submits that the grounds taken by the respondent is just to deny and defeat the justice to these petitioners. Learned counsel further refers Annexure-2 series which is the order passed in the case of similarly situated persons and as such he prays that the instant 3 application may be allowed and the respondent may be directed to reconsider the case of the petitioners by shifting the date of promotion from 2004 i.e. the moment, they became eligible after getting training in 2000-01 and the result was published on 2004. 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 the District of Ranchi, circular has been issued by the department; whereby the date of promotion was rectified from the date of vacancies in case of other similarly situated person. 6. Per contra, learned counsel for the respondent- State opposed the prayer of the petitioner and submits that the petitioners are entitled for Grade-I scale from their joining date as per Memo No. 3027 dated 14.12.2015. He further submits that a direction has been issued by the Finance Department under Memo No. 2074 dated 04.04.1985 that the petitioners are not entitled for promotion with retrospective effect, as such their date of promotion cannot be shifted. 7. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits, it appears that both the petitioners have been appointed on 01.11.1999 and they gave their joining in the month of 4 November 1999 itself and subsequently they were given promotion from 01.04.2015. To decide the issue involved in this case, reference may be given to the “Promotion Rules” which clearly stipulates in Rule 5 that the graduate trained teacher 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 requirements is that the teacher must serve in Grade-I for 8 years. Annexure-1 is a tabular chart which is admitted by the respondents; indicates the date of appointment and date of joining of both the petitioners. Further, as per the Government policy, the petitioners were sent for training and they have successfully completed their training in the year 2000-01 and their results were published in the year 2004. At this stage, it is necessary to observe that the petitioners were though appointed in the year 1999, they were not provided training but it cannot be said that it was due to their fault and obviously sending them late for training is the fault of the State. However, ultimately the petitioners were sent for training in 2000-01 which they completed successfully and they were declared passed by the teachers’ training college. 8. Thus, if we go through the Rules, it stipulates two pre-conditions 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. It 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 they have completed their training in 2004 itself and were 5 having more than 8 years of service. 9. 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 itself does not deal with the promotion rules. 10. At this stage, it is also relevant to refer the decision of the Government (Annexure-8 to 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 already 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. 11. Having regard to the aforesaid discussions, this court is of the considered view that the petitioners’ case should be considered for fixing their seniority from the date of their appointment and their promotion should be considered from the date when they have successfully completed training and after completion of 8 years as stipulated in the Promotion Rules. Accordingly, the respondent authorities are directed to re-consider the case of the petitioners and 6 modify the date of promotion retrospectively from the date the petitioners were entitled as per the Promotions Rules. 12. Before parting, it is also necessary to indicate that the grievance of the petitioners is also for the post of headmaster; as such the respondent no.2 shall also take that into consideration and pass a necessary order strictly in accordance with the Promotion Rules. It goes without saying that the concerned respondent shall consider the case of the respective petitioners within a period of 12 weeks from the date of receipt/production of copy of this order. 13. With the aforesaid observation and the directions indicated hereinabove, the instant writ application stands allowed. vikas (Deepak Roshan, J.) 7