✦ High Court of India · 26 Jul 2023

Jharkhand Pragatishil Sikshak Sangh v. The State of Jharkhand

Case Details High Court of India · 26 Jul 2023

Court

High Court of India

Decided

26 Jul 2023

Bench

Not available

Length

6,893 words

Acts & Sections

Constitution of India Right of Children to Free and Compulsory Education Act 2009 This Rule was framed in view of the provisions of Right of Children to Free and Compulsory Education Act 2009

Cited in this judgment

Judgment

1. 2. Mahendra Ram 3. Shashi Shekhar 4. Dharmendra Kumar 5. Arjun Ram 6. Brajesh Kumar Pandey 7. Dharmendra Kumar Mehta 8. Vinay Kumar @ Binay Kumar 9. Santosh Kumar Gupta 10. Pranav Kumar 11. Vikash Kumar Pandey Versus …. Petitioners

1. The State of Jharkhand 2. Principal Secretary, School Education and Literacy Department, Govt. of Jharkhand, Ranchi. 2

3. Director, Primary Education, Govt. of Jharkhand, Ranchi. 4. Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Palamu Medninagar. …. Respondents

5. Deputy Development Commissioner, Palamu. 6. District Superintendent of Education, Palamu. 7. Regional Deputy Director of Education, Palamu Division, Palamu. 8. Abdul Rahim 9. Sushmit Kumar 10. Indu Bala 11. Bajrang Mahto 12. Leela Kumari 13. Taufiq Ahmed Ansari 14. Sunil Kumar 15. Amrendra Narayan 16. Mahesh Ram 17. Anil Kumar Singh 18. Shyam Deo Mahto 19. Nawneet Kumar Sundram 20. Mandwi Singh 21. Kamaeshwar Ram 22. Jagarnath Singh 23. Sudhir Kumar Dubey 24. Anand Mohan Singh 25. Amresh Kumar Singh 26. Arvind Prasad Gupta 27. Sumant Kumar Tiwari 28. Sunil Kumar Upadhyay 29. Anil Kumar Pandey 30. Kamal Nath Tiwary 31. Syed Naiyarul Islam 32. Kanhaiya Prasad 33. Binod Prasad 34. Krishna Ram 35. Shakil Ahmad 36. Vikash Prasad 37. Girwar Ram 38. Ranjit Kumar 39. Narendra Kumar Pandey 40. Bashishth Prasad 41. Ram Akhilesh Ram 42. Ramesh Mahto 43. Nand Kumar Pandey 44. Lalit Kumar Singh 45. Binod Prasad Singh 46. Vijay Ram 47. Nagendar Prasad 48. Ramesh Choubey 3

49. Nihal Chand Ram 50. Satish Kumar Sinha 51. Vinod Dixit

1. Sukh Jiwani Tuti 2. Achla Kujur 3. Shabana Parveen …..Interveners / Respondents With W.P. (S) No.2964 of 2015 ... Petitioners Versus

1. The State of Jharkhand, through the Secretary, Human Resources (Primary Education), Government of Development Jharkhand, Ranchi, HEC, Dhurwa, Ranchi Department

2. The Secretary, Human Resources Development Department (Primary Education), Government of Jharkhand, HEC, Dhurwa, Ranchi 3. Director, Human Resources Development Department Education), Government of Jharkhand, HEC, Dhurwa, Ranchi (Primary

4. Deputy Commissioner, Ranchi, Collectorate Building, Kutcheri Road, Ranchi

5. District Superintendent of Education, Ranchi, Collectorate, Building, Kutcheri Road, Ranchi ... Respondents With W.P.(S) No.4186 of 2022 Deo Hembrom .. Petitioner Versus

1. The State of Jharkhand, through the Director, Primary Education, Department of School Education, Department of School Education and Literacy, Government of Jharkhand, Project Building, Dhurwa, Ranchi

2. The Regional Deputy Director of Education, Dumka 3. The Deputy Commissioner, Dumka 4. The District Superintendent of Education, Dumka … Respondents With W.P.(S) No. 4182 of 2022 Joel Hansda … Petitioner Versus

1. The State of Jharkhand, through the Director, Primary Education, Department of School Education and Literacy, Government of Jharkhand, Project Building, Dhurwa, Ranchi

2. The Regional Deputy Director of Education, Dumka 3. The Deputy Commissioner, Dumka 4. The District Superintendent of Education, Dumka … Respondents With W.P.(S) No.1889 of 2022

1. Anand Kumar Lal 2. Prem Kumar 3. Anil Kumar Roy … Petitioners

1. The State of Jharkhand through the Director, Department of School Education and Literacy (Primary Education), Govt. of Jharkhand, Project Versus 4 Bhawan, HEC Township, Dhurwa, Ranchi

2. The Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Ranchi

3. The Regional Deputy Director of Education, Ranchi 4. The District Superintendent of Education, Ranchi … Respondents With W.P.(S) No.1892 of 2022 Arun Sinha … Petitioner Versus

1. The State of Jharkhand through the Director, Department of School Education and Literacy (Primary Education), Govt. of Jharkhand, Project Bhawan, HEC Township, Dhurwa, Ranchi

2. The Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Ranchi

3. The Regional Deputy Director of Education, Ranchi 4. The District Superintendent of Education, Ranchi … Respondents With W.P.(S) No.1338 of 2015

1. Pramod Kumar 2. Mithilesh Chandra Choudhary 3. Shiv Shankar Jha 4. Ashutosh Kumar Jha 5. Prem Shankar Jha 6. Kanhaiya Kumar Jha 7. Sanjeev Jha ‘Suman’ 8. Anjani Kumar Jha 9. Pramod Kumar Gupta 10. Anand Goutam 11. Dinesh Chandra Mandal 12. Raja Raman Jha … Petitioners Versus.

1. The State of Jharkhand, through the Secretary, Human Resources (Primary Education), Government of Development Jharkhand, Ranchi, HEC, Dhurwa, Ranchi Department

4. Commissioner, Santhal Pargana Division, Dumka 5. Deputy Commissioner, Godda 6. Deputy Development Commissioner, Godda 7. Regional Deputy Director of Education, Santhal Pargana Division, Dumka 8. District Superintendent of Education, Godda Respondents … With W.P.(S) No.4846 of 2015

1. Awadh Bihari Mishra 2. Ashok Kumar Dubey 3. Yogendra Nath Choubey 4. Umesh Kumar … Petitioners

1. The State of Jharkhand, through the Secretary, Human Resources Versus 5 Development Jharkhand, Ranchi, HEC, Dhurwa, Ranchi Department (Primary Education), Government of

4. Deputy Commissioner, Garhwa 5. Deputy Development Commissioner, Garhwa 6. District Superintendent of Education, Garhwa With W.P.(S) No.2355 of 2015

1. Sanjay Kumar Singh 2. Navin Chandra Mishra 3. Sanjeev Kumar Singh 4. Subodh Kumar Jaiswal … Respondents … Petitioners Versus

1. The State of Jharkhand, through the Secretary, Human Resources (Primary Education), Government of Development Jharkhand, Ranchi, HEC, Dhurwa, Ranchi Department

------ : Mr. Anil Kumar Sinha, Sr. Advocate Mr. Raunak Sahay, Advocate (in WPS-4115/2021) : Mr. Bhanu Kumar, Advocate (in WPS-3365/2020) : Mr. Pandey Neeraj Rai, Advocate Mr. Rohit Ranjan Sinha, Advocate (in WPS Nos. 1338, 2355, 2964 and 4846 of 2015) For the Petitioners : Mr. Rahul Kumar, Advocate Ms. Apoorva Singh, Advocate (in WPS-1889 & 1892 /2022) For the Petitioners : Mr. Pravin Kumar Pandey, Advocate (in WPS-4182 & 4186 / 2022) For the Respondent-State : Mr. Ashutosh Anand, AAG-III Mr. Praveen Akhouri, SC (Mines)-I Mr. Aishwarya Prakash, AC to SC(M)-I Mr. Jayant Franklin Topp, GA-V Mr. Amrit Raj Kisku, AC to GA-V Mr. Munna Lal Yadav, SC(L&C)-III Mr. Rahul Saboo, GP-II 6 Mr. Deepak Kumar, AC to SC(L&C) Mr. Ashok Kumar Singh, AC to SC(L&C)-III Mr. Rohit, AC to AAG-I Mr. Anil Kumar Singh, AC to GA-I Ms. Shrestha Mehta, AC to SC-II Mr. Pradeep Kumar, AC to AAG-IV For the Res./ Interveners : Mr. Ajit Kumar, Senior Advocate Mr. Manoj Tandon, Advocate Mr. Rahul Kumar, Advocate Mr. Shrestha Gautam, Advocate Mr. Sameer Sahay, Advocate Ms. Neha Bhardwaj, Advocate Mr. Adamya Kerketta, Advocate Ms. Apoorva Singh, Advocate Mr. Amit Kumar Tiwari, Advocate 9 / 26.07.2023 Heard the parties. -----

2. All these writ petitions raise common questions of law and hence, with the consent of parties, the same are being disposed of by this judgment. Prayers

3. In W.P.(S) No. 4115 of 2021, petitioner No.1 is an Association of Trained Graduate Teachers, who were appointed in the year 2015 onwards. Petitioner No.2 was appointed in the year 2016. They have thrown challenge to the decision contained in Memo No. 619 (Vidhi) dated 26.8.2021 issued by Joint Secretary to the Government, School Education and Literacy Department, Govt. of Jharkhand, in particular para 3(i) and (vi), whereby, a decision has been taken for giving promotion to the teachers who are working in Grade-3, 4 and 7 on notional basis. A further prayer has been made to direct the respondents to prepare the seniority list of Grade-IV teachers as per Bihar (now Jharkhand) Taken over Elementary School Teachers’ Promotion Rules, 1993.

4. In W.P.(S) No. 3365 of 2020, the petitioners have prayed for quashing of Memo No. 6255 dated 28.12.2016, whereby many teachers including private respondents were granted promotion to Grade-IV with retrospective effect from 1.4.2015. Further, prayer has been made to quash the decision contained in Memo No. 619 dated 26.8.2021, which is the main prayer of lead case in W.P.(S) No. 4115 of 2021.

5. In W.P.(S) Nos. 1338 of 2015, 2355 of 2015, 4846 of 2015 and 7 2964 of 2015, the petitioners have prayed for a direction upon the respondent-State to grant Grade-IV and / or Grade-VII to the petitioners with effect from the date of their entitlement or with effect from the date when their juniors were promoted to such Grades. In W.P.(S) No. 1338 of 2015, a further prayer has been made to quash the decision dated 24.9.2014, whereby the petitioners have been left out while promoting the juniors to the petitioners in Grade-VII.

6. In W.P.(S) Nos. 1889 of 2022 and 1892 of 2022, the petitioners are seeking direction upon the respondent-State to grant promotion to Grade- VII with effect from the date of their entitlement along with other consequential benefits.

7. In W.P.(S) Nos. 4182 of 2022 and 4186 of 2022, the petitioners have prayed for a direction upon the respondents to consider their cases for promotion to Grade-VII with effect from the date of their entitlement or when the juniors to them have been promoted to Grade-VII. Petitioners have further prayed for quashing of office order contained in memo no. 1671 dated

25.7.2017, whereby, petitioners were promoted to Grade-IV with effect from

1.4.2016, when the juniors to them have been granted promotion to Grade-IV with effect 1.4.2012. Factual Matrix of Petitioners of lead case, W.P.(S) No. 4115 of 2021

8. The petitioners have pleaded that the erstwhile State of Bihar had published Bihar Taken Over Elementary School Teachers’ Promotion Rules, 1993 (hereinafter referred to as “the Promotion Rules, 1993”) under the proviso to Article 309 of the Constitution of India, which has been adopted by the State of Jharkhand, after bifurcation. Rules 7 and 8 thereof stipulate the terms and conditions of promotion.

9. The State of Jharkhand issued Notification contained in Memo No. 1533 dated 31.7.2014, whereby a decision was taken to appoint the teachers to classes 6 to 8 in terms of Right of Children to Free and Compulsory Education Act, 2009. It was clarified that 50% of the said posts would be filled up by direct recruitment and rest by way of promotion from elementary school teachers. An advertisement was issued for appointment of such teachers and the members of petitioner no.1, and petitioner no.2, as also petitioners of W.P.(S) No.3365 of 2020 were appointed in different districts 8 in the year 2015 onwards in the quota fixed for direct recruitment.

10. It is the case of the petitioners that contrary to the Promotion Rules, 1993, the State of Jharkhand issued the impugned decision in the shape of order dated 26.8.2021 to grant notional promotion to the teachers, who were appointed in the year 1993 onwards to Grade-III, IV and VII in terms of Resolution No. 1145 dated 18.7.2019. The petitioners contended that the same is illegal, arbitrary and without application of mind. The contention raised is that, promotion takes effect only with effect from the date an employee joins on such post and not with retrospective effect. In this context, reference has been made to Resolution No. 2074 dated 4.4.1985 to fortify that promotion takes effect from the date of joining and no notional or retrospective promotion is permissible. Further, reference has been made to letter contained in Memo No. 1985 dated 20.11.2016, as also Circular No. 151 of the year 2006 issued by Finance Department. Letter dated 17.1.2019 issued by the School Education and Literacy Department, Govt. of Jharkhand has also been referred to in the writ petition to fortify the stand of the petitioners. Rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Finance Rules have also been referred to, which provide that promotion takes effect from the date on which the employee assumes the charge of higher regular post. In the light of the above, the petitioners have, therefore, prayed that the impugned decision dated 26.11.2016 of the Government deserves to be quashed and set aside. Factual Matrix / submissions of Petitioners of W.P.(S) Nos. 1338 of 2015, 2355 of 2015, 4846 of 2016 and 2064 of 2015.

11. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioners argues that though the petitioners are entitled for promotion with effect from the date of their entitlement in Grade-IV and Grade-VII, but the respondent-State had not considered the same and in fact, a decision was taken on 14.9.2014, whereby, the petitioners were left out and many juniors to them were granted to Grade-VII and as such, a direction may be issued upon the respondents to consider the case of the petitioners. Submissions in W.P.(S) Nos. 1889 of 2022 and 1892 of 2022

12. Mr. Rahul Kumar, learned counsel for the petitioners submits that petitioners are entitled for Grade-VII promotion from Grade-IV with 9 effect from the date of their entitlement along with other consequential benefits, but their cases have not been considered as yet and as such, a direction be given upon the respondents to consider the case of the petitioners for promotion to Grade-VII with all consequential benefits. Submissions in W.P.(S) Nos. 4182 of 2022 and 4186 of 2022

13. Mr. Praveen Kr. Pandey, learned counsel for the petitioners submits that though the petitioners were granted grade-IV promotion w.e.f.

01.04.2016, but the same ought to have been considered and granted w.e.f.

01.04.2012 when the juniors to them, have been granted promotion to Grade- IV and as such, impugned order dated 25.07.2017 is not tenable in the eyes of law and is liable to be quashed and set aside. He further submits that the petitioners are also entitled for Grade-VII promotion from Grade-IV with effect from the date of their entitlement or when the juniors to them have been promoted to Grade-VII and as such, a direction may be given upon the respondents to consider the case of the petitioners for promotion to Grade- VII from Grade-IV, w.e.f., the date of their entitlement. Case of Respondent-State in W.P.(S) No. 4115 of 2021

14. The State of Jharkhand has filed counter affidavit stating inter alia that erstwhile State of Bihar took a policy decision on 5.3.1991 to appoint untrained teachers and to impart training during the course of their services. The Bihar Primary School Teachers Rules 1991 was framed in exercise of powers under the proviso to Article 309 of the Constitution, which inter alia provides appointment to untrained teachers and to train them after their appointments. For this purpose, the then Bihar Public Service Commission issued advertisement. After a full-fledged selection process, teachers were appointed in elementary schools in the unified State of Bihar strictly in accordance with the merit position prepared by the Bihar Public Service Commission. A writ petition was preferred before the Patna High Court challenging such selection process, which was dismissed. Special Leave Petition preferred thereagainst, being S.L.P. (Civil) No. 23187 of 1996 was also dismissed by the Hon’ble Supreme Court of India. In compliance of the order, the then State of Bihar issued letter no. 02 dated 02.01.1999, whereby, the appointed teachers were sent for training. After the results of training were declared, the teachers made representation, as they remain 10 stagnant for many years only because of being untrained. The Government, however, rejected their claims on the ground that Grade-I is permissible only from the date of attaining training vide order dated 3.5.2003. Thereafter, a writ petition was preferred thereagainst, which was registered as W.P.(S) No. 5465 of 2007 (Awadh Bihari Mishra & Ors. Vs. The State of Jharkhand & Ors.), claiming Grade-I from the date of appointment and further promotion to one or other grades with effect from date of entitlement. The decision of the Government dated 3.5.2003 was quashed with a further direction to grant Grade-I from the date of joining and not from the date of completion of training, as is evident from the order dated 18.6.2008 passed in W.P.(S) No. 5465 of 2007. Similar writ petition, being W.P.(S) No. 638 of 2006 preferred by such teachers were decided by this Court vide order dated 4.4.2008. This Court held that case of petitioners be considered for fixing their seniority from the date of their appointment and they should also be considered for giving benefit of Grade-IV scales after completion of requisite period. The State preferred L.P.A. No. 214 of 2008, titled ‘State of Jharkhand & Ors. Vs. Arun Sinha & Ors.’ with analogous cases, which was decided on 06.11.2012. While dismissing the letters patent appeal of the State of Jharkhand, it was held by the Division Bench that though such teachers were appointed in the year 1993-94, but they were not provided training by the fault of the State only and even the training was provided only after passing of the order by the Hon’ble Supreme Court on 05.09.1997; and that the contention of State was not justified to grant such promotion / seniority. The special leave to appeal, being S.L.A. (Civil) No. 5520-5522 of 2013 was also dismissed by the Hon’ble Supreme Court. Similar issue fell for consideration before this Court in various writ petitions, which were disposed of in terms of the judgment delivered in the case of Arun Sinha & Ors. (supra) and the same have been brought on record as Annexure-E series to the counter affidavit and in compliance thereof, many teachers were promoted with retrospective effect to one or other grades treating them in Grade-I from the date of their appointments/joining. Almost sixteen writ petitions were disposed of on

17.12.2015, the lead case, being W.P.(S) No.2547 of 2014 (Sunil Kumar Bhagat & Ors. Vs. The State of Jharkhand & Ors.), which are at Annexure-F to the counter affidavit. 11

15. In compliance of the aforesaid judgments, the State of Jharkhand took a policy decision by Memo No. 3027 dated 14.12.2015 for grant of Grade-I from the date of joining of the respective teachers. The issue relating to grant of Grade-I from the date of joining/appointment, therefore, attained its finality. Once they were treated in Grade-I from the date of appointment / joining, their seniority has to be fixed accordingly with their entitlement for promotion to respective Grades.

16. In the meantime, Jharkhand Primary School Teacher Appointment Rules, 2012 was framed, wherein, a provision for appointment of teachers for Classes 1 to 5 (Intermediate Trained Teacher) and for classes 6 to 8 (Graduate Trained Teacher) was provided. As per the provisions under Rule 2012, 50% of posts are earmarked for direct recruitment and rest 50% from promotion to Grade-IV (Graduate Trained Teacher). This Rule was framed in view of the provisions of Right of Children to Free and Compulsory Education Act 2009. Thereafter, a Notification contained in Memo No. 1533 dated 31.7.2014 was issued by the State, whereby, a provision was made that 50% posts of Trained Graduate Teachers for classes 6 to 8 shall be filled from the old teachers having requisite qualification. The rest posts were filled up by direct recruitment. Accordingly, advertisements were issued and the members of petitioner no.1 and petitioner no.2 personally, including the petitioners of W.P.(S) No. 3365 of 2020, were appointed in the quota of 50% earmarked for direct recruitment. The rest 50% posts remained unfilled, as delay was caused in preparing the seniority list. Therefore, the eligible teachers were promoted to various Grades on promotional posts. Such teachers were given benefits in the light of various judgment passed by this Hon’le Court. Once the teachers attained the eligibility, they are entitled for promotion with effect from the date they were eligible in the light of the various judgments, cited above. They have been granted notional promotion with retrospective effect. They were, therefore, entitled for further promotion to Grade-VII in terms with the Rules and various judgments, but of course, financial benefits were to be paid in terms of Rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Finance Rules with effect from the date of their joining. The writ petitions, therefore, lack merit and hence, the same deserve to be dismissed. 12 Case of Interveners-Private Respondents in W.P.(S) No. 4115 of 2021

17. I.A. No. 5367 of 2022 was filed in W.P.(S) No. 4115 of 2021 by two teachers, namely, Nand Kishore Singh and Naveen Kumar. This I.A. was taken up and allowed by this Court on 04.07.2022. The interveners were ordered to be impleaded as respondent nos. 3 and 4.

18. The interveners-respondent nos. 3 and 4 pleaded that the writ petition was neither maintainable in law nor on facts. The impugned decision dated 26.8.2021 was issued strictly in compliance of the order passed by this Court in W.P.(S) No. 7392 of 2017 dated 26.9.2018. There is no straight jacket formula to contend that retrospective promotion is not permissible. In a given case, the retrospective / notional promotion is always permissible in the eyes of law, which is by now well settled by various judicial pronouncements. Rule 74 of Jharkhand Finance Rules and Rule 58 of Jharkhand Service Code are totally misplaced in the present case. When there is no fault on the part of the employee / teacher and the promotion was delayed on the part of the official respondents, the retrospective / notional promotion cannot be denied to such teachers.

19. Other interlocutory applications for intervention, being I.A. No. 5858 of 2022 & I.A. No. 6225 of 2022 were also allowed by order dated

28.07.2022. On that very date, the writ petition was admitted and the rule was made returnable after three months. Arguments Advanced by Petitioners in W.P.(S) No. 4115 of 2021.

20. Mr. Anil Kumar Sinha, learned senior counsel, assisted by Mr. Raunak Sahay, learned counsel for the petitioners, submits that the impugned decision dated 26.8.2021 is contrary to law. He submits that retrospective / notional promotion is not permissible. The impugned decision is contrary to the provisions enshrined in the said Promotion Rules, 1993. The promotion has to be granted in terms of Rule 7 and 8 of the said Promotion Rules, 1993. He refers various Rules of the said Promotion Rules, 1993 and argues that Rule 2 provides that there are eight Grades for promotion of teachers in a particular pay scale. He contends that Grade-I means Matric Trained basic scale and Grade-II and III are senior scale and selection grade scale of Matric trained pay scale. Grade-IV means Graduate Trained Pay scale and Grade-V and VI are senior scale and selection grade scale of Graduate Trained pay 13 scale. He further contends that Grade-VII means Headmaster basic pay scale and Grade-VIII is senior scale of Headmaster’s pay scale. Learned senior counsel further submits that it is settled principle of law that whenever regular promotion is granted to any employee, the higher pay scale will be granted only from the date of his/her joining. He further submits that financial benefits have to be granted only when the employee joins / assumes charge of the said post. Learned senior counsel refers various Rules / Regulations / Guidelines of the Government, including the Resolution No. 2074 dated 4.4.1985; letter contained in Memo No. 1985 dated 20.11.2016, as also Circular No. 151 of the year 2006; letter dated 17.1.2019 issued by the School Education and Literacy Department, Govt. of Jharkhand; Rule 58 of Jharkhand Service Code and Rule 74 of the Finance Rules, which specifically provides that promotion only takes effect from the date of joining / assuming of charge and no notional or retrospective promotion is permissible in the eyes of law. Further to fortify his arguments, learned senior counsel places reliance upon the judgment in the case of Ganga Vishan Gujrati & Ors Vs. State of Rajasthan & Ors., reported in (2019) 16 SCC 28, wherein, the Hon’ble Supreme Court considering the law down in the earlier decisions in the case of Direct Recruit Class II Engs. Officers’ Assn. Vs. State of Maharasthra, held that seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so, it may adversely affect the employees who have been appointed validly in the meantime.

21. Relying upon the various Rules and the judgments, the learned senior counsel further submits that if retrospective promotion is granted to the teachers / interveners, the case of petitioners would be affected for grant of further promotion and therefore, the impugned order needs to be interfered with by quashing the impugned clauses. Arguments Advanced by Petitioners in W.P.(S) No. 3365 of 2020.

22. Mr. Bhanu Kumar, learned counsel appearing for the petitioners adopts the same argument, as has been argued by Mr. Anil Kumar Sinha, learned senior counsel appearing in lead case, being W.P.(S) No. 4115 of

2021. However, he further adds that retrospective promotion is not permissible, in view of the said Promotion Rules, 1993, as also Rule 74 of 14 the Finance Rules and Rule 58 of Service Code and as such, the impugned decision of Government dated 26.8.2021 is fit to be quashed and set aside. To strengthen his arguments, learned counsel also relies upon various judgments, including in the case of Susaina Sharma & ors. Vs. State of Jammu & Kashmir (2008) 11 SCC 413; Nani Sha & Ors. Vs. State of Arunachal Pradesh (2007) 15 SCC 406; and S.K. Abdul Rashid & Ors. Vs. State of Jammu & Kashmir (2008) 1 SCC 722. Arguments advanced by State of Jharkhand in W.P.(S) No. 4115 of 2021.

23. Learned counsel appearing for the respondents-State submits that the issue relating to grant of promotion with respect to teachers in the factual matrix of the present case is well-nigh settled by this Court, affirmed by the Hon’ble Supreme Court of India in various judgments, which are enclosed with the counter affidavit. Therefore, such issue has attained its finality. Admittedly, the delay in imparting training was caused at the instance of the State and hence, the affected teachers cannot be allowed to suffer, as they faced the examination conducted by Bihar Public Service Commission and after the merit list was prepared, they had been appointed in accordance with law in order to their merit position. Learned counsel further submits that in fact, the State initially had rejected the claim of such teachers for grant of Grade-I, but the same was not approved by this Court and hence, the State is bound to obey such orders/ judgments which were ultimately affirmed by the Hon’ble Supreme Court of India. The reference of these judgments have already been made herein above in the factual matrix of the State of Jharkhand. In compliance of the orders passed by this Hon’ble Court, the impugned decision was taken, so as to apply its uniformly pay in all the districts of the State of Jharkhand. Nothing wrong has been committed by the State. It is only in consonance with the various judgments by this Court referred to herein above, the uniformly decision was taken. Arguments Advanced by Interveners in W.P.(S) No. 4115 of 2021.

24. Mr. Manoj Tandon, learned counsel, assisted by Ms. Neha Bhardwaj, learned counsel appearing for the interveners contends that Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Finance Rules are not at all attracted in the facts and situation of the present case. There are various instances where retrospective promotions / notional 15 promotions were permitted. Admittedly, there is no fault on the part of the interveners or similarly situated teachers, as they were appointed as untrained in terms of the appointment rules applicable at the relevant point of time, which was framed under the proviso to Article 309 of the Constitution of India. He further submits that promotions of teachers are permissible in terms of the said Promotion Rules, 1993. There is no bar to grant retrospective promotion / notional promotion, when delay is caused at the instance of the State. Learned counsel further submits that there is nothing wrong in granting retrospective promotion with effect from the date of his / her entitlement and the vacancy being available. The State of Jharkhand, therefore, has taken a uniform decision to grant retrospective / notional promotion with effect from the date of entitlement of one or the other teachers. He further submits that such decision was taken in compliance of the various judgments including the judgment in the case of State of Jharkhand & Ors. Vs. Arun Sinha, being L.P.A. No. 214 of 2008 with other analogues cases, which was affirmed by the Hon’ble Supreme Court of India in S.L.A.(Civil) no. 5520-5522 of 2013. In furtherance to his arguments, Mr. Tandon further refers to the judgment in the cases of Awadh Bihari Mishra & Ors. Vs. The State of Jharkhand & Others decided on 18.6.2008 in W.P.(S) No. 5465 of 2007 and the various judgments, which have been brought on record as Annexure-E series and Annexure-F to the counter affidavit. He further refers the resolution no. 3027 dated 14.12.2015 which was issued by the State of Jharkhand in compliance of the various judgments passed by this Court and the same has attained its finality. It is submitted that the members of petitioner no.1 and petitioner no.2 personally were appointed much after the appointment of the interveners and their seniority has to be counted from the date of their initial appointments, as is well-nigh settled. He further argues that the members of petitioner no.1 and petitioner no.2 personally were not even born in the service, when the interveners were appointed. So there is no comparison in between the petitioners and the interveners. Learned counsel also points out that nothing has been brought on record as to how the impugned decision of the State is contrary to law. Once a person became eligible and there is vacancy available, he/she has a right to get promotion with all consequential benefits. Merely for the fault on the part of the State, no one can be denied 16 promotion from retrospective date. The issue relating to grant of retrospective promotion vis-à-vis Rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Finance Rules are no more res integra. It is well settled by judicial pronouncements that these Rules are not applicable where the delay in granting of promotion had occurred by the State and no fault on the part of the employee concerned. Therefore, he submits that the writ petition deserves to be dismissed.

25. Mr. Ajit Kumar, learned senior counsel, assisted by Mr. Samir Sahay, learned counsel for the interveners in I.A. No. 3037 of 2023 submits that the petitioners have not been able to make out a case for interference by this Court. He further submits that because of the interim order of status quo granted by this Court on 12.5.2022, a letters patent appeal, being L.P.A. No. 353 of 2022 was preferred. This appeal was decided on 13.3.2023 with a request to the Writ Court to decide the writ petition as expeditiously as possible. While referring various provisions of the said Promotion Rules, 1993, Mr. Ajit Kumar, learned senior counsel submits that there is nothing wrong in granting retrospective promotion in terms of the Rules from the date of entitlement and the vacancy. The petitioners came in service much after the interveners and intentionally, the petitioners are trying to delay the promotion to one or other grades. Learned senior counsel further points out that the State of Jharkhand has initially imposed a complete ban on grant of promotion, which was ultimately set aside by this Court and thereafter when the State of Jharkhand has decided to grant the promotion to the eligible teachers in various Grades, the petitioners are trying to delay such promotion by filing these writ petitions. Accordingly, he has also prayed for dismissal of the writ petitions.

26. Mr. Rahul Kumar and Mr. Shrestha Gautam, learned counsels appearing for the other interveners while adopting the arguments advanced by learned senior counsel appearing for other interveners / respondents submit that the writ petitions lack merit. They also argue that there was no fault on the part of the interveners to get them promoted on time. The delay was caused at the instance of official respondents. The interveners are, therefore, entitled for promotion with retrospective effect, strictly in compliance of the several judgments passed by this Court and the same was 17 affirmed by the Hon’ble Supreme Court of India. Findings of the Court

27. Having heard the learned counsel for the parties across the Bar and after perusal of the entire records, it is an admitted case of the parties that the members of writ petitioner no. 1 and petitioner no. 2 personally were appointed in the year 2015 onwards and the interveners were appointed in service much earlier i.e. 1993-1994 onwards. The case of interveners- respondents are fully governed by the Rules, known as Bihar Taken Over Elementary School Teachers’ Promotion Rules, 1993. Though this Rule was framed in the year 1993, but the same is effective retrospectively from

1.1.1986, which is evident from the Rules itself. Rule 4 thereof provides that teachers can be promoted only when he / she fulfills Kalawadhi (qualifying period) and the minimum educational qualifications including the teachers training for the available vacancy. Rule 5 provides the qualification, period for promotion to Grade-III and Grade-IV. Rule 5(2) is relevant for the controversy of the present lis. This Rule prescribes that minimum eight years of service in Grade-I is compulsory for promotion to Grade-4, in case the teachers are not available in Grade-2 and Grade-3. For promotion to Grade-6, minimum 12 years of service is required, or if he/she is Trained Graduate or 18 years of service in Grade-5. For promotion to Grade-VII, a candidate must be Post Graduate Trained. Grade-IV teacher is also entitled for promotion directly in Grade-VII, if the teachers in Grade-6 and Grade-5 are not available, provided he/she has the qualifying period (Kalawadhi). Admittedly, a number of teachers were appointed untrained in view of the provisions enshrined in the Rule framed by the then State of Bihar under the proviso to Article 309 of the Constitution of India, known as Bihar Primary School Teachers’ Appointment Rules, 1991. It was the policy decision of the State to train such teachers after their appointment. Therefore, it was the duty of the State to train such teachers at the earliest. The delay was caused at the hands of the State. When such teachers were imparted training by the State, they claimed their promotion from the retrospective date, when they became eligible. The State denied such promotion. The matter ultimately fell for consideration before this Court in various judgments, which have been placed by the State of Jharkhand itself with their counter affidavit at 18 Annexure-E series and Annexure-F. The issue has attained finality up to the Hon’ble Apex Court. It was only in compliance of various judgments delivered by this Court, affirmed up to the Hon’ble Apex Court, the State issued Resolution No. 3027 dated 14.12.2015, whereby, policy decision was taken to extend the benefit of Grade-I from the date of appointment / joining of the teachers. The judgment in the case of Sunil Kumar Bhagat & Ors. Vs. State of Jharkhand & Ors. (supra) and Arun Sinha (supra) are binding on the State. Therefore, the State has issued the impugned decision dated 26.8.2021 strictly in terms of the judgments.

28. The contention of learned senior counsel appearing for the petitioners that no retrospective promotion is permissible has no legs to stand, in view of the facts and situation of the present case. In a case where the vacancy is available and the employee / teachers are having the requisite qualification and Kalawadi / qualifying period of service, they are entitled for promotion from the date of such entitlement. In the present case, the delay was caused at the instance of the State. The teachers, therefore, who were entitled for such promotion cannot be allowed to suffer. Therefore, the State of Jharkhand has taken a conscious policy decision to grant such promotion in compliance of the various judgments of this Court.

29. This Court is of the view that the impugned decision has been taken in accordance with the rules, referred to herein above, as also in view of various judgments of this Court, as affirmed by the Hon’ble Supreme Court of India. Admittedly, the members of petitioner no.1 and petitioner no.2 personally were appointed much after the interveners and similarly situated teachers. Earlier there was no concept of direct appointment of teachers in Grade-IV when the interveners were appointed. The concept of appointment of teachers for classes 6 to 8 (i.e. Grade-IV) came only after enactment of Right of Children to Free and Compulsory Education Act,

2009. Merely because the appointment of teachers in the year 2015 onwards, the case of those who were already in service right from 1994 onwards cannot be allowed to suffer. Their services are governed strictly in terms of the aforesaid Promotion Rules, 1993, which is effective from 1.1.1986 itself. Therefore, when the decision has been taken by the State of Jharkhand to promote such teachers with effect from the date of their entitlements, there is 19 nothing wrong on the part of the State. Even otherwise, much delay was caused in the matter of grant of promotion to one or other employees in the State of Jharkhand because of complete ban vide order dated 24.12.2020. Ultimately, the matter came before this Court and such decision of the State of Jharkhand was quashed. The judgment is reported in the case of Ashok Kumar Singh Vs. State of Jharkhand & Ors., (2022) 1 JBCJ 662 (HC) : (2022) 1 JLJR 641 (HC). The State, therefore, has decided to grant promotion in accordance with the Rules and such decision is perfectly in accordance with law.

30. As has been rightly argued by learned counsel for the State and the interveners that members of petitioner no.1 and petitioner no.2 personally were appointed in the quota of 50% of direct recruitment. The interveners and similarly situated teachers, who were in a different channel of promotion, were promoted in terms of the said Promotion Rules, 1993. The petitioners have not been able to make out a case for interference by this Court. In fact, when the writ petition was preferred, the petitioners should have impleaded the persons / teachers going to be affected by any order to be passed by this Court. However, the writ petition was preferred without impleading such persons going to be affected as party respondents. After an exhaustive counter affidavit is filed by the State of Jharkhand and the interveners have intervened in the matter, the full facts came to the notice of this Court.

31. The argument, as has been advanced by learned senior counsel for the petitioners that the impugned decision is contrary to the said Promotion Rules, 1993, but nothing has been pointed out as to how the impugned decision is contrary and as to which particular Rule of the said Promotion Rules, 1993, has been violated. Therefore, the Court holds that the argument advanced by the learned senior counsel for the petitioners has no legs to stand in the present case. Conclusion W.P.(S) Nos. 4115 of 2021 & 3365 of 2020

32. As a squitter to the aforesaid rules, regulations, guidelines and judicial pronouncements, the writ petitions are devoid of any merit and hence, the same are hereby dismissed.

33. The interim order dated 12.05.2022 passed in W.P.(S) No. 4115 20 of 2021 and interim order dated 1.12.2020 passed in W.P.(S) No. 3365 of 2022 stand vacated. The State is free to abide by the impugned decision and grant promotion to the teachers entitled under the law. W.P.(S) Nos. 1338, 2355, 4846, 2964 of 2015, and 1889, 1892, 4182 and 4186 of 2022.

34. In view of the fact that lead case, being W.P.(S) No. 4115 of 2021 along with W.P.(S) No. 3365 of 2020 has been dismissed and it has been held that decision of the State dated 26.8.2021 needs no interference, these writ petitions are allowed with a direction to the respondent-State to consider the cases of one or other teachers including the writ petitioners for grant of promotion in Grade-IV / Grade-VII and further promotion in accordance with law and the law laid down by this Court, as above.

35. Pending interlocutory applications, if any, stand disposed of. R.Kr. (Dr. S.N. Pathak, J.)

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