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2003 DIGILAW 394 (PAT)

Ram Ayodhya Prasad v. State Of Bihar

2003-04-07

B.N.P.SINGH, S.N.JHA

body2003
Judgment S.N.Jha and B.N.P.Singh JJ. 1. The dispute in this case relates to promotion on the post of Headmaster of Middle School and grant of B.A. trained scale. The petitioner had approached this Court earlier in this regard in C.W.J.C. No. 4526 of 1981 and pursuant to the direction issued therein, filed a representation before the Director, Primary Education. The Director by order dated 23.7.1986 rejected the claim. The petitioner filed a review application which too was rejected on 1.10.1991. 2. The claim of the petitioner emanates from grant of B.A. trained scale and promotion as Headmaster to Mahatma Singh, Veena Devi, Shail Kumari, Ram Nath Singh and Kamaldeo Dubey. Except Shail Kumari, who is dead, others have been impleaded as respondent nos. 4 to 7. Respondent nos. 6 and 7 have appeared and filed counter affidavit. Respondent no. 3 District Superintendent of Education Saran, has also filed affidavit. 3. The case of the petitioner is that he is senior to the aforementioned five persons and, therefore, he should have been granted B.A. trained scale and promoted as Headmaster. It appears that the representation of the petitioner was considered in the context of Shail Kumari, Veena Devi and Mahatma Singh, perhaps because, as stated on behalf of respondent nos. 6 and 7, necessary facts constituting claim vis-a-vis others were not stated. Be that as it may, as stated above, they have been impleaded as respondents and two of them also filed counter affidavit. We, therefore, propose to consider the petitioners claim in the context of grant of B.A. trained scale and promotion as Headmaster to the said five persons. 4. As regards Mahatma Singh the claim of the petitioner rests on the premise that he should be treated as junior because he joined the post on 3.11.1968, a day later than the petitioner. The plea has to be summarily rejected. It transpired in course of hearing that both the petitioner and Mahatma Singh were appointed in the same transaction. Mahatma Singh was allocated to Siwan district upon bifurcation of the district of Saran. The bifurcation is said to have taken place in 1972. However, it is not clear as to when the cadre transfer was effected. As a matter of fact, it is also not clear as to whether Mahatma Singh was placed below or above the petitioner in the pane! of the merit list. The bifurcation is said to have taken place in 1972. However, it is not clear as to when the cadre transfer was effected. As a matter of fact, it is also not clear as to whether Mahatma Singh was placed below or above the petitioner in the pane! of the merit list. It is also not known whether promotion to B.A. trained scale of Mahatma Singh was allowed before or after his transfer to Siwan district. It is plain that if Mahatma Singh was placed above the petitioner in the panel, notwithstanding his joining later than the petitioner, he would be treated as senior to him. Similarly, it is beyond dispute that if he was allowed promotion and was granted B.A., trained scale after his transfer to Siwan district, the same cannot be questioned by the petitioner as assistant teachers constitute district level cadre. Pleadings on these points are conspicuously absent and, therefore, it is not possible to accept the claim of the petitioner merely on the ground that he joined the post on 2.11.1968 while Mahatma Singh joined on 3.11.1968. 5. The cases of Shail Kumari and Veena Devi stand in a narrow jacket. About them the Director has stated in the impugned order dated 23.7.1986 that in terms of Circular No. 3062 dated 10.12.1968, and 4369 dated 5.12.1970, separate gradation list was required to be maintained with respect to lady teachers. On behalf of the petitioner, it was submitted with reference to Circular No. 4557 dated 15.12.1976 that a combined gradation list with respect to lady teachers and male teachers was required to be prepared. Reference to said circular appears to be totally misconceived for the simple reason that Shail Kumari and Veena Devi were granted B.A. trained scale on 11.11.1972, that is, prior to the issuance of the circular and, therefore, they were governed by circulars dated 10.12.1968 and 5.12.1970, referred to above, and in view of categorical finding of the Director it cannot be doubted that as per the Government orders at the relevant time, the cases of female teachers were required to be considered separately. Therefore, grant of B.A. trained scale, etc. to these two also cannot be said to be erroneous. 6. Therefore, grant of B.A. trained scale, etc. to these two also cannot be said to be erroneous. 6. Coming to the cases of Ram Nath Singh and Kamaldeo Dubey, learned counsel for these respondents, submitted that they were appointed on 22.7.1969 in Municipal Schools managed by Chapra Municipality and not by the District Superintendent of Education, as averred by the petitioner. Their cases are, therefore, covered by sub-section (1) of Section 3 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, which provides that elementary schools managed by the District Board, Zila Parishad, Municipal Board and Patna Municipal Corporation, among others, "shall be deemed to have been taken over" by the State Government with effect from 1.1.1971. It appears that though these two persons were appointed as Assistant teachers later than the petitioner, they too form a different class. What is significant about them is that they were granted B.A. trained scale prior to the effective date of amalgamation of cadre which took place on 1.1.1979, the concerned respondents were granted B.A. trained scale with effect from 20.4.1977 itself. It is relevant to mention here that respondent nos. 6 and 7 were earlier allowed this scale with effect from 20.12.1982 and 11.1.1984, respectively, which they challenged before this Court in CWJC No. 1004 of 1993, and in the light of order of this Court, they were held entitled to the scale with effect from 20.4.1977. In these premises, we do not think that grant of B.A. trained scale to these respondents can be a ground to claim similar treatment by the petitioner. 7. However, we think that there is still some scope for the petitioner to have his case reconsidered. According to the respondents, the petitioner cannot be considered for grant of B.A. trained scale as in terms of the provisions of 1993 Rules, that is, Bihar Taken Over Elementary School Teachers Promotion Rules, 1993, a teacher, who has been allowed I.A. trained scale can alone be considered for B.A. trained scale. In fact, as per the counter affidavit, matriculate trained scale, I.A. trained scale and B.A. trained scale provide for Junior Selection Grade/Senior Selection Grade Scale apart from Basic Grade scale. In fact, as per the counter affidavit, matriculate trained scale, I.A. trained scale and B.A. trained scale provide for Junior Selection Grade/Senior Selection Grade Scale apart from Basic Grade scale. The petitioner being still in Basic Grade of matriculate trained scale, he has to be first promoted to junior/senior selection grades of that scale and, further promoted to the Basic and junior/senior selection grades of I.A. trained scale. Without this he cannot be promoted to B.A. trained scale. This stand of the respondents does not appear to be in accordance with the Bench decision of this Court reported in the case of Bali Ram Choudhary and others V/s. The State of Bihar and others 1994 (1) PLJR 588. In that case, the Court was considering the effect of circulars which held the field prior to coming into force of 1993 Rules. Holding that in the absence of statutory rules, it was permissible for the State to issue executive instructions laying down principles to be followed for promotion, the Court held that vacancies occurring in a particular period should be filled by promotion keeping in view the principles laid down in the particular Government order in vogue at the particular time. Thus, vacancies accruing between 1.12.1975 and 31.3.1981 were directed to be filled in accordance with the principles laid down in circular no. 4557 dated 15.12.1976, vacancies occurring between 1.4.1981 and 31.12.1985 were directed to be filled in accordance with circular no. 2440 dated 18.12.1984, and similarly, vacancies occurring on or after 1.1.1986 were directed to be filled up in accordance with the 1993 Rules. 8. The petitioner, who entered the service in 1968, has since retired in the Basic Grade of matric trained scale. While we have rejected his claim for grant of B.A. trained scale on the basis of grant of that scale to Mahatma Singh and others, we are not sure, as to whether petitioners claim for higher scale could be considered independently or not as per the provisions of the relevant circulars and government order issued from time to time in term of Section 8, which have been held to be equally binding in the case of Bali Ram Choudhary (supra). Though the petitioner has retired from service recently, his claim for promotion does not become inf ructuous. Though the petitioner has retired from service recently, his claim for promotion does not become inf ructuous. The petitioner may make a representation in view of observation of this Court before the Director, Primary Schools, within six weeks along with a copy of this order, and in that case, his case be considered in accordance with the rule. His retiral dues may be fixed provisionally in the meantime. 9. In the result, this writ petition is disposed of with observation/directions as stated above. There shall be no order as to costs.