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2003 DIGILAW 795 (JHR)

Muneshwar Prasad Vishwakarma v. State of Bihar

2003-07-10

TAPEN SEN

body2003
Judgment Per Tapen Sen, J.-Heard Mr. N. N. Tiwari, learned counsel for the Petitioner. Nobody appears for the Respondents. 2. In this Writ Application the Petitioner prays for quashing the order issued by the Respondent No.2 (Director, Primary Education-cum-Special Secretary, Bihar, patna) being Memo No. 127, dated 22.01.1997 (Annexure-11) whereby and whereunder the representation of the Petitioner for his promotion was rejected. The Petitioner alleges that this rejection was contrary to the earlier order of promotion and also contrary to the directions passed earlier on 02.08.1995 and 14.08.1995 in C.W.J.C. No. 630 of 1995 (Annexure-9 Series). The Petitioner also prays for writ of mandamus commanding upon the Respondents to promote the Petitioner to the Graduate Trained Scale with effect from 01.04.1974. The Petitioner further prays for payment of difference of pay together with current arrears which are admissible to the scale of Trained Graduate and the Headmaster of the Middle School. 3. The facts as pleaded are that on 10.09.1964, the Petitioner was appointed as an Assistant Teacher in the proposed Upper Primary School, Kanta Toli, Ranchi whereafter he was transferred to different Primary and Middle School. While he was functioning as Assistant Teacher in the Pahari Tola Middle School in the year 1968, he passed the Intermediate Examinations and thereafter, in the year 1971 he passed the B.A. Examinations. In support of the aforesaid contentions, the Petitioner relies upon Annexure-1 which is a photocopy of the Degree confirmed upon the Petitioner by the Ranchi University. 4. In the year 1973, the Petitioner passed the 8.Ed. Examinations from the Ranchi University and in support of the said statement, the Petitioner relies upon Annexure-2. 5. After passing the 8.Ed. Examination, the Petitioner filed a representation wherein he requested that he be promoted and given the B.A. Trained Scale with effect from 01.04.1974. This representation was followed by other similar representation/ reminders but they were not attended to as a result whereof in the year 1985, the Petitioner filed C.W.J.C. No. 1672 of 1985 (R) wherein he prayed that the Respondents be directed to grant promotion to the Petitioner in the BA Trained Scale with effect from 01.04.1974. 6. On 20.03.1986, the said Writ Application was disposed off at the admission stage vide Annexure-3 directing the concerned authorities to dispose off the Petitioner's representation within three months from the date of filing. 7. 6. On 20.03.1986, the said Writ Application was disposed off at the admission stage vide Annexure-3 directing the concerned authorities to dispose off the Petitioner's representation within three months from the date of filing. 7. In compliance of the said order, the Director, Elementary Education, Government of Bihar, Patna vide his order dated 07.03.1988 passed an order holding, inter alia, that the Petitioner was entitled to be promoted to the Graduate Trained Scale with effect from 01.04.1974 and was also entitled to seniority and appropriate placement in the seniority list. In support of the aforementioned contention, the Petitioner relies upon Annexure-4. In spite of the aforementioned order of the Director, Elementary Education the District Superintendent of Education (Respondent No.5) initiated a departmental proceeding against the Petitioner and put him under suspension. The Petitioner has stated that this was done to frustrate the Order of promotion and it was passed with a malafide intention. Subsequently, on 05.12.1988, the District Superintendent of Education passed an Order vide Annexure-5 wherein while referring to the recommendation made on 07.03.1998 by the Director, Elementary Education'-cum-Joint Secretary whereby the Petitioner was recommended for being given the Graduate Trained Scale with effect from 01.04.1974, he however stated that since he had been suspended, therefore, he would not be entitled to any financial benefits and that such entitlement would arise only after the Order of suspension was revoked. 8. Thereafter, by Order dated 08.01.1990, the District Superintendent of Education awarded the punishment of withholding of increments and depriving the Petitioner of promotion for three years. This Order is Annexure-6 to the Writ Application. 9. Being aggrieved, the Petitioner filed an appeal and after considering all materials on record, the Regional Deputy Director, by Order dated 30.12.1992, as contained in Annexure-7, directed the District Superintendent of Education, Ranchi to promote the Petitioner and to revoke/set aside the orders of punishment and also to maintain his seniority. 10. Notwithstanding the aforementioned order of his senior officer passed on 30.12.1992, the District Superintendent of Education did nothing in the matter whereafter the Regional Deputy Director again passed on Order on 04.12.1993 (Annexure8) directing the District Superintendent of Education to issue necessary Order of promotion according to seniority. 11. 10. Notwithstanding the aforementioned order of his senior officer passed on 30.12.1992, the District Superintendent of Education did nothing in the matter whereafter the Regional Deputy Director again passed on Order on 04.12.1993 (Annexure8) directing the District Superintendent of Education to issue necessary Order of promotion according to seniority. 11. Even thereafter, the District Superintendent of Education did nothing in the matter whereafter the Petitioner went on filing representations after representations but the said District Superintendent of Education went on sitting tight over the matter in spite of Annexures-4, 7 and 9. The Petitioner has stated that in the mean time, other similarly situated persons who were even junior to him, were all given promotion but the Petitioner was subjected to hostile discrimination. 12. Seeing no alternative, the Petitioner again filed C.W.J.C. No. 630 of 1995 (R) which was disposed off by Order dated 02.08.1995 (Annexure-9 at Page-44) wherein on the basis of the statements made in the Counter Affidavit the High Court came to the conclusion that no relief could be granted by the Court but however, gave liberty to the Petitioner to file representation before the appropriate authority. 13. The aforementioned Order was however rectified on 14.08.1995 and "1993" was ordered to be read as "1973". Accordingly, the impact of the order dated 02.08.1995 was that the Petitioner having been granted Matric Trained Scale in 1973, the question of granting SA Trained Scale did not arise. This order of rectification is at Page-46 of the Writ Application. 14. Pursuant to the direction made by the High Court, the Petitioner again filed a fresh representation on 25.08.1995 before the Director vide Annexure-10 and since it was not being disposed off, the Petitioner filed a Contempt Application which was registered as M.J.C. No. 641 of 1996 (R). Upon getting notice in the contempt matter, the Director, Primary Education (Respondent No.2) disposed off the representation of the Petitioner by order under Memo No. 127, dated 22.01.1997 which is impugned in this Writ Application and which is contained in Annexure-11 whereby he rejected the claims of the Petitioner. Upon getting notice in the contempt matter, the Director, Primary Education (Respondent No.2) disposed off the representation of the Petitioner by order under Memo No. 127, dated 22.01.1997 which is impugned in this Writ Application and which is contained in Annexure-11 whereby he rejected the claims of the Petitioner. Upon perusal of the aforementioned order dated 22.01.1997, it appears that the Director, Primary Education-cum-Special Secretary stated that as per Promotion Rule-1993, the Petitioner's promotion to the SA Trained Scale was considered taking into account the Petitioner's placement in the seniority list at S.No. 124: According to him, promotions had been given only up to S.No.7 and since the Petitioner's name was quite below, the seniority list, the claim for promotion therefore was not maintainable at the moment and therefore, there was no reason to comply with the earlier order of Director, Primary Education given on 07.03.1988 i.e. Annexure-4 appended to the Writ Application. 15. The Petitioner has stated that from a perusal of the impugned order, it would be evident that the Respondent No.2 had mentioned that although the District Superintendent of Education appeared, yet the Petitioner did not. However, the Petitioner has stated at paragraph-25 that he was deliberately debarred from appearing in as much as although the date of hearing was fixed on 20.01.1997, yet he got the letter to that effect subsequently i.e. on 25.01.1997 and in that context, the Petitioner relied upon the envelope as contained at Annexure-12. 16. The Petitioner has further submitted that the earlier order dated 07.03.1988 passed by the Director, Primary Education, vide• Annexure-4 has been arbitrarily reviewed under the pretext of post dated Promotion Rules of 1993 which could not have been done because the order had been passed on 07.03.1988 (i.e. much before 1993). Moreover, according to the Petitioner, the Promotion Rules of 1993 could not have been made applicable upon the Petitioner because his right had already accrued prior thereto i.e. from 01.04.1974 and he was found so entitled by the Director, Primary Education on 07.03.1988. The Petitioner has further stated that the Respondent No.2 could not have exercised jurisdiction as if he was an appellate authority of the order passed by his predecessor in office. The petitioner has also stated and submitted that the order is malafide and has been passed with the obvious intention of frustrating the relief to which the Petitioner is entitled. 17. The petitioner has also stated and submitted that the order is malafide and has been passed with the obvious intention of frustrating the relief to which the Petitioner is entitled. 17. A Counter Affidavit in the instant case has been filed on behalf of the Respondent No.5. In the said Counter Affidavit, at paragraphs-20 and 21, it has been stated that the order of suspension was revoked on 24.07.1989 pursuant to the order of the Regional Deputy Director of Education, Ranchi and thereafter, he was posted at an Up-graded Middle School in Adramhatu, Sonahatu but the petitioner did not join nor did he submit any explanation against the charges levelled against him and as such the matter was placed before the District Establishment Committee on 19.12.1989 and the Committee approved the transfer order and decided to stop two annual increments and not to consider the matter of promotion of the Petitioner for three years. 18. In the Counter Affidavit, it has further been stated that the order dated 07.03.1988 could not have been passed because at that time there was a ban imposed on granting promotions to the teachers. They have further stated that the Petitioner filed C.W.J.C. No. 630 of 1995 (R) and in that Writ Application a Counter Affidavit was filed stating that the Petitioner had passed B.Ed. Examination in the year 1913 and that there was no Rule that the name of the teachers will be listed in the Gradation List after passing of the Training Examinations or that a teacher who received training certificate earlier will be• treated senior to a Teacher who has received Training Certificate later. It has further been stated at paragraph 24 that length of service will be calculated from the date of passing the training examinations and since the Petitioner himself has claimed that he had passed the Training Examination in the year 1973 and so he should be promoted to the BA Trained Post with effect from 1974 as against the Rule because prior to 1973, he was untrained and so his name cannot be enlisted before 1973. It has also been stated that the Petitioner's claim for promotion for the B.A. Trained scale is unjustified and not according to the Rule. In the year 1973, the Petitioner passed the Training Examination and as such he was rightly treated as Matric Trained Teacher only. It has also been stated that the Petitioner's claim for promotion for the B.A. Trained scale is unjustified and not according to the Rule. In the year 1973, the Petitioner passed the Training Examination and as such he was rightly treated as Matric Trained Teacher only. The other Teachers who passed Training Examination before the Petitioner are senior to him and B.A. Trained promotion is on the basis of gradation list. They have also stated that no relief was granted to the Petitioner vide C.W.J.C. No. 630 of 1995 (R) and the Petitioner was only given a liberty to file representation and in that view of the matter, he should not be allowed to agitate and reagitate the matter over and over again. 19. From the statements made above, it appears that what the Respondents have said appear to be correct. The claim of the Petitioner has been rejected by the High Court in C.W.J.C. No. 630 of 1995 (R). All that this High Court ordered was that he may file representation which would be disposed off on its own merits in accordance with law. That was done. Thereafter, the Petitioner filed a representation and it has now been rejected on the following grounds:- (i) Petitioner i.e. Muneshwar Prasad Vishwakarma was appointed as Assistant Teacher on Matric Un-trained Scale on 10.09.1964. (ii) The Petitioner passed his Intermediate and Graduation in the year 1968 and 1972 respectively. (iii) The Petitioner passed the B.Ed. in the year 1973. (iv) He was promoted on the Matric Trained Scale with effect from 01.04.1974. (v) He got the Intermediate Trained Scale with effect from 01.04.1980. (vi) As per the notification No. 4557, dated 15.12.1976, a teacher who was posted against the I.A. Trained Scale should be promoted to the BA Trained Scale as per the vacancies available and as per their position in the gradation list. (vii) In the gradation list prepared in accordance with 1993 Promotion as per the 1993 Promotion Rules, the position of the Petitioner is at SI. No. 124 and as per the Gradation list, only teachers up to SI. (vii) In the gradation list prepared in accordance with 1993 Promotion as per the 1993 Promotion Rules, the position of the Petitioner is at SI. No. 124 and as per the Gradation list, only teachers up to SI. No. 7 have been promoted to the B.A. Trained Scale in the Ranchi District and in view of the position of the Petitioner which is much below in the seniority list, the claim of the Petitioner is not proper and in that view of the matter, there is no justification in implementing letter No. 369, dated 07.03.1988, passed earlier by the then Respondent No.2. 20. Thus, from perusal of the aforementioned facts and circumstances, it appears that the Writ Petition is also barred on the principles of constructive res judicata. In that view of the matter, no interference is called for. 21. Reference in this case may be made to the Order dated 24.04.2003 wherein it was stated that the Respondents have now given promotion to the Petitioner with effect from 01.04.1979. In that view of the matter, the learned counsel for the Petitioner has confined his prayer to the effect that he be given promotion with effect from 01.04.1974. Since this Court had already rejected such prayer vide C.W.J.C. No. 630 of 1995 (R), such relief cannot be granted in this subsequent Writ Petition which is accordingly rejected. However, if promotion has been given from 01.04.1979, the same is now left at that. So far as the claim of the Petitioner for promotion with effect from 01.04.1974 and as has already been stated, the same is rejected. However, in the order dated 24.04.2003, while taking note of Mr. N.N. Tiwari's submission, it was directed that at least after issuance of order dated 01.09.1998 giving promotion to the Petitioner from 01.04.1979, the monetary benefits and consequential benefits should be given. The relevant portion of the aforementioned order dated 24.04.2003 is quoted herein below : "After the aforementioned order had been dictated, Mr. N.N. Tiwari states without prejudice to his rights to claim from 01.04.1974, that at least after issuance of the aforementioned order dated 01.09.1998, monetary benefits and other consequential benefits, i.e. corresponding pay scale and monetary benefits should be given to the Petitioner. N.N. Tiwari states without prejudice to his rights to claim from 01.04.1974, that at least after issuance of the aforementioned order dated 01.09.1998, monetary benefits and other consequential benefits, i.e. corresponding pay scale and monetary benefits should be given to the Petitioner. If the Petitioner has not so been paid, then the Respondents are directed to ensure that notwithstanding the pendency of this case before this Court, they must do the needful without prejudice to the right of the Petitioner in respect of the confined prayer made by Mr. N. N. Tiwari in this Court: 22. During the course of argument Mr. N. N. Tiwari, learned counsel for the Petitioner had informed that even in spite of the aforementioned order, the Respondents have not paid any monetary benefits to the Petitioner as per the order dated 01.09.1998 whereby and whereunder promotion has been given with effect from 01.04.1979. 23. Since the Petitioner has now been given promotion with effect from 01.04.1979, the Respondents are duty bound to release the entire arrears plus all monetary benefits in the appropriate scale. This matter has lingered for such a long time and therefore, the Petitioner should not be allowed to suffer any further on account of non payment of his monetary benefits at least with effect from 01.04.1979. Therefore, the Respondents are directed to do the needful as per their own order dated 01.09.1998; to calculate and pay all monetary and consequential benefits within a period of two months from the date of receipt of a copy of this Judgment. With the aforesaid observations and directions, this Writ Petition is dismissed. There shall however be no order as to costs.