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2003 DIGILAW 917 (JHR)

Goverdhan Hembrom v. State Of Bihar

2003-07-30

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. Heard Mr. M.M. Sharma, learned counsel for the petitioner and Mr, Azimuddin, learned JC to the GP I for the State-respondents. 2. The petitioner in the instant case has challenged the validity of Annexure 9 which is the order dated 23.3.1998 and which has been passed pursuant to the order dated 24.11.1997 passed in CWJC No. 1284 of 1997(R). In the aforementioned Writ Application, the Petitioners grievance was that inspite of the fact that he was senior to very many teachers, yet he was not being granted necessary promotion nor being given appropriate scales and consequently, he prayed for issuance of a Writ of Mandamus. 3. The case of the petitioner right from the beginning is that he was appointed as an Assistant Teacher on 28.5.1976 in a regular pay scale. He was transferred in the year 1982 from a primary school to a Middle School and in the year 1990he was given I.A. Trained Scale with effect from 1.4.1988. The claim of the petitioner is that he should be given the scale from 1.4.1983 and he should be given B. A. Trained scale from 1987. He also claims promotion on the post of Head Master. 4. Since the respondents were not considering his case, the petitioner filed the aforementioned Writ Application and the same was disposed off on 24.11.1997 with a direction that in the event the petitioner filed a detailed representation, the District Superintendent of Education would look into the grievances of the petitioner and would pass an order in accordance with law. According to Mr. Sharma, the respondents thereafter passed the impugned order but repudiated the claim of the petitioner on grounds which were not made applicable in the case of other persons who are junior to the petitioner. At paragraph 15 of the Writ Application, the petitioner has stated thus :-- "15. That it is further stated that though the petitioners name in the said gradation list of I.A. trained teacher was placed at serial No. 4 which was prepared for the purpose of granting B.A. trained scale for back in the year, 1994 but the petitioner was deprived of the said B.A. trained scale while several juniors were granted B.A. trained scale with effect from March and April, 1987. For brevity and sake of convenience a chart of such persons who were similarly situated and absolutely juniors to the petitioner were granted B.A. trained scale is being given hereunder :-- __________________________________________________________________ Name D/A M.T. I.A.Trained B.A.Trained H.M. __________________________________________________________________ 1. Majendra Jarika 11.6.1997 11.6.1976 1.4.1983 1987 18.6.1996 2. Chandra Mohan Purty 8.10.1976 8.10.1976 1.4.1983 10.3.19 87 18.6.1996 3. Chandra Mohan Mahto 23.10.1976 1.6.1977 15.4.1983 7.3.1987 4. Jagdish Mahto 1.6.1977 1.6.1977 11.4.1983 4.3.1987 20.4.1990 5. Bishwanath Mahto 1.6.1977 1.6.1978 31.3.1983 5.3.1987 20.4.1990 6. Ramnath Mahto 28.5.1976 1.6.1977 15.4.1983 1.4.1987 1990 7. Arbind Kumar 8.10.1976 8.10.1976 1.3.1983 1.4.1987 8. Upendra Narayan 31.8.1969 20.9.1976 15.4.1983 4.3.1937 18.3.1996" __________________________________________________________________ 5. Upon perusal of the aforementioned statement at paragraph 15 it is apparent that the petitioner has given details of persons who according to him are junior and yet, were given the benefit of all the three claims which the petitioner is also demanding. In reply to the aforementioned paragraph 15, the respondents have merely stated at paragraph 15 of the Counter Affidavit that the chart furnished by the petitioner requires verification. The statement made in paragraph 15 of the Counter Affidavit is therefore reproduced below :-- "15, That with regard to the statements made in para 15 of the writ application, under reply it. is sated and submitted that the chart given by the petitioner is not correct and it needs verification and it cannot be said that juniors to the petitioner has been given I.A. and B.A. Trained Scale and promotion to the post of Headmaster, hence allegations are denied." 6. From a perusal of the impugned order which is contained at Annexure 8 it appears that at paragraph 2 thereof, the respondent No. 4 has merely referred to one Hardeo Tripathy and the case of Jagdish Mahto and has stated that the promotions granted to them had been cancelled on the basis of an order passed in CWJC No. 178 of 1996(R). So far as this statement is concerned, Mr. M.M. Sharma produced for perusal of this Court an order dated 12.8.1999 passed in CWJC No. 2051 of 1998(R). Upon perusal of the said order it appears that order of reversal was set aside in so far as those petitioners are concerned. So far as this statement is concerned, Mr. M.M. Sharma produced for perusal of this Court an order dated 12.8.1999 passed in CWJC No. 2051 of 1998(R). Upon perusal of the said order it appears that order of reversal was set aside in so far as those petitioners are concerned. The aforementioned fact has been mentioned by the petitioner at paragraph 16 of his reply to the Copnter Affidavit and the same is also therefore necessary to be quoted :-- "16. That it is further relevant to mention here that Ramnath Mahto. Bishwanath Mahto, Hardeo Tripathy, Jagdish Mahto were granted promotion to the post of Headmaster vide order as contained in Annexure-4 which was subsequently cancelled by the respondents, was challenged before this Honble Court in CWJC No. 2051/98(R) and this Honble Court has been pleased to set aside the order of cancellation of promotion vide order dated 12.8.1999 and the impugned order as contained in Annexure 8 has been issued on 23.3.1998 i.e., prior to the order of the Honble Court and therefore, the grounds mentioned in Annexure 8 by the respondent No. 4 rejecting the claim of the petitioner are non est and accordingly the order as contained in Annexure 8 is fit to be quashed by this Honble Court and the petitioner further deserves interference of this Honble Court for re-consideration of his case and grant of B.A. trained scale and promotion to the post of Headmaster atleast from the date from which juniors to the petitioner have been given those benefits as has been done by this Honble Court in CWJC No. 3986/99(R) and in other cases which shall be produced before this Honble Court at the time of hearing of this case." 7. So far as Arvind Kumars case is concerned, respondent No. 4 has stated at paragraph 3 of the impugned order that his promotion to the B.A. trained Scale has also been cancelled by order dated 6.4.1996. However so far as other, persons, namely, Majendra Jarika, Chandra Mohan Purty, Chandra Mohan Mahto and Upendra Narayan are concerned, the respondent No. 4 has not said anything. It therefore appear as that there has not been proper consideration by the respondent No. 5 in relation to the case of the. petitioner. However so far as other, persons, namely, Majendra Jarika, Chandra Mohan Purty, Chandra Mohan Mahto and Upendra Narayan are concerned, the respondent No. 4 has not said anything. It therefore appear as that there has not been proper consideration by the respondent No. 5 in relation to the case of the. petitioner. In a similar case a judgment has been delivered by this Court in the case of Dinesh Chandra Mahto v. State of Bihar and Ors., wherein it has been held that if it is not explained as to why and under what circumstances the petitioner was given appropriate scales after his juniors, then the petitioner of that case would also be entitled to promotion and to the benefits of further promotion from the date when other persons had been promoted. The judgment of that case has been delivered by Honble Mr. Justice M.Y. Eqbal and the same has been reported in 2002 (1) JCR 52 (Jhr). At paragraph 4 the Honble Court has stated thus :-- 4, In that view of the matter there is no jurisdiction in rejecting the claim of the petitioner merely on the ground that he was given I.A. trained scale and B.A. trained scale after the candidates junior to him. The matter needs reconsideration by the DSE I, therefore, direct the DSE West Singhbum, Chaibasa to reconsider the claim of the petitioner and if it is found that persons junior to the petitioner have been given I.A and B.A. trained scale prior to the date when the petitioner was given, then necessary decision may be taken for giving promotion to the petitioner in the aforesaid scale with effect from the date when other persons have been given consequently the benefits of further promotion to the post of Headmaster shall also be considered in the same manner as other candidates junior to him have been considered. The DSE shall take, decision of giving benefits to the petitioner within 30 days from the date of receipt of a copy of this order." 8. In yet another judgment delivered by Honble Mr. Justice S.J. Mukhopadhaya in the case of Mrs. Zahira Nishad Ansari v. State of Bihar reported in 2001 (3) JCR 534, his lordship has held that promotion can even be granted from retrospective effect if a junior is promoted and the case of the senior is not considered. In yet another judgment delivered by Honble Mr. Justice S.J. Mukhopadhaya in the case of Mrs. Zahira Nishad Ansari v. State of Bihar reported in 2001 (3) JCR 534, his lordship has held that promotion can even be granted from retrospective effect if a junior is promoted and the case of the senior is not considered. The aforementioned judgment has also been brought on record by Annexure 9 of the instant writ application. 9. This Court is in respectful agreement with both the judgments passed by two Honble Judges of this Court and since this Court has already observed that the case of the petitioner has not received proper consideration at the hands of the respondents, it would be in the fitness of things and expedient in the interest of justice that the matter should be directed to be reconsidered. However, since the respondent No. 4 has already applied his mind and has come to a conclusion, it would be only proper that some other authority reconsiders the case of the petitioner. Accordingly, the Director, Primary Education. Government of Jharkhand shall do the needful Consequently, the impugned order as contained at Annexure 8 is set aside and the matter is remanded to the Director, Primary Education, Government of Jharkhand to do the needful in the matter. For his convenience, it will be the duty of the petitioner to once again file a detailed representation before the said authority within a period of four weeks from today. If such representation is filed within the aforementioned period, then the Director, Primary Education, Government of Jharkhand shall deal with the matter and dispose off the same in accordance with law after taking into consideration the observation made herein within a period of eight weeks from the date of receipt of a copy of this judgment. The writ application is therefore allowed. No order as to costs.