Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 1107 (JHR)

Md. Nazim v. State of Jharkhand

2008-09-10

D.G.R.PATNAIK

body2008
Order Since the facts and the issues involved in all these cases are identical, they are disposed of by this common order. 2. The petitioners who are Teachers in different Secondary Schools, have sought for a direction upon the Respondents to consider them for promotion to the post of the Headmaster on the ground that they have been working as the acting Headmasters or seniormost Teachers of their respective Schools and were eligible for promotion to the post of Headmaster in terms of the provisions of Bihar Nationalized Secondary Schools (Service Conditions) Rules, 1983. 3. Admittedly, the petitioners were appointed as Trained Graduate Assistant Teachers and have possessed Master Degree with Teachers' Training Diploma. They were given selection Grade and some of them, even Super Selection Grade. 4. The contention of the petitioners is that for the purposes of laying down the service conditions including the preparation of seniority list and promotion, rules were framed under the provisions of Section 9 of the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981. 5. Rule 4 of the said Rules prescribed minimum eligibility and qualification for appointment/promotion to the post of Headmaster, under which the candidate should possess a B.Ed. Degree of a recognized University or B.Ed., Diploma in Education, Diploma in Teaching/C.T. or any equivalent qualification of Teachers' Training by any recognized University or Board recognized by the State Government. In cC\se of direct recruitment, B.Ed. Degree with ten years' teaching experience for general category and seven years for the members of Scheduled Tribes, Scheduled Castes and female candidates or eight years' experience in the Selection Grade etc. was prescribed. In the early part of the year 2000, the process of promotion to the post of Headmaster was undertaken by the State of Bihar and pursuant to which the Regional Deputy Directors of Education be called upon to send the State Seniority List of Assistant Teachers for promotion to the post of Headmaster. Accordingly, the seniority list was prepared in terms of Bihar Nationalized Secondary Schools (Service Conditions) Rules, 1983 read with Government Order No. 519 dated 2nd July, 1983. The teachers who were in the Post Graduate Trained Scale and Selection Grade in Graduate Trained Scale, their inter se seniority was to be decided on the basis of date of grant of scale in Post Graduate Scale or Selection Grade Scale. The teachers who were in the Post Graduate Trained Scale and Selection Grade in Graduate Trained Scale, their inter se seniority was to be decided on the basis of date of grant of scale in Post Graduate Scale or Selection Grade Scale. Such inter se seniority of Teachers was decided on State level. Even when the matter was initiated by the State of Bihar for consideration of promotion on 80 per cent vacant posts was pending, the erstwhile State of Bihar was bifurcated by the creation of State of Jharkhand by virtue of the Bihar Reorganization Act, 2000 on 15th November, 2000. The State of Jharkhand proceeded to take steps for promotion on the post of Headmaster on the promotional quota of Nationalized High Schools. Fresh Gradation List applicable to the Teachers within the State of Jharkhand was finally prepared on 20th July, 2005. When the process of preparing the final Gradation List after calling for the relevant details and documents from the District Education Officers of East Singhbhum was initiated the authorities of the State Government came out with a new provisional Gradation List of Assistant Teachers, prepared on the basis of Rules framed on 5th November, 2004 under the Jharkhand Non Government Secondary Schools (Services Conditions) Rules, 2004, referred to as the "Rules 2004". In the new Gradation List, the eligibility for promotion on the post of Headmaster was totally changed prescribing a Post Graduate Degree, a Degree in Bachelor of Education and ten years' teaching experience in recognized High Schools as the minimum eligibility criteria. Further criteria as laid down was that promotion to the post of Headmaster will be given on the basis of date of grant of Selection Grade Scale among the Selection Grade holder teachers and if Selection Grade Teachers are not available, then such Teachers also can be considered, who have completed 24 years of service as applicable to the General category, and 18 years of services in the case of the members of Scheduled Castes and the Scheduled Tribes. Under the new Rule, the Post Graduate Trained Teachers, who possess Diploma in Teaching, Diploma in Education, Diploma in Physical Education and Basic Training Certificate, were to be disqualified. Even if a teacher is seniormost in the State in Selection Grade, he would be ineligible, if he is not a Post Graduate Degree holder. 6. Under the new Rule, the Post Graduate Trained Teachers, who possess Diploma in Teaching, Diploma in Education, Diploma in Physical Education and Basic Training Certificate, were to be disqualified. Even if a teacher is seniormost in the State in Selection Grade, he would be ineligible, if he is not a Post Graduate Degree holder. 6. The grievance of the petitioners is that since the process of filling up all vacant posts of Headmasters in the Nationalized High Schools had commenced in Early 2000 and it had almost reached the stage of completion and since the appointments were to be made against the vacancies, which had occurred prior to the promulgation of the New Rules of 2004, they cannot be denied consideration by imposing upon them a new Rule that too with retrospective effect. The stand taken by the Respondents In all these cases through their counter affidavit, is that after the bifurcation of the erstwhile State of Bihar, the State of Jharkhand has framed the Rules of 2004 and since the Government of Jharkhand had recently adopted the Course of Central Board of Secondary Education (C.B.S.E.) for the Schools, Rules were accordingly, framed for promotion in lines with the Rules of the Central Government. As such, even though the petitioners may be the seniormost Teachers and even incharge Headmasters, but since they do not fulfill the prescribed criteria for the promotions under the provisions of 2004 Rules, the petitioners cannot claim any right to their promotion. 7. The order impugned in these cases is a Notification, issued by the Human Resources Development Department, Directorate of Secondary Education dated 21.5.2008, issued under the signature of the Director, Secondary Education, Jharkhand, and the Notification contains the list of the Assistant Teachers, who have been granted promotion to the posts of Headmasters in the Schools mentioned against their respective names. The grievance of the petitioners in respect of the impugned Notification is that while on the one hand their names have been omitted on the ground of the alleged disqualification on the basis of the 2004 Rules and on the other hand the Teachers who were admittedly, junior in the Seniority List, have been granted such promotion to the post of Headmaster. 8. 8. It would be relevant to note that even though the impugned Notification was issued, but it was declared that the same would be subject to the final decision passed by the Jharkhand High Court in W.P. (8) No. 7822 of 2006 in the case of Yudhisthir Mahato & Others VS. The State of Jhakhand & Others. The aforesaid writ petition has since been disposed of by a Bench of this Court vide order dated 25.6.2008, a copy of which has been filed by way of supplementary affidavit as Annexure-7. 9. The facts in the case 'of Yudhisthir Mahato & Others [W.P.(S) No. 7822 of 2006], the issues involved and the questions of law as raised therein, are identical to the facts, issues and questions of law raised in the present writ applications. 10. In the light of the pleadings advanced in the aforesaid writ application, the learned Single Judge while relying upon the judgment of the Supreme Court in the case of V.V. Rangaiah & Others VS. J. Sreenivasa Rao & Others reported in (1983)3 SCC 284 and applying the principles laid down, therein, has observed as follows:- "30. Admittedly, the vacancies had also occurred prior to framing of the new rule against which the process of appointment/promotion was initiated. The respondents were responsible for the delayed process. They cannot deny or deprive the petitioners consideration on the plea of coming into force of Rules 2004 in the meanwhile for no fault of the petitioners. The said Rules 2004 came into effect on 5th November, 2004. The said Rules has not been made applicable with retrospective effect. In that view, the petitioners must be held to be eligible for consideration for promotion to the posts of Headmaster for which the process was initiated, much prior to coming into force of the Rules 2004. The respondents cannot deny consideration of the petitioners on the ground of not fulfilling the required criteria of the new Rules 2004." 11. On the basis of the findings recorded in the judgment, the learned Single Judge had disposed of the writ petition, with the following observations:- "32. The respondents cannot deny consideration of the petitioners on the ground of not fulfilling the required criteria of the new Rules 2004." 11. On the basis of the findings recorded in the judgment, the learned Single Judge had disposed of the writ petition, with the following observations:- "32. In view of the above discussions, I find and hold that the consideration of the petitioners for promotion to the posts of Headmaster, who were qualified and eligible in accordance with the rule applicable at the time of initiation of the process of consideration, cannot be denied on the ground of coming into force the new Rules 2004, which has not been made applicable with retrospective effect. For that purpose, Rules 2004 cannot be applied in the cases of the petitioners with retrospective effect. II 12. The same ratio applies squarely to the present case. Accordingly, I find and hold that the petitioners who were qualified and eligible in accordance with the Rules applicable at the time when the process for promotion was initiated, cannot be denied on the ground of coming into force the new 2004 Rules, by applying the same with retrospective effect. 13. With the above observations, these writ petitions are disposed of.