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Jharkhand High Court · body

2009 DIGILAW 1226 (JHR)

Harilal Paswan v. State of Jharkhand

2009-09-02

D.G.R.PATNAIK

body2009
JUDGMENT : Petitioner, in this writ application, has prayed for issuance of a direction to the Respondents to grant him promotion in the Senior Grade on the ground that the persons junior to him in the Gradation List have been granted such promotion and he has been denied the benefits of the same. Further prayer has been made for directing the Respondents to consider the petitioner’s case for seniority from the date of his appointment in service as an Assistant Teacher with effect from 16.11.1972 and also to pay the arrears of pay and other allowances admissible to him for which he claims to be entitled. 2. Counter affidavit has been filed on behalf of the Respondents. 3. Heard Mr. Pawan Kr. Choudhary, learned counsel for the petitioner and Mr. Arbind Kr. Mehta, J.C. to S.C.I for the Respondent-State. 4. Facts of the petitioner’s case in brief are as follows: The petitioner who was appointed by the order of the District Superintendent of Education, Santhal Pargana, Dumka, dated-03rd November, 1972, as an Assistant Teacher, was posted in the Girls Middle School, Borio, Sahibanj. His appointment was on Matric Untrained Scale. As per the conditions declared in the letter of appointment, he was required to get Teacher’s Training. The petitioner’s grievance is that though other teachers similarly situated were relieved from duty for the purpose of obtaining the training, he was left out and not relieved nor was recommended for obtaining the Training. His further case is that he cleared his Intermediate Examination in the year 1975 and thereafter obtained his Graduation in 1978. It was only after repeated representations and a legal notice issued on behalf of the petitioner, that he was relieved by the Regional Deputy Director of Education, Santhal Pargana, Dumka on 06.05.1992 whereafter he could obtain his Training from the Government Teachers Training School, Deoghar in the Session 1992-93, the results of which were published on 16.08.1993. The further grievance of the petitioner is that a seniority list was prepared and published by the District Superintendent of Education, Sahibganj on 24.02.2005, indicating, therein that the petitioner was not considered for promotion since he was sanctioned Matric Trained Scale only on 16.10.1993 although juniors to the petitioner were granted such promotion and they got I.A. and B.A. Trained Scale. The claim of the petitioner is that though he had joined the service in the year 1972 but he was deliberately not sent for Training although his colleagues, who were junior to him, were relieved for Training. Such act on the part of the Respondents, according to the petitioner, was deliberate and discriminatory. His further contention is that his name was arbitrarily omitted in the preparation of the seniority list and in the matter of grant of promotion although such promotion was granted to the persons who were junior to him. Elaborating his claim that he has been arbitrarily discriminated, the petitioner would refer to the objections filed by him on 07.05.2005, against the Gradation List, stating that he was a B.A. Trained, having obtained his Teachers Training in 1993 and his name had appeared at Serial No. 40 in the Gradation List and further, that one Mohan Ravidas who had obtained Training in the year 1995, was wrongly placed at Serial No. 39 in the Gradation List. Upon such objections, his name was placed at Serial No. 39 of the Gradation List in the Matric Trained Teacher in the Scheduled Caste category. The petitioner’s further grievance is that though several other teachers, whose date of appointment was much later than the date of the petitioner’s appointment, were relieved for obtaining the Teachers Training for the Sessions 1975-77 and later for the Sessions 1979-80 and 1990-91, the petitioner was not relieved for obtaining the Training. Learned counsel has mentioned the names of several such Teachers, who according to him, were granted the benefits of obtaining the Training much prior to the date when he was relieved. 4. Learned counsel for the petitioner would argue that after taking over of the non-Government Elementary Schools by the State Government with effect from 01.01.1971, under the Bihar Non-Government Elementary Schools (Taking over Control) Act, 1976, the State Government had issued a Notification vide G.O. No.140, dated 23.01.1980 under which Rules were laid down to regulate and to make effective taking over of the other Elementary Schools under the provisions of Sub-section 4 (a) of Section 3 of the Act. Learned counsel explains that the provisions of Section 7 (e) of the Act envisages that “if any untrained Teacher appointed after 01.01.1971 possesses qualification below the degree level, he/she shall be given the facility of admission for obtaining the Training in the two year course in the Primary Teacher’s Education College, and if he/she possesses the Graduate degree, he shall be given the facility of admission in a 10 months’ B. Ed. Training Course”. Learned counsel adds that since he was appointed by the order of the District Superintendent of Education, on 03rd November, 1972, it was the responsibility of the State Government to send him for Training in Time. The petitioner having not been sent for Training within time, he should not be made to suffer because of the lapses of the Respondents-authority. 5. As regards the Rules for grant of promotion to the Teachers, learned counsel would refer to the State Government Notification No. G/M.7-074/76 E-4557, dated-15th December, 1976 (Annexure-7) and explain that the mode of giving promotions to the Teachers, was vacancy based promotion and promotion, as has been explained in the Bihar Taken Over Elementary School Teachers Promotion Rules, 1993, which was made effective from 01st January, 1986. Learned counsel contends that the present Rules of Promotion of 1993 is therefore, not applicable in the case of the petitioner. The vacant posts of I.A. Trained Scale were to be filled-up by promotion from the present working Teachers. Likewise, the vacant posts of B.A. Trained Scale was to be filled-up by promotion from amongst the working Teachers as per their seniority in the Annual Gradation List. The Gradation List, according to the learned counsel, was required to be prepared every year by the end of February on the basis of qualifications obtained by the Teachers on 31st December and from such lists after obtaining approval, the vacancies available in the same year between 01st April to st March, was required to be filled up by promotion, according to seniority. Learned counsel adds that in the matter of preparing the seniority list, the aforesaid Government Circular had declared that the basis of seniority shall be the date of first regular appointment. Learned counsel adds that in the matter of preparing the seniority list, the aforesaid Government Circular had declared that the basis of seniority shall be the date of first regular appointment. In the event of the date of first regular appointment being the same, then the higher qualification shall form the basis of seniority and when even the qualification of the several teachers are the same, then the date of birth shall be the basis of seniority. Learned counsel submits that since the petitioner had obtained his Graduation on 20th October, 1978, he ought to have been listed in the graduate seniority list in the year 1978 itself and promotion should have been given to him accordingly as per the vacancy available thereon. 6. Referring yet to the another Circular of the State Government, dated 04.05.1966, which was issued prior to the Bihar Taken over Elementary School Teacher’s Promotion Rules, 1993, learned counsel submits that the State Government had started an intensive short course training for I.A. passed Elementary Teachers, who have completed 5 years’ service. Under Clause (3) of the Circular, the Government had declared its decision that in these training schools, I.A. passed Teachers, who have completed regular service of 5 years or more may be deputed for Training in the intensive course for one year. Learned counsel submits that the Circular clearly mandates that it is the responsibility of the Regional Deputy Director of Education to send the I.A. Passed Teachers who have completed five years of service for availing the Training and that the petitioner has been arbitrarily made to suffer on account of the lapses of the concerned authorities of the Respondents. 7. Per contra, the stand taken by the Respondents is that admittedly, the petitioner was appointed on 03.11.1972 on the Matric Untrained Scale. As per the conditions stipulated in the Appointment Letter itself, the petitioner was to get the Teachers Training at his own cost. The petitioner did not opt for obtaining the Training nor did he approach the authorities concerned for relieving him from duty to obtain the Training. It was only in 1991 that the petitioner had approached the concerned authorities for relieving him to obtain the teacher’s training. On his demand being considered, he was relieved from duty and had availed his Training in the year 1993. It was only in 1991 that the petitioner had approached the concerned authorities for relieving him to obtain the teacher’s training. On his demand being considered, he was relieved from duty and had availed his Training in the year 1993. Furthermore, after preparation of the provisional Gradation List, in response to the invitation of objections, the petitioner had also filed his objection on 07.05.2005, claiming that his name ought to have been placed above the other teacher, namely, Mohan Ravidas. The objection was considered and the petitioner’s name was placed above the other Teacher, namely, Mohan Ravidas in the List of Matric Trained Schedule Caste Category. No further objection was raised by the petitioner. Furthermore, after the petitioner had obtained his teacher’s training, he was granted the Matric Trained Scale in the year 1993. 8. Learned counsel for the Respondents would explain that under the provisions of the Bihar Taken Over Elementary School Teacher’s Promotion Rules, 1983, which was made effective from 01.01.1986, it is envisaged under Clause 6 (1) of the Rules that for promotion from Grade I to Grade II, from Grade IV to Grade V, from Grade VII to Grade VIII, 12 years’ satisfactory service was necessary in each of the Grades. The petitioner having obtained the Matric Trained Teacher Training in the year 1993, had completed 12 years’ satisfactory service in Grade I only 2005. Furthermore, as per Rule 7 (1) of the Promotion Rules, 1993, the Matric trained teachers, who have completed 18 years of service in Grade II, have been placed in seniority List No. 1. The petitioner having completed 12 years’ of service in the Matric Trained Scale in 2005, he was not entitled to Matric trained Selection Grade pay-scale. 9. From the rival submissions, the facts which emerge are that the petitioner was initially appointed in the Matric Untrained Scale on 03.11.1972. Admittedly, one of the conditions in the Appointment Letter was that the appointee has to obtain Teacher’s Training at his own cost. From the statements declared in the counter affidavit, the petitioner did not apply for being relieved for the purpose of availing the teacher’s training in any of the Sessions, prior to 1991, and it was only by his written communication dated 11.01.1991 that he had sought to be relieved from duty for the purpose of availing the Training. From the statements declared in the counter affidavit, the petitioner did not apply for being relieved for the purpose of availing the teacher’s training in any of the Sessions, prior to 1991, and it was only by his written communication dated 11.01.1991 that he had sought to be relieved from duty for the purpose of availing the Training. His prayer was considered and he was relieved from duty whereafter he had obtained his Training in the Sessions 199293, the results of which were published on 16.08.1993. 10. It appears that all such other Teachers, who were appointed alongwith the petitioner or after him, had opted for obtaining the Training and had sought to be relieved for the purpose of getting the Training, whereas the petitioner did not choose to inform the concerned authorities of the Respondents about his intentions for obtaining the Training at his own costs. Rather, as it appears that, the petitioner was content in continuing on his Matric Trained Scale, though he continued to obtain higher qualifications by clearing his Intermediate Examination in 1975 and thereafter his Graduation in 1978. As per the Rules, the Teacher would be eligible for the Matric Trained Scale only after he obtained his teacher’s training. 11. The Government Notification, which prescribes the Rules relating to Training of I.A. Passed Teachers, only declares that for the Special one year Training course, which was introduced by the State Government, only those Teachers, who had passed I.A. and had completed five year’s of satisfactory service could be eligible and on the basis of such eligibility, they could be relieved from duty for the purpose of obtaining the Training. The Rule does not cast any obligation upon the concerned authorities to suo-motu send the Teacher for Training. Rather, the Rule, while declaring the eligibility, leaves it to the option of such Teachers to obtain the Training at their own cost and the concerned authority upon being informed of the request of such eligible Teachers, would relieve the Teachers from duty to enable him to obtain the Training. 12. The petitioner, therefore, cannot insist that it was the duty of the Respondent-authority to relieve him and to send him for Training, even without the petitioner exercising his option for availing the Training. 12. The petitioner, therefore, cannot insist that it was the duty of the Respondent-authority to relieve him and to send him for Training, even without the petitioner exercising his option for availing the Training. In Clause 7 of the State Government’s Notification, issued by G.O. No. 140, dated 23.01.1980, referred to by the petitioner, the Rules relating to Training, lays down that “if any untrained teacher appointed after 01.01.1971 possesses qualification below degree level, he/she shall be given the facility of admission in two year course in the Primary Teacher’s Education College and if he/she possesses a Graduate degree, he shall be given the facility of admission in 10 months, B. Ed. Training Course. Such untrained Teachers, whose services have been taken over, shall have to get themselves trained at their own cost within a period of two years from the date of taking over of their services”. 13. As regards the petitioner’s claim for promotion, as it appears admittedly, the petitioner had obtained his Training in the year 1993. The Notification containing the Government Promotion Rules, as declared in the Bihar Taken Over Elementary Schools Teacher’s Promotion Rules, 1993, which was implemented on and from 09.07.1993, lays down the criteria for promotion to the Higher Grades under which a minimum 12 years of satisfactory service in each Grade, has been prescribed. Admittedly, the petitioner could be inducted in Grade I of the Matric Trained Scale, only after he obtained the teacher’s training in 1993. He could be eligible for his promotion, to the higher Grade only after completing 12 years’ in his initial Grade. 14. It may be noted that the regular Sessions were available to the Teachers in the Teachers’ Training Institutes/Colleges and the Teachers desirous of obtaining the Training, could enroll themselves for obtaining the Training in any of the Sessions. 15. As regards the filling up of the vacancies by promotion, the Rules lay down that while the appointment on Matric Trained Scale can be made by way of direct appointment, and that the Matric Trained Scale shall be given to such untrained Teachers, from the date when they obtain the Training, the Rule for filling up the vacancies in the I.A. Trained Scale and the Graduate Trained Scale, lays down that such vacancies identified every year, should be filled up from amongst the working Teachers. The Rule cannot be interpreted to suggest that the vacancies in the I.A. Trained Scale and the B.A. Trained Scale can be filled up by such Teachers, who are untrained. 16. As observed above, the petitioner had admittedly obtained his Teachers Training in 1993 and thereafter, he was only placed in the year Grade I of the Matric Trained Scale, his Promotions to the Higher Grade could be given only, after he completes the minimum stipulated period of working experience. 17. Considering the above facts and circumstances, I do not find any merit in this writ application. Accordingly, this writ application is dismissed.