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Jharkhand High Court · body

2009 DIGILAW 227 (JHR)

Sheo Nandan Ram v. State of Jharkhand

2009-02-12

AJIT KUMAR SINHA

body2009
Order In the instant writ petition the petitioners pray for issuance of an appropriate writ, order or direction in the nature of mandamus for quashing the order issued by the District Superintendent of Education, Chatra on 15.1.1999 by which he has given BA trained scale to the science teachers and subsequently also passed order on 31.12.2001 for holding the post of headmaster taking into consideration 1993 Rules. The petitioners submits that in view of this order the senior-most teachers who are holding the qualification of BA trained and all of them are senior to them, they are working under them and they are still getting matric trained scale and holding the post of Assistant Teachers which action is wholly illegal, mala fide and without jurisdiction and for the purpose of allowing illegal promotion the respondents have prepared a list of I.Sc. and B.Sc. teachers but they did not take notice of I.A. and BA trained teachers meaning thereby that the respondents have created a separate cadre of Science and Arts teachers which is wholly illegal as 1993 Rules which is the basis of the promotion and order dated 15.1.99 as well as subsequent promotions of the science teachers to the post of Headmasters has already been declared ultra vires by the Hon'ble Patna High Court in C.W.J.C. Nos. 3160/93 as well as CWJC No. 6475/93* in which the Hon'ble Patna High Court clearly stated that the respondents were not justified in granting promotion to the science teachers on BA trained scale without preparing the joint seniority list of Arts and Science teachers and they cannot refuse promotion of the petitioners to graduate trained scale merely on the basis that they are not possessing the qualification of graduate in science. So the order is contrary to the judgment of the Hon'ble Patna High Court and this fact is known to the respondents but even then they are bend upon to act according to their own sweet will. So the action is wholly arbitrary, mala fide and unconstitutional. The petitioners who are much more senior to them i.e. the science teachers, their seniority is going to be ruined as they are not being allowed graduate trained scale. So the order dated 15.1.1999 as well as subsequent promotions on the basis of order dated 15.1.1999 are fit to be quashed. 2. The petitioners who are much more senior to them i.e. the science teachers, their seniority is going to be ruined as they are not being allowed graduate trained scale. So the order dated 15.1.1999 as well as subsequent promotions on the basis of order dated 15.1.1999 are fit to be quashed. 2. It is relevant to record that the Honoble Division Bench vide its order dated 17.9.2008 has specifically directed that this Writ Petition be listed before the learned Single Judge for decision on merit. The issue decided by the Division Bench (supra) and in the instant case are identical as to whether Science and Arts teachers have separate cadres or not. 3. The short point in issue for consideration is as to whether the respondents are bound by an order passed by a Division Bench of Hon'ble Patna High Court in CWJC No. 3160 of 1993 with CWJC No. 6475 of 1993* (Naresh Jha & Binod Kumar Verma & Ors. vs. The State of Bihar & Ors.) which has conclusively decided the issue in question in view of the fact that there are similar matters filed subsequently pending before learned Single Judge of this Court and also in view of the fact that one of the learned Single Judge has stayed the notification dated 26.11.1996 and 9.12.1996. According to the respondents these two memos were issued in compliance to the order and direction issued in Naresh Jha case. 4. The Hon'ble Division Bench in Naresh Jha case held as under:- "On the basis of the above discussion, I am constrained to hold that the classification between Arts and Science teacher in the absence of duly constituted separate cadre for them is arbitrary and, therefore, the petitioners cannot be denied their right of promotion to the Graduate trained scale i.e. Grade-4 merely on the basis of their not possessing the qualification of Graduation in Science. The impugned order of the Director, Primary Education, dated 8th/15th January, 1993, and the consequential order issued by the District Superintendent of Education accordingly cannot be sustained." 5. The impugned order of the Director, Primary Education, dated 8th/15th January, 1993, and the consequential order issued by the District Superintendent of Education accordingly cannot be sustained." 5. It appears that thereafter contempt petition was also filed bearing M.J.C. No. 710 of 1996 for the non-implementation of the order and direction issued and a Division Bench of the Patna High Court as it then was, directed as under:- "In the view of the matter this application is disposed of with a direction to the opposite party to prepare a gradation list strictly in accordance with the principles laid down in Annexure 3rd. This direction will apply to the preparation of gradation list for all districts in the State of Bihar and it will not be necessary for the petitioners in each districts to move separately contempt application or separate writ petition for grant of such benefit. It will be open to the State of Bihar to make such modification in the gradation list as may be necessary in the light of the principles laid down in Annexure-3rd. Any justification for the delay in the preparation of gradation list will not be entertained and the step for preparation of gradation list should be undertaken immediately for the completion within three months. This application stands disposed of accordingly." 6. Thus the entire order has been given effect to and has attained finality and there is no dispute about the same holding the field. 7. The counsel for the respondent State has brought to my attention a supplementary affidavit filed on behalf of respondent No. 5 wherein at page 7 an interim order dated 18.12.1996 passed in CWJC No. 12708 has been annexed vide which the operation of the impugned order dated 26.11.96 and 9.12.96 was stayed. Subsequently vide order dated 16.7.1997 in CWJC Nos. 12234, 12708 and other connected matter which is annexed at page 8, the interim order was modified wherein it was directed that since the order of reversion was challenged, the interim order of stay has been passed in favour of the parties. This means that only the reversion order was stayed and the learned Single Judge also referred the matter before Division Bench. 8. The counsel for the respondent submits that due to the aforesaid facts they are not able to implement the order of Naresh Jha case and the order passed in M.J.C. 710 of 1996. This means that only the reversion order was stayed and the learned Single Judge also referred the matter before Division Bench. 8. The counsel for the respondent submits that due to the aforesaid facts they are not able to implement the order of Naresh Jha case and the order passed in M.J.C. 710 of 1996. After reference to Division Bench the respondent No. 5 has annexed an interim order of Division Bench dated 7.2.2001 which only directs to file third copy. What happened thereafter has neither been brought on record nor stated or argued. 9. Bihar Taken Over Elementary School Teachers Promotion Rules 1993 (in short the Promotion Rules') framed under Article 309 of the Constitution came into effect from 1.1.86. Promotion Rules have been categorized in as many as 8 grades. As per Rule 7(2)(i) in the promotion to Grade-4 a distinction has been made between Arts teacher and Science teacher. 10. However, neither at the previous stage nor at any subsequent stage of promotion such a classification has been maintained. It is difficult to visualize that two sets of persons belonging to the same cadre at the stage of promotion to Grades 2 & 3 (senior scale and selection scale of Matric trained teachers) will form different cadres at intermediate stage and then again get amalgamated into one cadre at the later stages of promotion to Grades 6, 7 and 8. The promotion Rules can't be said to have created a separate cadre for the. Arts and Science teachers and thus the classification for the purposes of promotion on the assumption that separate cadres have been created is erroneous and unsustainable. 11. On the basis of the above discussion, I am constrained to hold that the classification between Arts and Science teacher in absence of purely constituted separate cadre is arbitrary and therefore, the petitioners cannot be denied their right of promotion to the graduate trained scale i.e. Grade-4 merely on the basis of their not possessing the qualification of graduation in science. The impugned order of the Director, Primary Education dated 8thl 15th January, 1993 and the consequential order issued by the District Superintendent of Education accordingly cannot be sustained and was set aside. 12. The impugned order of the Director, Primary Education dated 8thl 15th January, 1993 and the consequential order issued by the District Superintendent of Education accordingly cannot be sustained and was set aside. 12. Be that as it may, the fact remains that the Honoble Division Bench order passed in Naresh Jha case has attained finality both by its own order and also in view of the order passed by the Division Bench in contempt matter and judicial discipline requires that the order of the larger Bench should be followed. For the ends of justice the respondent-State is directed to prepare a joint gradation list based on seniority and promote the senior teachers in accordance with law. 13. Considering the aforesaid facts and circumstances of the case and in the light of judgment of Naresh Jha case, this writ petition is allowed with no order as to cost. 14. The petitioner should also be considered at par with Science Graduate in the light of the order of the Division Bench.