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2011 DIGILAW 2290 (PAT)

Raghunath Poddar v. State Of Bihar

2011-11-17

MIHIR KUMAR JHA

body2011
Order Heard counsel for the parties. 2. The petitioner, a retired teacher of a Primary School, is before this Court with a grievance that neither his promotion in B.A. trained scale was given by the authority at appropriate point of time nor the order issued after 11 years of his retirement granting him the notional benefit of pay scale of Headmaster has any justification, inasmuch as the petitioner cannot be deprived of the financial benefit of the post of Headmaster from the date such promotion was notified. 3. As usual there is no counter affidavit on behalf of the State and this Court has got no material before it to examine the claim of the petitioner. 4. From the averments made in the writ application it appears that initially the petitioner was claiming promotion in B.A. trained pay scale by citing example of one Sukrita Kumari, who according to him being junior was given such promotion in B.A. trained scale with effect from 29.1.1991. The petitioner, however, did not pursue his claim beyond filing of the representation and had retired on 31.12.1997. After four years of his retirement he had filed C.W.J.C. No. 6670/2001 claiming his promotion in B.A. trained scale with effect from 1.6.1983. During the pendency of the writ application the authorities had examined such claim of the petitioner and had rejected it by a reasoned order contained in Memo No. 1720 dated 5.6.2003 but the said order was not brought on record either by the petitioner or by the State by filing a counter affidavit. Consequently this Court in ignorance of the aforementioned order of the authority dated 5.6.2003 had disposed of the writ application on 4.8.2006 directing the authorities to consider the claim of the petitioner and pass an appropriate order on his representation as with regard to promotion in B.A. trained scale with effect from 1.6.1983. 5. The petitioner is said to have filed a representation on 1.9.2006 enclosing the order of this Court dated 4.8.2006 in C.W.J.C. No. 6670/2001 and from the perusal of the same it would be clear that the claim of the petitioner now was not for the promotion in B.A. trained scale but on the post of Headmaster by claiming Ramadhar Kunwar and Mathura Singh to be his juniors who were said to have been given promotion on the post of Headmaster. The said representation has been disposed of by the impugned order dated 3.11.2006 reiterating the earlier order dated 5.6.2003 which was neither assailed by the petitioner nor considered by this Court in his earlier writ application. 6. Counsel for the petitioner would submit that not only the order passed by the authority is a cryptic order but also that subsequent development by which the petitioner’s promotion on the post of Headmaster was notified with effect from 1.2.1994 would expose hollowness of the plea of the authority as with regard to petitioner being not entitled to grant B.A. trained scale, inasmuch as no person can be promoted on the post of Headmaster unless he has been given B.A. trained scale. 7. Counsel for the State, on the other hand, in absence of the counter affidavit has only submitted that the petitioner has kept on changing his case from time to time and as a matter of fact his stale claim after almost 14 years of his retirement should not be entertained. 8. In the considered opinion of this Court the objection taken by the learned counsel for the State has some merit. Normally a writ petition should be filed soonafter the cause of action. Here in this case the petitioner had his grievance with regard to B.A. trained scale at least on the date his junior Sukrita Kumari was given such promotion as has been stated by him in his representation dated 23.7.1983. The petitioner, however, even after continuing for next 14 years in service did not move this Court for redressal of his grievance and as a matter of fact when he had filed the first writ application in the year 2001 he had already superannuated from service. In that view of the matter, this Court is quite reluctant to go into the claim of the petitioner for grant of B.A. trained scale from retrospective date especially when the authorities have found no merit in his claim of being senior to Sukrita Kumari as clearly held in the order dated 5.6.2003 and not assailed by the petitioner. 9. In that view of the matter, this Court is quite reluctant to go into the claim of the petitioner for grant of B.A. trained scale from retrospective date especially when the authorities have found no merit in his claim of being senior to Sukrita Kumari as clearly held in the order dated 5.6.2003 and not assailed by the petitioner. 9. Normally having recorded such a finding, that could have been the end of the matter, but as the respondents themselves during the pendency of this writ application have given promotion to the petitioner on the post of Headmaster by an order dated 13.11.2008, as contained in Annexure 10 to the supplementary affidavit filed on 18.8.2009, it would now emerge as a fact that some of the claim of the petitioner either with regard to his promotion in B.A. trained pay scale or on the post of Headmaster was worth consideration and that is how the authorities had ultimately notified his promotion on Notional basis with effect from 1.2.1994. This Court is not aware as to under what circumstances the petitioner was deprived of the financial benefit on the post of Headmaster save and except the pensionary relief nor this Court has been made aware as to whether the petitioner was ever granted promotion in B.A. trained pay scale. 10. It has to be also kept in mind that any and every promotion in B.A. trained pay scale on or after 1.1.1986 in view of 1993 Rules have to be considered in the light of the judgment of the Full Bench in the case of Ram Nath Prasad Singh vs. State of Bihar & ors., reported in 2009(3) PLJR 384 . Thus, if upon such exercise the claim of the petitioner for grant of B.A. trained scale would become admissible from any specific date, the petitioner may still get the relief being chased by him for the last 14 years even after his retirement. 11. Thus, if upon such exercise the claim of the petitioner for grant of B.A. trained scale would become admissible from any specific date, the petitioner may still get the relief being chased by him for the last 14 years even after his retirement. 11. Thus in absence of the counter affidavit this Court would only direct the District Programme Officer, Begusarai, the successor in office of the District Superintendent of Education, Begusarai to reconsider the case of the petitioner for grant of B.A. trained scale in the light of fresh gradation list prepared in terms of the judgment of the Full Bench in the case of Ram Nath Prasad Singh (supra) and if upon such exercise it is found that the petitioner would become entitled for grant of B.A. trained pay scale from any earlier date prior to his retirement, such promotion with prior approval of the District Education Establishment Committee should be notified. In view of delay caused by the petitioner in moving this Court for his claim of B.A. trained pay scale this Court will not be inclined to direct the authorities to make payment of any arrears of salary but then the authorities will be liable to calculate the amount of salary in promotional pay scale of B.A. trained scale for giving him the benefit of pensionary relief. In other words, pension and other retirement benefit of the petitioner would be recalculated on the basis of revised pay slip issued in terms of an order of promotion, if any, and the petitioner will be paid difference of retirement benefit. If however the authorities will find the petitioner not entitled for grant of B.A. trained scale prior to any date of 1.2.1994 on which day he was promoted on the post of Headmaster, as per order dated 13.11.2008, his entire retirement benefit would be paid in the pay scale of the Headmaster, Rs. 2000-3500 or its replacement pay scale till the date of retirement of the petitioner. 12. 2000-3500 or its replacement pay scale till the date of retirement of the petitioner. 12. It is, however, made clear that the petitioner will be entitled for financial benefit of the post of Headmaster and will not be deprived such amount because a decision for his promotion on the post of Headmaster was taken belatedly by the respondents and as such, the petitioner’s pay even if he is not granted any promotion in the B.A. trained scale from an earlier date will be fixed in the promotional pay scale of Rs. 2000-3500 and he will be entitled for arrears of salary for the period 1.2.1994 to 31.12.1997 as also consequential increase in his retirement benefit. 13. In order to expedite the matter the petitioner is given liberty to file a representation enclosing a copy of this order, whereafter the District Programme Officer, Begusarai shall place the case of the petitioner before the District Education Establishment Committee for an appropriate decision and the resultant order deciding the claim of the petitioner both with regard to B.A. trained pay scale and the Headmaster as directed above will be decided in a period of six months from the date of receipt of this order by the District Programme Officer. 14. With the aforementioned observation and direction, this application is disposed of.