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Jharkhand High Court · body

2012 DIGILAW 1711 (JHR)

Devendra Yadav v. State of Jharkhand

2012-12-11

APARESH KUMAR SINGH

body2012
Judgment 1. Heard learned counsel for the parties. The petitioner has sought for quashing of the office order containing memo no. 286 dated 25.01.2003 issued by the respondent no. 2, District Superintendent of Education, Ranchi whereby the representation of the petitioner for his promotion in B.Sc. trained scale and also for the post of Head-Master has been rejected. The petitioner has also sought for direction upon the respondents to consider the case of the petitioner for his promotion in the B.Sc trained Scale as well as for the post of Head-Master. According to the petitioner he was appointed on the post of Assistant Teacher in the I.Sc Untrained scale after being included in the panel prepared on the basis of an advertisement issued in the year 1981 and on facing interview. The petitioner had to approach the Patna High Court in C.W.J.C no. 885 of 1988 (R) for direction upon the respondents to issue appointment letter as persons junior to him had been appointed. By virtue of the order dated 11.08.1988 passed in the said case the respondents issued the appointment letter to the petitioner and thereafter, vide Annexure 7 dated 14.06.2000 the petitioner's seniority was reckoned w.e.f 12.04.1982 and it was further indicated that in future while preparation of seniority list he would be placed above persons like Lambodar Mahto and Shivshanker Jha, who had obtained lesser marks. However, in consonance with the judgment dated 11.08.1988 it was indicated that the petitioner would not be entitled for the financial benefits for the period till his date of actual joining or in the matter of fixation of Pay-scale. However, pensionary benefits should be calculated from the date of reckoning of the seniority as stated under the signature of District Superintendent of Education, Ranchi. The petitioner, thereafter, again came before this Court in C.W.J.C. No. 4343 of 2000 (R) for quashing of order of promotion of the respondent no. 5 in the said case to the post of Head-Master and for further direction upon the respondents to give appropriate scale adding the increments from 12.04.1983 and further grant of promotion on the next higher grade. That writ petition was disposed of by directing the respondents to consider and dispose of the representation of the petitioner by a reasoned and speaking order within stipulated time. That writ petition was disposed of by directing the respondents to consider and dispose of the representation of the petitioner by a reasoned and speaking order within stipulated time. The petitioner's representation has been rejected by the impugned order dated 25.01.2003 (Annexure 4) where by the claim of the petitioner for B.Sc Trained scale has been refused as also his claim for the post of Head-Master. Counsel for the petitioner has assailed the impugned order inter-alia on the grounds that he completed his graduation in the year 1987 and, thereafter, passed his post graduation examination in the year 1994 and persons like Lambodar Mahto have been granted B.Sc trained scale as well as promotion to the post of Head-Master ahead of the petitioner while denying him the same. Respondents have appeared and filed their counter affidavit. The respondents have taken stand that the petitioner was appointed in the I.Sc untrained scale at the time of appointment but completed his graduation in Arts and acquired the qualification of B.A in the year 1987. Thereafter, he obtained the post graduate qualification in the year 1994. The said Lambodar Mahto had been granted B.Sc trained scale as he subsequently, acquired B.Sc qualification and was in the stream of Science Teacher separate from stream of Arts Teachers in which the petitioner came by virtue of acquiring the qualification of B.A in 1987. Moreover, it is stated on behalf of the respondents that as per the Promotion Rules of 1993, the seniority of for promotion to B.A trained scale and B.Sc trained scale are to be prepared separately in terms of Rule 4, 5, 6, and 7 of the Bihar Taken over Elementary School Teachers Promotion Rules, 1993. According to them the petitioner's position in the seniority list is at serial no. 745 for promotion to graduate (Arts) trained scale and hence he shall be considered for promotion to graduate (Arts) trained scale based on seniority, existing vacancy and roster for the said post. It is further submitted that the said Lambodar Mahto naturally being in totally different stream of Science teacher was considered and granted promotion in B.Sc scale by virtue of acquisition of higher qualification by him then the petitioner as the said Lambodar Mahto was B.Sc untrained at the time of his appointment. It is further submitted that the said Lambodar Mahto naturally being in totally different stream of Science teacher was considered and granted promotion in B.Sc scale by virtue of acquisition of higher qualification by him then the petitioner as the said Lambodar Mahto was B.Sc untrained at the time of his appointment. The respondents therefore, have justified the issuance of impugned order by submitting that the case of petitioner would be considered as per his seniority for promotion to the B.A trained scale as per vacancy, roster position existing in the cadre. I have heard learned counsel for the parties and gone through the relevant materials on record including the impugned order. The case of the petitioner initially hinged on the grant of higher promotion to the said Lambodar Mahto on the B.Sc. trained scale and on the post of Head- Master. However, learned counsel for the petitioner fairly submits that he is not challenging the promotion of said Lambodar Mahto in the present writ application neither he has impleaded him as party- respondent as apparently the said Lambodar Mahto acquired B.Sc. trained scale on the basis of B.Sc. qualification which he obtained while the petitioner obtained B.A.(Arts) qualification in the year 1987. However, counsel for the petitioner vehemently stated that respondents ought to have considered his case for promotion for B.A. Trained scale based upon the rules applicable at the time before 1993, since he acquired B.A. Qualification in the year 1987 and subsequently, Post Graduate qualification in the year 1994. From the aforesaid facts it is clear that petitioner has made a claim for promotion to the Higher B.A. Trained scale or the post of Head Master after coming into force of 1993 Rules, referred to herein supra. The petitioner himself may have acquired B.A. Qualification in the year 1987, but he came earlier before this court in the year 2000 for considering his case for promotion on the basis that other persons have been granted promotion. The case of the petitioner is governed by the Rules of 1993 which came into vogue at the relevant point of time. As per the 1993 Rules, which has been brought on record in the counter affidavit filed on behalf of the respondents, Rule 4 stipulates the conditions for promotion. The case of the petitioner is governed by the Rules of 1993 which came into vogue at the relevant point of time. As per the 1993 Rules, which has been brought on record in the counter affidavit filed on behalf of the respondents, Rule 4 stipulates the conditions for promotion. Although, the petitioner may have fulfilled the first two criteria, but the requirement of sub rule 3 and 4 of Rule 4 i.e. existence of vacancy in the cadre in which the petitioner is claiming for promotion as also the eligibility for consideration for promotion on the basis of the seniority list, are the other criteria which at the present do not seem to have been fulfilled as per the stand of the respondents in their counter affidavit. It is apparent that for being eligible for promotion on the next higher grade under 1993 Rules, it is also incumbent that there should be a vacancy and as per the roster position of the particular category to which the person claims for promotion, there must be availability of the vacancy of the post. The petitioner's name is figuring at serial no. 745 of the seniority list as per the stand of the respondent. He shall be considered for promotion to graduate(Arts) trained scale based on the seniority existing vacancy and roster for the said post. In the background of the aforesaid facts and legal position as per the 1993 Rules discussed herein above as also the place of the petitioner in the seniority list, the order of rejection of the promotion as contained in the impugned order dated 25.1.2003(Annexure-4) cannot be found fault with. However, as respondents have already taken stand that the case of the petitioner will be considered for promotion as per the vacancy and roster position in accordance with position in the seniority list, the respondent shall proceed to consider the case of the petitioner for promotion to the B.A. Trained scale in accordance with law and the Rules, viz-a-viz other similarly situated persons falling under the zone of consideration. Learned counsel for the petitioner at this stage submits that there are enough vacancy as per the office order of the circular dated 1.11.2010 by the District Superintendent of Education, Ranchi vide memo no. 6565. Be that as it may. Learned counsel for the petitioner at this stage submits that there are enough vacancy as per the office order of the circular dated 1.11.2010 by the District Superintendent of Education, Ranchi vide memo no. 6565. Be that as it may. In the present writ application as observed herein above , I do not find fault in the impugned order and the respondent should consider the case of the petitioner in accordance with law within reasonable time as already observed along with other similarly situated persons as per the Rules of 1993. This writ petition is accordingly, disposed of with the aforesaid observation and direction.