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2013 DIGILAW 1052 (PAT)

Rama Shankar Prasad Verma v. State of Bihar

2013-08-27

MIHIR KUMAR JHA

body2013
ORDER Heard learned counsel for the parties as with regard to the following relief prayed in this writ application:– “Commanding the respondents to give the petitioners posting in the appropriate schools on account of their promotions in Graduate Trained Teachers Scale (Grade-4) in the old pay scale of Rs.5500-175-9000 and new pay scale of Rs.9300-34800 (Grade pay Rs.4600) by office order dated 28.6.2012 issued under the joint signature of the District Education Officer, Madhubani and District Programme Officer, Madhubani pursuant to the resolution of the District Elementary Teacher Promotion Committee in its meeting dated 20.3.2012 in the light of letter no. 1097 dated 9.7.2009 of the Principal Secretary, Human Resources Development Department, Govt. of Bihar issued in compliance of the judgment dated 21.4.2009 passed in LPA No. 1137/1996 by the Full Bench of the Hon’ble High Court and in view of the Bihar Elementary Teacher Promotion Rules, 1993 and further to grant them financial benefits w.e.f. from 28.6.2012 the date of issuance of promotion order.” 2. In the considered opinion of this Court from the perusal of the materials on record specially the counter affidavit filed by the respondent District Education Officer (D.E.O.), Madhubani it becomes clear that the entire mess was created by the D.E.O., Madhubani himself. It is on record that for giving promotion to the teachers in B.A. and B.Sc. trained scale a seniority list was drawn by the D.E.O., Madhubani on 23.7.2010 which at that point of time in terms of the provisions made in the Promotion Rules, 1993 was sent for approval to the Regional Deputy Director of Education (R.D.D.E.), Darbhanga. The R.D.D.E., Darbhanga having found certain discrepancies in the aforementioned seniority list dated 23.7.2010 did not accord his approval and had returned back the same with his certain observations and directions asking the D.E.O. to redraw the seniority list in the light of his own observations. It appears that thereafter a fresh seniority list was drawn by the D.E.O., Madhubani on 20.3.2012 but without getting the same approved from the R.D.D.E., Darbhanga it was sought to be acted upon by deciding the promotion to 625 teachers in the B.A. trained pay scale and 109 in B.Sc. trained pay scale on 28.6.2012. 3. It appears that thereafter a fresh seniority list was drawn by the D.E.O., Madhubani on 20.3.2012 but without getting the same approved from the R.D.D.E., Darbhanga it was sought to be acted upon by deciding the promotion to 625 teachers in the B.A. trained pay scale and 109 in B.Sc. trained pay scale on 28.6.2012. 3. By-now a new Promotion Rules, 2011 had already come into force under which R.D.D.E., Darbhanga had been vested with appellate power with regard to deciding the grievance of the aggrieved teachers as with regard to grant of B.A./ B.Sc. trained pay scale and thus, when such appeals were filed the R.D.D.E., Darbhanga had found the seniority list dated 20.3.2012 to be wholly defective and erroneous and also contrary to the provisions made in the Promotion Rules, 2011. The R.D.D.E., Darbhanga, accordingly, by an order dated 17.9.2012 had directed the D.E.O., Madhubani to prepare a fresh seniority list. In terms of the aforementioned direction of the R.D.D.E., Darbhanga the D.E.O., Madhubani had got a tentative gradation list prepared and had invited objection from the concerned teachers by an order dated 18.4.2013. It is said that 120 objections in all were received and considered before issuing a final gradation list on 27.7.2013 and on the basis of the same a fresh order of promotion of teachers in B.A. and B.Sc. trained pay scale was issued. It has to be noted that in the fresh order dated 30.7.2013 the earlier promotion given on 28.6.2012 to 625 persons were changed, inasmuch as out of them only 306 could be retained in the subsequent order dated 30.7.2013 and 93 teachers were again such persons whose promotion given earlier on 28.6.2012 had been approved but since they had retired between 28.6.2012 to 30.7.2013 direction was sought from the Director, Primary Education as to how their financial loss could be compensated because if they were given promotion with effect from 30.7.2013 they could not have been entitled for any financial benefit, whereas the other persons in the same cadre being junior to them have already been given promotion with effect from 28.6.2012. It has to be noted that in the fresh promotion order there were 61 such teachers whose name did not find place in the earlier promotion list dated 28.6.2012. 4. It has to be noted that in the fresh promotion order there were 61 such teachers whose name did not find place in the earlier promotion list dated 28.6.2012. 4. The matter in fact did not stop over there and in fact in the list of promotion given on 30.7.2013 of the total 625 teachers while 367 of them were given posting order and the cases of rest were kept pending for instructions from the Director, Primary Education, two of them had already died and it is not clear as to whether these two were even alive on 28.6.2012 when their name were included in the promotion list dated 28.6.2012. Yet another class of person, namely, 23 of them were such persons whose names were included in the promotion list dated 30.7.2013 who had already retired prior to that date i.e. in between 28.6.2012 to 30.7.2013. More over, in this list of 625 teachers 120 of them were new entrance whose names were earlier not included in the promotion order dated 28.6.2012. It is to be noted that 93 of the persons had already retired while 23 were said to have retired after 28.6.2012 to 30.7.2013. 5. Thus, in course of revising the order of promotion on 30.7.2013 there were in all 81 such persons whose earlier order of promotion dated 28.6.2012 came to be cancelled and the petitioners, 19 out of them, have moved this Court with a prayer to date back their promotion with effect from 28.6.2012 on the ground that their juniors have been allowed to get promotion with effect from 28.6.2012. The D.E.O., Madhubani, who is present in Court, has found it very difficult to oppose such prayer and his only defence is that the entire matter has been referred by him for receiving a guideline from the Director, Primary Education. The D.E.O., Madhubani in his counter affidavit has also explained that the cases of petitioners no. 5, 7, 9, 12 and 13 have been kept pending while petitioner no.11 had already retired and the promotion of petitioner no.14 has been cancelled. For rest of the petitioners, namely, petitioners no. 1 to 4, 6, 8, 10, 15 to 19 the D.E.O., Madhubani has got no answer save and except to concede that they would be entitled for promotion with effect from 28.6.2012, inasmuch as their juniors have been given such promotion with effect from 28.6.2012. 6. For rest of the petitioners, namely, petitioners no. 1 to 4, 6, 8, 10, 15 to 19 the D.E.O., Madhubani has got no answer save and except to concede that they would be entitled for promotion with effect from 28.6.2012, inasmuch as their juniors have been given such promotion with effect from 28.6.2012. 6. Considering all these facts and taking into account that the discrimination would be caused to petitioners no. 1 to 4, 6, 8, 10 and 15 to 19 who were given their promotion on 28.6.2012, and their juniors have been retained in the revised promotion order, this Court would direct for restoring their promotion with effect from 28.6.2012 for all other purposes except financial benefit as has been agreed and consented by Mr. Chittaranjan Sinha, learned Senior counsel appearing on behalf of them. 7. This Court in keeping with the undertaking given by the D.E.O., Madhubani present in Court would direct that an appropriate decision in case of petitioners no. 5, 7, 9, 12 and 13 as with regard to their promotion must be taken within a period of one month from the date of receipt of this order and if they are found entitled for such promotion the same would also date back to 28.6.2012 in the similar manner as in the case of petitioners no. 1 to 4, 6, 8, 10 and 15 to 19 without any financial benefit. 8. The case of petitioner no.11, who has already retired, will be decided in the light of the guidelines and directions received from the Director, Primary Education, to whom reference has already been made by the D.E.O., Madhubani. It is, however, clarified that if any person junior to petitioner no.11 has already been given the benefit of promotion with effect from 28.6.2012 only on the ground of his being posted in the first lot, petitioner no.11 also shall be given promotional benefit in the B.A. trained pay scale with effect from 28.6.2012 so that his salary and emoluments for the purposes of retirement benefit is calculated in the B.A. trained pays scale with effect from 28.6.2012. In other words, the petitioner no.11 shall also not get any financial benefit by way of arrears of salary and would be entitled for the retirement benefit by way of payment of his pension and gratuity on the basis of his fixation of salary in the B.A. trained pay scale with effect from 28.6.2012. 9. The case of petitioner no.14, however, for the time being is left open and he will have the liberty to assail the order of cancellation of his promotion in accordance with law. 10. At this stage, learned counsel for the interveners, Sri Suraj Narain Yadav, has sought to safeguard the interest of interveners, whose cases have been kept pending, as noted above by the District Promotion Committee. He has expressed his apprehension that if the cases of interveners are not decided, they may loose out to others who have been given promotion and posting including the petitioners, named above, with effect from 28.06.2012. In the considered opinion of this Court, such apprehension is wholly misconceived. If their cases have been kept pending any one junior to him has been given promotion with effect from 28.06.2012 such interveners would be entitled to promotion with effect from 28.06.2012 but if no junior to them has been given such promotion, they also cannot claim promotion with effect from 28.06.2012. In that case their promotion will only be prospective only from the date of order. 11. Before parting with, this Court must make it clear that the malady on account of not strictly following the Rules, namely, the Promotion Rules, 2011 and the Transfer Rules, 2006 has resulted in the aforementioned anomalous situation. Earlier the power of promotion as well as posting was vested in one and the same Committee which had also power to take decision and issue orders for posting after promotion. The things, however did not remain the same in view of 2011 Rules where role of the District Promotion Committee has only confined to only deciding the issue of promotion and, thereafter send such decision to the District Transfer Committee for making appropriate decision of transfer and posting. The things, however did not remain the same in view of 2011 Rules where role of the District Promotion Committee has only confined to only deciding the issue of promotion and, thereafter send such decision to the District Transfer Committee for making appropriate decision of transfer and posting. There is in fact, therefore, not much of difference in the constitution of the District Promotion Committee and the District Transfer Committee, in both of them the District Education Officer and the District Programme Officer (Establishment) are the Chairman and the Member Secretary but then the District Promotion Committee in terms of Promotion Rules, 2011 has much lesser power than the District Appointment and Transfer Committee. Had this basic distinction and the requirement of Promotion Rules, 2011 and the Transfer Rules, 2006 been kept in mind by the D.E.O., Madhubani the problem in hand could not have arisen. 12. It is high time that the Director, Primary Education, issues a categorical direction in form of Circular as to how a District Promotion Committee and District Appointment cum Transfer Committee can work in tandem without giving rise to unnecessary litigation as has been experienced by this Court in the recent time on account of faulty implementation of Promotion Rules, 2011. 13. This Court would not like to say any further but would expect that the Director Primary Education to come out with a firm decision within the shortest possible time but in no event later than a month from the date of receipt of this order. Such Circular at the level of the State Government would be a guideline in regulating promotion and posting of B.A trained pay scale Headmaster all over Bihar. 14. With the aforementioned observations and directions, this application is disposed of. 15. Let a copy of this order be given to the learned Govt. Pleader No.4 for its strict compliance by all concern including the Director, Primary Education.