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Jharkhand High Court · body

2013 DIGILAW 120 (JHR)

Mithleshwar Verma v. State of Jharkhand

2013-01-23

APARESH KUMAR SINGH

body2013
ORDER Heard counsel for the parties. 2. The petitioners have originally come for quashing the seniority list contained at memo no. 1645 dated 2.5.2006 issued by the Respondent No.3, District Superintendent of Education, West Singhbhum, Chaibasha as the petitioners were shown to be placed under Grade-I i.e. Matric trained scale, although according to these petitioners they were already having Graduate trained Science teacher scale of pay in Grade IV even prior to the coming into force of Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 with effect from the respective dates on which they have acquired the qualification of training. Counsel for the petitioner submits that these petitioners were appointed on vacant post of Science Teachers in the scale of 680- 965 in different middle schools. 3. Counsel for the petitioners has relied upon the orders contained at memo dated 5.5.92(Annexure-2 and 2/1), 29.9.1992(Annexure-2/2) and memo dated 3.9.1992 ( Annexure-2/3) and memo dated 9.9.1992 to support that these petitioners were granted B.Sc. trained scale w.e.f. the date on which they acquired qualification of teachers training and as per the said orders the petitioners were granted B.Sc. trained scale of Rs. 1640-2900 prevalent at the relevant point of time . These petitioners by referring to the impugned letters stated that it clearly shows that the column relating to the dates of acquisition of training of petitioner no.1 and 2 is 8.6.1987 and for petitioner no. 3,4 and 5 is 24.6.1992 and are respectively shown at serial no. 20,21,52,53,58 of the said list. During the pendency of the writ petition the respondents issued an order which are contained at Annexure-10 series in respect of petitioner no. 3 , 4 and 5 by which their grant of scale of Graduate trained Science teacher, purportedly on the basis of audit objection was held to be illegal and contrary to the Rules. 4. Counsel for the petitioners submit that by the said orders, which have been challenged pursuant to the I.A. No. 558 of 2007 being allowed by this Court, the promotion granted to these petitioners to the B.S.C Trained Scale have also been cancelled. 4. Counsel for the petitioners submit that by the said orders, which have been challenged pursuant to the I.A. No. 558 of 2007 being allowed by this Court, the promotion granted to these petitioners to the B.S.C Trained Scale have also been cancelled. Counsel for the petitioners, therefore, submitted that the impugned action of the respondents amounts to reduction in rank / scale from Grade-IV to Grade-I which petitioners were enjoying by virtue of being granted B.S.C trained Scale from the respective dates of acquisition of their qualification of such training in the year from 1987 to 1992. Counsel for the petitioners submitted that the Bihar Taken Over Elementary School Teachers Rules,1993 which have been relied upon by the respondents have been held to be prospectively applicable and in view of the Judgment rendered by this Court in the case of Arvind Bhushan Dey & other analogous cases vide judgment dated 5.12.2008 reported in 2009(1) JLJR 338 . It is submitted that the said judgment has also been followed subsequently by this Court in the case of Bijendra Kumar Sinha in C.W.J.C. No. 2115 of 2001 decided on 1.3.2012. Counsel for the petitioners, therefore, submitted that the impugned actions are wholly arbitrary, illegal and unsustainable in law. The petitioners have acquired the vested rights for having remained in B.S.C trained scale in 1987 and 1992 respectively on the basis of valid orders passed by the competent authority at the relevant point of time before coming into force of 1993 Rules which are being taken away by the impugned orders by the respondent-authorities. It is further submitted that these action amounting to reduction of rank can only be done in accordance with the provision of Article 309 to 311 under the Constitution of India. 5. Counsel for the respondents- State on the other hand submitted that the list which has been challenged annexed as Annexure-5 in the writ petition is only a tentative provisional gradation list of Primary teachers working within the District of Singhbhum. However, it is open for the petitioners and other teachers who feel aggrieved by the gradation list to file their objections with supporting papers so that their claim can be scrutinized before preparation of final list. In case the petitioners have registered their objections, the same will be considered as per the prescribed Rules. However, it is open for the petitioners and other teachers who feel aggrieved by the gradation list to file their objections with supporting papers so that their claim can be scrutinized before preparation of final list. In case the petitioners have registered their objections, the same will be considered as per the prescribed Rules. The respondents have further stated in response to the prayer for amendment in their reply to the I.A. No. 558 of 2007 that these orders have been issued pursuant to the audit objections on the basis of the decision of the District Establishment Committee and in order to comply with the said audit objections the impugned orders at Annexure 10 series have been passed. 6. I have heard counsel for the parties at length and gone through the relevant materials on record. From perusal of the impugned orders contained at Annexure-10 it appears that the respondents have come to a finding that the Rules of 1993 were applicable w.e.f. 1.1.1986 and accordingly, for being considered to be promoted under Grade-IV i.e. B.S.c Trained Scale, teachers under Grade-I i.e. Matric-Intermediate pay scale are required to remain in the said scale for a period of 8 years. These petitioners were found to have been granted promotion to the B.S.C Trained Scale without complying with the aforesaid requirement of 'Kalavadhi' (Minimum Time Rule) of 8 years and on the basis of audit objection the impugned order canceling their earlier promotion and grant of scale have been issued as also order for grant of promotion on the basis of fresh gradation list was issued. 7. The issue whether the rules of 1993 were made applicable w.e.f. 1.1.1986 or are prospective in nature were the subject matter of consideration in the case of Arvind Bhushan Dey (Supra) by this Court. In the said case petitioners had approached for grant of Graduate Trained Pay Scale w.e.f. the respective date on which they had acquired teachers training. The issue which were raised and considered by this Court have been indicated in para 7 of the said Judgment. One of the issue was whether the Rules of 1993 can be given retrospective effect from 1986 taking away the accrued, vested and legal right of the petitioners. The issue which were raised and considered by this Court have been indicated in para 7 of the said Judgment. One of the issue was whether the Rules of 1993 can be given retrospective effect from 1986 taking away the accrued, vested and legal right of the petitioners. The said question has been answered by this Court in Para 11 of the said Judgment which is quoted herein below:- “Para-11:- The argument of the learned counsel for the State that the Promotion Rules, 1993 came into effect from 1st January, 1986 and further 'Grade' means 'Scale' and the petitioners were not entitled to Graduate Science Trained Pay Scale since they achieved their qualification of training only in 1989 is misconceived and unsustainable. Learned counsel for the State has further submitted that in any case the rule will apply retrospectively since 1986. This argument is also fallacious and against the settled law”. 8. In the present case from the facts which has been brought on record it is not in dispute is that these petitioners were granted B.S.c Trained Scale prior to 1993 i.e. coming into force of the Rules, 1993 by virtue of the orders contained at Annexure-2 series. The said promotion to the B.Sc. trained Scale granted was to take effect from the respective dates on which they acquired qualification of training. Petitioners No. 1 and 2 acquired the said training in the year 1987 while the other 3 petitioners had acquired the said training in the year 1992. These petitioners on grant of such promotion continued in the the B.Sc. trained scale, thereafter, till issuance of the impugned orders and the seniority list. In these circumstance, obviously the promotion granted to these petitioners to the B.Sc. trained Pay Scale at the relevant point of time were not in teeth of any existing Rules or Circular prevalent at that time as the Rules of 1993 have been held to be prospective in nature after its notification in1993. The impugned action of the respondents, prima facie amount to reduction in rank of these petitioners which can only be done in accordance with the procedures laid under the law as stipulated under the provision of the Constitution of India. The impugned action of the respondents, prima facie amount to reduction in rank of these petitioners which can only be done in accordance with the procedures laid under the law as stipulated under the provision of the Constitution of India. The petitioners, therefore, had acquired vested right by grant of such promotion which is sought to be undone by issuance of the order vide Annexure 10 series and have been shown under Grade-I in the seniority list contained at Annexure-5. 9. In the totality of facts and circumstance discussed and the reasons indicated herein above, the impugned action of the respondents canceling the promotions of the petitioners as also showing them under Grade-I in the seniority list, therefore, cannot be sustained in law as it amounts to taking away the vested rights accrued before coming into force of the Rules of 1993. The impugned action amounting to reduction of rank / grade without following the procedures of law by way of Annexure-10 series are, accordingly quashed. So far as the list contained at Annexure-5 showing the petitioners under Grade-I, they are also held to be unsustainable, so far as they relates to the petitioners. The respondents would take steps to rectify the seniority list, accordingly. 10. The writ petition is allowed in the aforesaid terms.