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2017 DIGILAW 1780 (JHR)

Md. Sikander Ali v. State of Jharkhand

2017-10-11

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for quashing officer order dated 23.01.2007 whereby promotion given to the petitioner on the post of Head Master vide memo dated 31.08.2004 has been cancelled. 2. The facts, as delineated in the writ application, in a nutshell is that initially the petitioner was appointed as Assistant Teacher in Matric Trained Scale on 30.11.1972. Thereafter, the petitioner was given I.A trained scale on 01.04.1976 and B.A. trained scale w.e.f 1.04.1981 vide office order dated 18.11.1987. But some persons junior to the petitioner were granted B.A trained scale w.e.f 1.4.1980; the petitioner aggrieved thereof represented before the authorities concerned, who after considering the representation of the petitioner found the claim of the petitioner genuine and accordingly vide corrigendum dated 27.4.1998, it was made effective from 01.04.1980. It has further been averred that in the meantime, in pursuance of decision of the District Education Establishment Committee, some juniors, namely Mr. Umesh Prasad Yadav and Murli Manohar Mishra were promoted to the post of Head Master, and the petitioner has been denied promotion to the said post. The petitioner aggrieved thereof, represented before the respondents-authorities, on which, the District Establishment Committee recommended to grant promotion to the petitioner on the post of Head Master vide order dated 30.10.2000. Accordingly, the petitioner was promoted on the post of Head Master notionally w.e.f 01.04.1983 and posted as Head Master in Urdu Kanya Madhya Vidyalaya, Kalipara, the date from which the juniors to the petitioner have been promoted. Thereafter the petitioner was also granted senior scale of pay vide memo dated 07.04.2001 since the juniors to the petitioner have been granted. 3. But, all of a sudden, the then District Superintendent of Education issued show cause notice dated 05.07.2002 to the petitioner stating therein that under what condition, he has been posted as Head Master of Urdu Kanya Madhya Vidyalaya, Kalipara since the post of Head Master is not sanctioned for that school. In response thereof, the petitioner submitted his detailed reply annexing all relevant documents, but the respondent-D.S.E being dissatisfied with the reply passed order dated 17.08.2002 whereby promotion granted to the petitioner was cancelled. In response thereof, the petitioner submitted his detailed reply annexing all relevant documents, but the respondent-D.S.E being dissatisfied with the reply passed order dated 17.08.2002 whereby promotion granted to the petitioner was cancelled. Being aggrieved, the petitioner knocked the door of this Court by filing W.P. (S) No. 5219 of 2002, which was disposed of vide order dated 02.06.2003 with a direction to respondents to consider the case of the petitioner for promotion with effect from the date he was eligible or junior was so promoted. But, when no order was passed, the petitioner preferred Cont. Case (Civil) No. 861 of 2003 and during pendency of the contempt petition, the petitioner was granted promotion, with certain conditions. But, thereafter the respondents purposely set up an enquiry as to whether the petitioner has been given promotion under 1993 Rules or else, which resulted in issuance of memo dated 23.01.2007, whereby promotion given to the petitioner on the post of Head Master was cancelled. 4. Learned counsel for the petitioner referring to notification dated 15.09.1981 issued by Education Department, Government of Bihar submitted that for promotion in Grade-II the criteria fulfilled by the petitioner will be governed by the date on which the persons/employees were promoted in Grade-III. It has further been submitted that the stand taken by the respondents that the petitioner cannot be promoted in view of 1993 Rules has no bearing on the petitioner as 1993 Rule is made applicable w.e.f 1.1.1986 whereas the petitioner got promotion much before that. Learned counsel for the petitioner further submitted that Hon'ble Court in W.P. (S) No. 5219 of 2002 taking cognizance of the fact persons junior to the petitioner have already been promoted directed the respondents to grant promotion to the petitioner according to the seniority, which the respondents initially followed and granted promotion. But, later on only in order to harass the petitioner passed the impugned order. 5. Reiterating the averments made in the counter affidavit, learned counsel for the respondents submitted that the case of the petitioner was scrutinized by the Establishment Committee and it was found that the petitioner does not fulfil the criteria of five years in Grade IV and further he does not fulfil degree of Post Graduation, as required for promotion to the post of Head Master, hence his promotion was cancelled. Learned counsel for the respondent further submitted that since the petitioner was granted B.A. trained scale in 1988 as such for further promotion, he was to be guided by the Rules of 1993, which was not followed initially, hence, rightly impugned order has been passed. 6. From the pleadings available on records, it appears that for the first time, the petitioner approached this Court by filing C.W.J.C. No. 5219 of 2002 challenging office order dated 17th August, 2002 whereby earlier promotion granted to him to the post of Headmaster w.e.f. 1st April, 1983 was cancelled. For better appreciation, it would be apposite to refer operative portion of order dated 2nd June, 2003 passed in C.W.J.C. No. 5219 of 2002, which is quoted herein below: - "In the facts and circumstances, as the petitioner was not promoted on the recommendation of Establishment Committee, this Court is not inclined to interfere with the office order No. 1938 dated 17th August, 2002, but taking into consideration the fact that a number of juniors to petitioner have already been promoted to the higher posts of Headmaster without consideration of the case of the petitioner, the Respondents are directed to consider the case of the petitioner for promotion to the higher post of Headmaster w.e.f the date he was eligible or the juniors was so promoted, whichever is earlier." 7. In compliance thereof, the respondents-authorities granted promotion to the petitioner vide 25.08.2004 with two conditions; firstly it shall be subject to seniority and secondly, it shall abide by the decision of the Committee. From perusal of record, it appears that on the question of seniority, the matter was enquired up-to higher level and it came to surface that some juniors to him have been granted promotion. On the other hand, an enquiry was set up, in which, the enquiry officer came to the conclusion that his promotion has not been granted according to 1993 Rules. Though, the petitioner has raised finger on the finding on the enquiry committee, who gave his finding without giving him sufficient opportunity to place his case before. However, basing on the finding of the enquiry officer, impugned order dated 23.01.2007 was passed, without taking into consideration the fact that some juniors to him have been promoted and observations made to this effect by this Court in C.W.J.C. No. 5219 of 2002. 8. However, basing on the finding of the enquiry officer, impugned order dated 23.01.2007 was passed, without taking into consideration the fact that some juniors to him have been promoted and observations made to this effect by this Court in C.W.J.C. No. 5219 of 2002. 8. Apart from that, from the pleadings available on record, it further appears that 1993 Promotion Rules was made applicable w.e.f. 1.1.1986; but, taking into consideration the fact that the petitioner was promoted w.e.f. 1.4.1983 on the ground that some juniors to the petitioner was given promotion and further it is the respondents, who have came to a finding that some juniors to them have been promoted; I am of the considered view that Rules of 1993 shall not apply on the petitioner in the facts and circumstances of the case. 9. In cumulative effect of the aforesaid facts and reasons, the impugned office order dated 23.01.2007 is hereby quashed and set aside and since now the petitioner has now retired, the respondents are directed to forthwith extend the consequential benefits, to which, the petitioner is entitled to. 10. Accordingly, the writ application stands allowed. Application allowed.