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2017 DIGILAW 2159 (JHR)

Anna Kujur v. State Of Jharkhand

2017-12-14

ANIL KUMAR CHOUDHARY

body2017
JUDGMENT Anil Kumar Choudhary, J. - Heard learned counsel for the petitioner and learned counsel for respondent no.4. 2. This writ application has been filed with following prayers :- (i) For quashing the office order bearing Memo No.28 dated 09.01.2006 issued by the respondent no.4 whereby the promotion granted in favour of the petitioner in B.A. Trained scale has been cancelled. (ii) For direction upon the respondents to allow the petitioner to get promoted B.A. Trained scale and other reliefs. 3. The brief facts involved in this writ application are that the petitioner was appointed as an Assistant Teacher in Primary School Nadia, Lohardaga on 10.12.1987. The petitioner approached the Hon''ble Patna High Court in C.W.J.C. No.1523 of 1998(R) for grant of B.A. Trained scale which was disposed of with a direction to the respondent no.4 to consider the case of the petitioner for grant of B.A. Trained scale. The petitioner was thereafter granted pay scale of B.A. Trained in the pay scale of Rs. 5500-9000/-. The pay scale of the petitioner was fixed by the Headmaster of the concerned school. The same was verified by the Area Education Officer and approved by the Accounts Officer of the Finance Department. Later on, the respondent no.4 issued a letter directing the school of the petitioner not to pay the new pay scale to the petitioner. Thereafter, the petitioner moved before this Court in W.P.(S) No.1476 of 2002. This court disposed of the writ application and directed the District Superintendent of Education, Lohardaga to make payment to the petitioner out of the residuary amount and if for some reason the District Superintendent of Education feels constrained he was directed to pass a speaking order and to submit compliance report to the court within a period of one month from the date of the order. In pursuance of this court''s order in the said W.P.(S) No.1476 of 2002 dated 07.03.2002, the respondent No.4 approved payment of salary to the petitioner in B.A. Trained pay scale provisionally, subject to the approval of the District Education Establishment Committee. This proposal of the respondent No.4 was approved by the Deputy Commissioner, Lohardaga. Pay fixation of the petitioner was also done by the authority concerned which was also approved and verified by the District Accounts Officer, Lohardaga. This proposal of the respondent No.4 was approved by the Deputy Commissioner, Lohardaga. Pay fixation of the petitioner was also done by the authority concerned which was also approved and verified by the District Accounts Officer, Lohardaga. Bills for payment to the petitioner in B.A. Trained scale were submitted by the concerned authority to the Treasury Officer, Lohardaga and the amount has already been paid to the petitioner for which she is entitled. Thereafter, the respondent no.5 directed the respondent no.4 to realize the amount paid to the petitioner as per the specific direction of this court dated 07.03.2002 in the said W.P.(S) No.1476 of 2002. The petitioner again moved before this Court by filing W.P.(S) No.3766 of 2002 but later on the same was withdrawn. It has been averred in the writ application that Human Resources Development Department, Government of Jharkhand issued a letter bearing No.458 dated 19.02.2004 addressed to the Deputy Commissioner, Lohardaga and the District Superintendent of Education, Lohardaga which relates to the illegal promotion granted to the primary and middle school teachers by the then District Superintendent of Education, Lohardaga. It is specifically averred by the petitioner that the name of the petitioner was not appearing in the list of those teachers against whom allegation has been made for grant of illegal promotion. But in the counter affidavit filed by the respondent no.4 this fact has not been disputed. It is contended by Mr. Afaque Ahmad, the learned counsel of the petitioner that in the proceeding of District Establishment Committee meeting dated 10.12.2005 with ulterior motive and mala fide intention, the name of the petitioner has been included in the list of those teachers against whom decision relating to illegal promotion was taken. Thereafter, the respondent no.4 issued a show cause to the petitioner regarding the irregular promotion granted to her vide letter no.1125 dated 12.09.2001. The petitioner submitted her explanation contending therein that her promotion is not illegal rather the same was in pursuance of the order of this Court but it is submitted by the learned counsel for the petitioner that ignoring the facts submitted by the petitioner in the said explanation, the respondents arbitrarily issued the impugned office order bearing Memo No.28 dated 09.01.2006 thereby taking the decision to cancel the promotion given to the petitioner in B.A. trained scale. It is further submitted on behalf of the petitioner that she is entitled to the promotion and even persons junior to her like for example Sanjay Kumar Deogharia and Vinod Kumar Singh, who were appointed in the year 1989 have been given promotion in B.A. trained scale. It is pertinent to mention here that there is no specific denial of this fact averred by the petitioner in paragraph no. 21 of the writ application, by the respondents. 4. Per contra, in the counter affidavit it has been submitted that promotion given to the petitioner is against the rules and without the approval of the District Establishment Committee and as the Committee decided to cancel the same in its meeting dated 20.08.2005 and 10.12.2005 and on the basis of the said decisions of the District Establishment Committee, the impugned office order bearing Memo No.28 of 09.01.2006 has been issued hence, there is no valid reason for quashing the same. It is further averred in the counter-affidavit by the respondent no.4 that the petitioner is at Serial No.444 of the Master Gradation list of the District and she does not come within the sanctioned vacant post. 5. Mr. Afaque Ahmad, learned counsel for the petitioner submitted that since the very basis of the impugned order is the letter of the Joint Secretary of Human Resources Development Department, Government of Jharkhand, Ranchi bearing no.458 dated 19.02.2004 and as categorically averred by the petitioner that her name does not appear in the said list and which has not been specifically denied by the respondent no.4 still the promotion given to the petitioner has been cancelled, hence the act of the respondent no.4 is illegal. Further, it is submitted that the other ground for cancelling promotion given to the petitioner that many teachers who are senior to the petitioner have not been promoted is not a valid ground as though the petitioner has specifically averred, in this writ application that even persons junior to her who were appointed in the year 1989 have already been given the promotion to B.A. trained scale yet the same has remained uncontroverted. Therefore it is submitted on behalf of the petitioner that the impugned order is not sustainable in law and arbitrary and has been passed for extraneous considerations hence the same be quashed. 6. Mr. Therefore it is submitted on behalf of the petitioner that the impugned order is not sustainable in law and arbitrary and has been passed for extraneous considerations hence the same be quashed. 6. Mr. Suraj Prakash, learned counsel appearing on behalf of the respondent no.4 on the other hand defended the impugned order but conceded that there is no specific denial in the counter-affidavit either of the fact that in the said letter bearing no.458 dated 19.02.2004 of the Joint Secretary, Human Resources Development Department, Government of Jharkhand, the name of the petitioner is not appearing or the fact that teachers who are junior to the petitioner namely, Sanjay Kumar Deogharia and Vinod Kumar Singh have been promoted. 7. Having heard the learned counsel for the parties and perusal of the record I am of the considered view that there is force in the submission of the learned counsel for the petitioner that since the very basis of the impugned order is the letter of the Joint Secretary of Human Resources Development Department, Government of Jharkhand, Ranchi bearing no.458 dated 19.02.2004 and as categorically averred by the petitioner, her name does not appear in the said list hence the impugned order bearing Memo No.28 dated 09.01.2006 issued by the respondent no.4 is not sustainable in law and is liable to be quashed and set aside. 8. In view of the aforesaid facts and circumstances of the case, the impugned order bearing Memo No.28 dated 09.01.2006 issued by the respondent no.4 is quashed and set aside. The matter is remanded back to the respondent no.4 to consider the case of the petitioner for promotion to B.A. Trained scale and if the case of the petitioner stands in same or better footing than the Sanjay Kumar Deogharia and Vinod Kumar Singh who are appointed in the year 1989, the petitioner shall be promoted to the B.A. Trained scale within a period of three months from the date of this order. 9. With the aforesaid observations and directions, this writ application is allowed.