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2018 DIGILAW 1499 (PAT)

Upendra Kumar Singh v. State of Bihar

2018-09-14

ASHUTOSH KUMAR, MOHIT KUMAR SHAH, MUKESH R.SHAH

body2018
Mohit Kumar Shah, J. – The aforesaid contempt applications have been filed alleging disobedience of the judgment dated 21.4.2009 passed by the learned Full Bench of this Court in LPA No. 985 of 1996 and other analogous cases. 2. The present batch of contempt petitions has been heard together with the consent of the parties inasmuch as all the petitioners of the aforesaid contempt petitions are posted as Assistant teachers/ teachers in the District of Saran at Chapra in the Government Middle School. 3. The learned counsel for the petitioners has alleged that fresh seniority list, as directed vide aforesaid judgment dated 21.04.2009 passed by the learned Full Bench, has not been prepared as far as the district of Saran at Chapra is concerned, hence, consequently promotions have also not been granted. 4. Per contra, the learned counsel for the opposite parties, referring to the show cause filed in various contempt petitions, has submitted that seniority list for the purposes of promotion, as per the judgment of the learned Full Bench dated 21.04.2009, has been prepared and steps have also been taken to grant promotion. The learned counsel for the opposite parties has also brought to the notice of this Court a judgment dated 23.7.2018 passed in CWJC No. 7116 of 2015, the petitioners whereof are the same as those in one of the aforesaid contempt petitions, bearing MJC No. 2070 of 2016 and has contended that the petitioners have already moved this Court by filing a fresh writ petition for the same and similar relief i.e. for grant of promotion/ graduate trained pay scale and monetary benefits from the due date of their entitlement as per the Bihar Nationalized Elementary Schools Teachers Promotion Rules, 2011 and the Bihar Taken Over Elementary School Teachers’ Promotion Rules, 1993, which has been repealed since 01.09.2011, hence, the petitioners of the said contempt petition have concealed the said fact of them having filed a fresh writ petition, as such the said contempt petition is not only not maintainable but amounts to over-reaching the process of the Court. 5. We have heard the learned counsel for the parties and have gone through the materials on record. 5. We have heard the learned counsel for the parties and have gone through the materials on record. We have also perused the earlier order passed by the learned Full Bench dated 14.01.2016, disposing of M.J.C. No. 1083 of 2014 (arising out of LPA No. 985 of 1996), wherein disobedience and non-compliance of the aforesaid judgment dated 21.04.2009 passed in LPA No. 985 of 1996 and other analogous cases had been alleged, however, the learned Full Bench had recorded the submissions of the learned counsel for the respondents/ opposite parties in the following words: – “ The respondents/ opposite parties have submitted that they have complied with the directions given by the order, dated 21.04.2009, passed in L.P.A. No. 985 of 1996, by a Full Bench of this Court in respect of the districts in the State of Bihar except in respect of five districts, namely, Buxar, Arwal, Kishanganj, Samastipur and Begusarai. This apart, on a query made by this Court, Mr. Pawan Kumar, learned Assistant Counsel to Government Pleader No.2, has also submitted that in respect of the said five districts, necessary steps, as mandated by the order, dated 21.04.2009, aforementioned would also be taken and the entire exercise would be completed within a period of two months from today.” 6. From the aforesaid order passed by the learned Full Bench dated 14.01.2016 passed in MJC No. 1083 of 2014, it is apparent that as far as the district of Saran at Chapra is concerned, the direction given by the learned Full Bench vide judgment dated 21.04.2009 had been complied with. Moreover, as demonstrated by the learned counsel appearing for the respondents/ opposite parties, it is clear that seniority list has already been published and promotions have also been granted, however, in some cases, the posting orders have not been issued. Lastly, we find that the aforesaid Full Bench judgment dated 21.04.2009 was passed on the basis of the rules prevailing at that point of time i.e. the Bihar Taken Over Elementary School Teachers’ Promotion Rules, 1993, however, the same has been repealed by the new enactment i.e. the Bihar Nationalized Elementary Schools Teachers Promotion Rules, 2011. Lastly, we find that the aforesaid Full Bench judgment dated 21.04.2009 was passed on the basis of the rules prevailing at that point of time i.e. the Bihar Taken Over Elementary School Teachers’ Promotion Rules, 1993, however, the same has been repealed by the new enactment i.e. the Bihar Nationalized Elementary Schools Teachers Promotion Rules, 2011. In fact, many teachers have challenged the promotions granted to various teachers by filing various writ petitions, one of them being CWJC No. 20707 of 2013 wherein a learned Single Judge of this Court, vide judgment dated 20.04.2016, had directed to prepare the seniority list and grant consequential promotion by following the Bihar Nationalized Elementary Schools Teachers Promotion Rules, 2011. Thus, we find that by efflux of time and coming into being, the new rules i.e. the Bihar Nationalized Elementary Schools Teachers Promotion Rules, 2011, the old rules i.e. the Bihar Taken Over Elementary School Teachers’ Promotion Rules, 1993 have stood repealed, hence the petitioners are required to agitate their grievances, if any, under the new rules by taking recourse to such remedies as are available under the Law. 7. Having considered the facts and circumstances, as also for the reasons mentioned herein above, we are of the view that in such cases where posting orders have not been issued, the same be issued forthwith and in cases where the petitioners are aggrieved either with the seniority list or with the promotions granted, they may take recourse to such remedies as are available under the law, including filing of fresh writ petitions, for which this Court grants liberty. 8. The present batch of contempt petitions are disposed of with the aforesaid directions and liberty.