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2018 DIGILAW 207 (JHR)

Amdius Beck v. State Of Jharkhand

2018-01-24

S.N.PATHAK

body2018
JUDGMENT S. N. Pathak, J. – The petitioner has approached this Court with a prayer for a direction upon the respondents to consider the representation of the petitioner in regard to promotion against 50 % vacant posts of Subordinate Education Service (in short herein S.E.S.) (Primary Section from Lower Subordinate Education Service ( in short L.S.E.S) as Assistant Teacher of Government Basic School of Jharkhnad as per his eligibility as a Scheduled Tribe Candidate in terms of policy decision of the State Government as contained in letter No. 967 dated 20.04.1971 and other relevant provisions. Further prayer has been made to consider his case for promotion as juniors to the petitioner have been considered and granted promotion in view of order passed in W.P.(S) No. 2666/2011 and W.P.(S) No. 3209 of 2011. 2. The petitioner was appointed in Government Basic School of Jharkhand State and service condition of the petitioner like appointment/promotion/transfer etc are regulated as per statutory service rule framed under Article 309 of the Constitution of India vide Notification No. 2749 dated 11.11.1975. As per this Rule, the petitioner belongs to Divisional Cadre of Assistant Teacher of Government Basic School of Jharkhand. Presently, the petitioner is posted and working in Government Basic School, Tero, Ranchi. The petitioner is Graduate from Ranchi University and is trained from the very date of his appointment as indicated in the State Gradation list of LSES candidates and is in the matric trained scale of pay. It is the further case of the petitioner that in compliance of instruction/ direction contained in Letter No. 991 dated 16.04.2010, State Gradation List of Assistant Teachers of Government Basic School of Jharkhand was prepared by RDDE of South Chhotanagpur Division, Ranchi and forwarded to Director, Primary Education, Jharkhand vide letter No. 513 dated 10.05.2010 in which the name of the petitioner is indicated at Sl. No. 516. In the said letter, it has also been indicated that the name of the petitioner could not be included in the list prepared earlier by inadvertence. It is further stated that the name of the petitioner is indicated at Sl. No. 218 of State Gradation List of Candidates belonging to LSES Cadre circulated vide Letter No. 1011 dated 13.06.2012 for giving promotion against 50 % vacant post of S.E.S. (Primary Section). It is further stated that the name of the petitioner is indicated at Sl. No. 218 of State Gradation List of Candidates belonging to LSES Cadre circulated vide Letter No. 1011 dated 13.06.2012 for giving promotion against 50 % vacant post of S.E.S. (Primary Section). Vide letter No. 1978 dated 13.10.2012 has been issued from State Directorate of Primary Education, Jharkhand, calling for necessary required information in respect of Graduate/ Trained Candidates of LSES Cadre for consideration of their promotion from LSES Cadre against 50 % vacant posts of SES (Primary Section). 3. It is further the case of the petitioner that in compliance of the aforesaid letter dated 13.10.2012, necessary information in respect of this petitioner has been furnished from appropriate level of State Directorate of Primary Education, Jharkhand vide letter No. 3492 dated 30.07.2013 in which the name of the petitioner is indicated at Sl. No. 28. The service of the petitioner as Assistant Teacher of Government Basic School, belonging to LSES Cadre was confirmed vide Memo No. 839 dated 12.10.2012. No departmental proceeding is started or pending against the petitioner. He has also completed prescribed Kalawadhi for promotion and his services as Assistant Teacher of Government Basic School of LSES Cadre has been unblemished as per certificate issued by the respondents. It is further stated that under RTI Act, 2005, the petitioner came to know that total 714 different posts of SES (Primary Section) have been allocated to Jharkhand State under Provisions of Bihar Reorganisation Act, 2000, out of these 714 posts of SES, 357 posts become available for promotion from LSES against 50 % posts of SES (Primary Section) and now against these 357 posts, only 256 posts are filled up. Thus, 111 posts of SES (Primary Section) are vacant and available for promotion from LSES to 50 % vacant posts of SES. 4. As the case of the petitioner was not considered for promotion, the petitioner preferred representation before the respondents for considering his case for promotion against 50 % vacant post of Subordinate Education Service (S.E.S.) (Primary Section) from Assistant Teacher of Government Basic School as Scheduled Tribe Candidate belonging to LSES Cadre. But, as the concerned respondents have not considered his case, the petitioner has constrained to knock the door of this Court. 5. When the case is called out, nobody appears on behalf of the petitioner. But, as the concerned respondents have not considered his case, the petitioner has constrained to knock the door of this Court. 5. When the case is called out, nobody appears on behalf of the petitioner. It is the specific case of the petitioner as enumerated in the writ petition is that the persons, having obtained graduation degree from Deoghar Vidhyapeeth, have been considered and granted promotion but subsequently, their promotions were cancelled and as such, if the cases of those persons are not considered, the case of the petitioner is likely to be considered on those vacant posts. Further averment has been made that petitioner''s case is squarely covered by the order passed in W.P.(S) No. 2666/2011 and W.P.(S) No. 3209 of 2011 and as such, a direction be given to the respondents to pass similar order for consideration of promotion of the petitioner as still seats are vacant and as such, in view of the prescribed rule, the case of the petitioner should be considered. 6. Per contra, counter-affidavit has been filed. Mrs. Nilam Tiwary, learned counsel appearing on behalf of the respondents draws the attention of the Court towards paragraph Nos. 13 to 16 of the counter-affidavit and argues that the Department of School Education and Literacy under Jharkhand Government has issued the notification vide Memo No. 1405 dated 18.07.2014. As per the provision as mentioned in paragraph 5 of Chapter 2 of the aforesaid notification, only 10 % of the total strength of subordinate education service have to be considered for promotion from lower subordinate education service to the subordinate education service cadre. It is further stated that the respondents have granted promotion to one Shiv Prasad Singh Munda belonging to Scheduled Caste Category, whose name appears at Sr. No. 187 of the list, whereas the name of the petitioner appears at Sr. No. 218 of the list and no juniors to the petitioner has been promoted and the claim of the petitioner on this score is totally baseless and the petitioner could not be considered for promotion. Learned counsel further argues that merely because posts are vacant, right does not accrued to the petitioner to be considered for promotion as the same has to be considered in accordance with law. The petitioner does not fall within the zone of consideration and as such, there is no illegality in the non-consideration of the case of the petitioner. Learned counsel further argues that merely because posts are vacant, right does not accrued to the petitioner to be considered for promotion as the same has to be considered in accordance with law. The petitioner does not fall within the zone of consideration and as such, there is no illegality in the non-consideration of the case of the petitioner. 7. Be that as it may, having gone through the submissions of the learned counsel for the respondent and averments made in the writ petition and after perusal of the documents on records, this Court is of the considered view that no case is made out for promotion against 50 % vacant posts of Subordinate Education Service (S.E.S.) (Primary Section) from Lower Subordinate Education Service ( L.S.E.S) as Assistant Teacher of Government Basic School of Jharkhnad as per the prevalent Rules of Department of School Education and Literacy under Jharkhand Government vide notification dated 18.07.2014 and in view of the provisions as mentioned in paragraph 5 of Chapter 2 of the aforesaid notification, only 10 % of the total strength of Subordinate Education Service have to be considered for promotion from Lower Subordinate Education Service to the Subordinate Education Service Cadre. The petitioner is relying on the rules as framed by the State of Bihar and State of Jharkhand has come with its Rule dated 18.07.2014. The case of the petitioner cannot be considered in view of that Rule. As a cumulative effect of the aforesaid observations, I do not find any illegality or infirmity in non-consideration of the case of the petitioner for promotion. 8. There is no merit in the instant case. Resultantly, the writ petition merits dismissal and is hereby dismissed.