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2019 DIGILAW 2018 (JHR)

Md. Fidaur Rahman v. State of Jharkhand

2019-12-16

NARAYAN PRASAD, RAVI RANJAN

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ORDER : This intra-court appeal has been filed under Clause-10 of the letters patent appeal against the order/decision of the learned Single Judge dated 22.06.2018 passed in W.P.(S) No.307 of 2006, whereby and whereunder, the learned Single Judge has refused to interfere with the decision taken by the authority by dismissing the writ petition. 2. It requires to refer herein the brief factual aspect which is necessary to consider the rival submissions of the parties and appreciating the decision of the learned Single Judge. The appellants have been appointed as Assistant Teachers (Science) in the year 1981. After passing B.Sc. Examination sometime in the year 1979, they have possessed higher qualification of M.Sc. and after being appointed, have worked to the satisfaction of all concerned. The appellants have also passed B.Ed. Examination and become eligible to get the B.Sc. trained scale, however, the same has been extended w.e.f. 24.06.1987 and 06.06.1987 but by virtue of passing of an order dated 22.12.2005, the same has been shifted to 01.04.1995 with a direction to recover the excess amount paid to them as also to quash the order dated 17.07.2006, by which, the appellants/writ petitioners have been made Junior to 12 other teachers. 3. Mr. Indrajit Sinha, learned counsel appearing for the writ petitioners/appellant herein has assailed the impugned order, inter-alia on the ground that even though the appellant/writ petitioners, are eligible as per the service rules and as such, the authorities have granted B.Sc. trained scale w.e.f. 24.06.1987 and 06.06.1987 but subsequently shifting of the said date to 01.04.1995, is absolutely improper and illegal and hence, not sustainable in the eye of Law. 4. Per contra, Mr. Mukesh Kr. Sinha, learned Sr. SC-III appearing for the State, has submitted that there is no infirmity in the impugned order as because, there is no dispute about the fact and the legal position that the petitioners are the B.Sc. trained and also fulfilling the eligibility criteria but the benefit of B.Sc. trained scale is to be granted, subject to fulfilment of condition for promotion as provided under the Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 (hereinafter referred to as the Rules, 1993), the condition also includes the availability of vacancies and the basis of seniority and as such, on scrutiny, when it has been found by the respondent authorities that as on 24.06.1987 and 06.06.1987, there were no vacancy of B.Sc. trained scale rather the vacancy became available only on 01.04.1995, therefore, earlier decision of granting B.Sc. trained scale from 24.06.1987 and 06.06.1987 has been modified by shifting it to 01.04.1995 and hence, there is no illegality in the said decision. 5. Learned Single Judge after taking into consideration the provision of Rules, 1993 has rightly dismissed the writ petition. 6. This Court after having heard the learned counsel for the parties and after going across the pleading made in the writ petition, deem it fit and proper first to deal with the provision of Rules, 1993. The said rule is the part of the record before the writ Court as also in the present appeal, the same has been enacted under the proviso to Article 309 of the Constitution of India and as such, the said rule is having the statutory force. Under Rule 4, the conditions for promotions has been provided which reads as hereunder:- “4. Conditions for promotion.-The promotion of a teacher may only be considered on fulfilling the following:- (1) He fulfills the minimum prescribed period of service for promotion; (2) He possesses minimum prescribed educational qualification and training for promotion; (3) There must be a vacancy meant for the category to which he belongs S.C., S.T. or general according to latest rules regarding reservation; (4) He must be eligible for consideration for promotion on the basis of the Seniority list against the available vacancies; (5) His service is satisfactory.” Rule 5 provides minimum educational and training qualifications and minimum tenure of service which reads as hereunder:- “5. Minimum educational and training qualifications and minimum tenure of service.- (1) For promotion to Grade-3-Trained graduate and minimum 12 years of service in grade-2 or Matric trained and minimum 18 years of service in Grade-2 (2) For promotion to Grade-4.-Trained graduate and minimum 8 years of service in Grade-1 in the event of promotion from grade-1 to grade-4 in case of non availability of teachers in grade-3 and grade-2. (3) For promotion to Grade-6.-Trained post-graduate and minimum 12 years of service in Grade-5, or trained graduate and minimum 18 years of service in Grade-5. (4) For promotion to Grade-7.-Trained post-graduate, in the event of promotion from grade-4 to grade-7 in case of non-availability of teachers in Grade-6 and Grade-5 minimum five years of service in grade-5. (3) For promotion to Grade-6.-Trained post-graduate and minimum 12 years of service in Grade-5, or trained graduate and minimum 18 years of service in Grade-5. (4) For promotion to Grade-7.-Trained post-graduate, in the event of promotion from grade-4 to grade-7 in case of non-availability of teachers in Grade-6 and Grade-5 minimum five years of service in grade-5. Provided trained graduate teachers belonging to S.C. and S.T. may also be considered for promotion to Grade-7 till 31st March, 1995, if trained post-graduate teachers of these categories are not available.” 7. It is evident from the provision of Rule 4 which stipulates about the conditions for promotion of a teacher which may only be considered on fulfilling the following:- (1) He fulfills the minimum service of promotion; (2) He possesses minimum educational qualification and training for promotion; (3) There must be a vacancy meant for the category to which he belongs SC/ST or general according to latest rules regarding reservation; (4) He must be eligible for consideration for promotion on the basis of the Seniority list against the available vacancies; (5) His service is satisfactory. It is further evident that condition no.2 as contained under Rule 4 which provides about possessing minimum educational qualification and training for promotion, which has been provided under the provision of Rule 5 i.e., “Minimum educational and training qualifications and minimum tenure of service” as quoted above. This suggests that having minimum educational and training qualification, is one of the condition for promotion as per the provision of Rule 4 and apart from that, the teacher is also required to fulfil the other four conditions i.e., minimum prescribed period of service for promotion; there must be a vacancy meant for the category; he must be eligible for consideration for promotion on the basis of the Seniority list against the available vacancies and his service is satisfactory. 8. Learned counsel appearing for the appellant/writ petitioners, has emphatically argued that they are possessing the minimum educational and training qualifications and as such, they are eligible to be granted promotion to the B.Sc. trained scale and accordingly they have been granted promotion w.e.f. 24.06.1987 and 06.06.1987 but the said submission/ground has been discarded by the learned Single Judge by showing no interference in the impugned decision taken by the authority in compliance to the order passed by the writ Court in W.P.(S) No.5222 of 2005. 9. trained scale and accordingly they have been granted promotion w.e.f. 24.06.1987 and 06.06.1987 but the said submission/ground has been discarded by the learned Single Judge by showing no interference in the impugned decision taken by the authority in compliance to the order passed by the writ Court in W.P.(S) No.5222 of 2005. 9. The Learned Single Judge while dismissing the writ petition, has found no reason to interfere with the order passed by the respondent authorities, it is for the reason that any appointment and promotion are to be given on the basis of the provision of Rule in vogue and if any appointment or promotion made contrary to the Rule, the same will dehors the rule and hence, the same would not be sustainable in the eye of Law. 10. It is also equally settled that right to promotion, is not a fundamental right rather right of consideration for promotion is the fundamental right and the consideration for promotion depends upon the fulfilment of the conditions for promotion and not only possessing of the minimum educational qualification. 11. It is evident from the provision of Rule 5 which contains five conditions for promotion, one of the conditions is to possess minimum educational and training qualification which clarifies the position of Law that merely because an employee or teacher is possessing minimum educational and training qualifications, will not automatically be promoted rather will be said fit to be considered for promotion, subject to fulfilment of the other condition as provided under Rule 4. Rule 4, apart from other conditions also contains the condition about the availability of vacancy as also the seniority. 12. Learned counsel for the writ petitioners, has not disputed the factual position about non-availability of the vacancies which is one of the conditions for promotion to that effect, as would appear from annexure9 which is the representation filed by the writ petitioners, whereby and whereunder, it has specifically been stated that out of 123 teachers in the Gradation list prepared in the year 1987, teachers up to serial no.116 have been granted B.Sc. trained scale and only seven teachers whose names are contained in serial nos.117 to 123 have not been granted promotion and admittedly, the name of the petitioners appeared at serial no.122 and 123 in the said Gradation list. trained scale and only seven teachers whose names are contained in serial nos.117 to 123 have not been granted promotion and admittedly, the name of the petitioners appeared at serial no.122 and 123 in the said Gradation list. This specific stand goes to suggest that it is the case of the writ petitioners that the seniority has not been ignored rather up to serial no.116 from the Gradation list, the promotions have been granted and since the name of the petitioners stand at serial no.122 and 123 and therefore, there is no question of ignoring the case of the petitioners giving go-by to their position in the Gradation list. 13. Further, the learned Single Judge on the basis of the pleading made before the writ Court, has come to the finding that the vacancies for B.Sc. trained scale fell vacant from 01.04.1995 and if for this reason, the date of promotion of the petitioners have been shifted to 01.04.1995 from 24.06.1987 and 06.06.1987, it cannot be said to suffer from violation of the Rules, 1993. 14. This Court, in view of the entirety of the facts and circumstance as per the discussion made hereinabove, is of the view that showing non-inference with the impugned decision, the learned Single Judge has committed no error. 15. In the result, this appeal fails and it is dismissed. 16. I.A. No.11260 of 2018 stands disposed of.