Patna High Court
Raghvendra Sharma And Ors vs The State Of Bihar And Ors on 12 September, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15610 of 2018
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1. Raghvendra Sharma Son of Late Chote Lal Singh Resident of Village -
Haripur Kadrabad, Police Station - Bachwara, District - Begusarai, At
present posted and working as Head Master in Govt. Middle School Navtol,
Block - Mansurchak, District - Begusarai.
2. Md. Abul Khair Ansari Son of Late Md. Shoaib Ansari Resident of Village -
Alamchak, Police Station - Mansurchak, District - Begusarai, At present
posted and working as Head Master in Govt. Middle School Mansurchak,
Block - Mansurchak, District - Begusarai.
3. Ashok Kumar Kamal Son of Baishakhi Paswan Resident of Village - Teliya
Pokhar, Police Station - Town Thana, District - Begusarai, At present posted
and working as Head Master in Govt. Middle School Collegiate, Block -
Begusarai, District - Begusarai.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Education Department, Government of Bihar,
Patna.
3. The Principal Secretary, Finance Department, Government of Bihar, Patna.
4. The Director, Primary Education, Bihar, Patna.
5. The Regional Deputy Director of Education, Munger Division, Munger.
6. The District Education Officer, Begusarai.
7. The District Programme Officer Establishment, Begusarai.
8. The Block Education Officer, Mansurchak, District - Begusarai.
9. The Block Education Officer, Begusarai, District - Begusarai.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Umesh Kumar Mishra, Adv.
For the Respondent/s : Mr. Mrigendra Kumar, AC to GP XX
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CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH
SHARMA
ORAL JUDGMENT
Date : 12-09-2022
Heard the parties.
2. The petitioners have preferred this petition praying for
granting them promotion in graduate trained pay scale as well in
Patna High Court CWJC No.15610 of 2018 dt.12-09-2022
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the scale of Headmaster from the date of entitlement along with
the monetary benefits.
3. Learned counsel for the petitioners submits that
before promulgation of Bihar Elementary Schools Teachers
Promotion Rules, 2011, the Bihar Taken Over Elementary Schools
Teachers Promotion Rules 1993 (hereinafter referred to as,
"Promotion Rules of 1993") were in force. A protracted litigation
continued before this Court with regard to method and manner in
which seniority list is to be prepared. Considering that there were
different conflicting verdicts of Division Bench, the matter was
referred to Larger Bench and the Full Bench of this Court vide its
judgment dated 21.04.2009 held that the seniority list of science
teachers and the arts teachers was to be prepared separately in
accordance with the then existing Promotion Rules of 1993. It
further held that the draft Rules of 2006 could not be acted upon
for making promotions for earlier vacancies.
4. Learned counsel for the petitioners submits that
directions were issued by the Full Bench to prepare the list and
make promotions within three months. However, the respondents
did not conduct said exercise and it resulted in denial of promotion
to the petitioners. Learned counsel submits that the new
promotion Rules 2011 were brought into force and the petitioners
were awarded promotion under the 2012 Rules prospectively vide
order dated 12.11.2012. Learned counsel submits that the
Patna High Court CWJC No.15610 of 2018 dt.12-09-2022
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petitioners were entitled to retrospective promotion from the date
the vacancy occurred in terms of the Promotion Rules of 1993.
Learned counsel submits that in another case, a Coordinate Bench
of this Court has held that even those who have retired would be
entitled for the benefit of promotion under the Promotion Rules of
1993.
5. Per contra learned counsel appearing for the State has
taken this Court to the counter affidavit filed on their behalf and
submits that after the direction issued by the Full Bench, dated
21.04.2009, the Director issued directives on 09.07.2009 and further made clarification vide order dated 04.01.2010 and as per the order passed by the Director, dated 04.01.2010, it was specifically directed that the promotion would be a one time promotion and there shall be no retrospective promotion as it was not to be granted from the retrospective date and accordingly the exercise was conducted under the new Rules of 2011 and promotion was granted to the petitioners.
6. I have considered the submissions noted above.
7. The Full Bench in Ramnath Prasad Singh Vrs. State of Bihar & Ors., reported in 2009 (3) P.L.J.R., 384, considered the provisions of the Promotion Rules of 1993 with respect to referred question and held as under :
"8. The learned Advocate General pointed out that in Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 4/12 view of the direction of the Division Bench, a consolidated list was prepared without any distinction between Arts and Science teachers and fresh rules were framed (but not implemented) only because of the directions of the Division Bench in Naresh Jha's case (supra) and due to urgency of the matter but subject to the orders of the Court in these cases. In view of the interim order, it has not been finalised. We are of the view that the direction of the Division Bench in Naresh Jha's case (supra), without setting aside the valid Promotion Rules 1993 was not correct. We overrule the same. It is for the Government to make separate lists of qualified teachers for both Science and Arts subjects as per the quota/unit fixed for promotion to Grade 4 and promotions can be made separately depending upon quota fixed for promotion among the Arts and Science teachers. But, after Grade 4, a common seniority list is to be prepared for promotion, so that both Arts and Science teachers could become Headmasters based on such common seniority list as prescribed in the Promotion Rules 1993.
9. In the light of the above, we are of the view that a fresh seniority list has to be prepared in accordance with the Promotion Rules 1993 and the joint seniority list prepared in accordance with the directions of the Division Bench in Naresh Jha's case (supra) and the draft Rules created in 2006 subject to the approval of this Court with regard to promotions cannot be acted upon. We direct the Government to prepare a fresh list and make consequential promotions and transfers according to law. No separate orders are necessary. In view of the Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 5/12 interim order of status quo granted, promotions were not made for the last 10 years. In the above circumstances, we direct the Government to make separate seniority lists for promotion to Grade 4 for Arts and Science teachers afresh and thereafter to prepare a consolidated list for promotion as expeditiously as possible. The draft list should be published within three months from the date of receipt of a copy of this judgment and the final seniority list shall be thereafter published and promotions and transfers made in accordance with law."
8. In terms of above order, the respondents were required to conduct the exercise. However, the Director, Primary Education, Bihar, issued an order highlighting several points on 04.01.2010 as under :
1- e/; fo|ky;ksa ds Lukrd izf"kf{kr osrueku ,oa iz/kkuk/;kid ds inksa ij Hkwry{kh izHkko ls izksUufr ns; ugha gSA 2- ;fn fdlh f"k{kd }kjk ,d gh vof/k esa fo|ky; esa mifLFkr jgdj osru izkIr fd;k x;k gS vkSj mlh vof/k esa fdlh egkfo|ky; ds fu;fer Nk= ds :i esa Lukrd@Lukjrdksrj dh fMxzh izkIr dh x;h gS rks ,sls f"k{kdksa dh fMxzh dks voS/k ekurs gq, mUgsa izksUufr ns; ugha gksxhA lkFk gh ,sls ekeys izdk"k esa vkus ij lacaf/kr f"k{kdksa ds fo:) vuq"kklfud dkjZokbZ dh tk;A 3- ftl fdlh fMxzh vFkok mikf/k dks fcgkj ljdkj ds dkfeZd ,oa iz"kklfud lq/kkj foHkkx vFkok ekuo lalk/ku fodkl foHkkx }kjk fu;qfDr ,oa izksUufr gsrq lerqY;rk iznku ugha dh x;h gS] oSlh fMxzh vFkok mikf/k ds vk/kkj ij izksUufr ns; ugha gSA 4- Lukrd izf"kf{kr osrueku ,oa iz/kkuk/;kid ds in ij izksUufr gsrq izksUufr ds fy, fu/kkZfjr vkj{k.k jksLVj dk ikyu fd;k tk;A Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 6/12
9. The respondents are completely silent as to why they did not conduct an exercise in terms of the direction issued on 04.01.2010 by the Full Bench (supra). It appears that fresh Rules were framed for promotion in the year 2011 and under the said Rules of 2011 the concept of retrospective promotion was done-
away meaning thereby the provision for determination of vacancies for promotion each year on first of April was done-away with and it was directed that the promotion would be effective from the date the same is notified or from the date financial benefit is granted.
10. Taking the umbrage of the subsequent Rules of 2011, promotions have been granted to the petitioners from the date of the same were notified. The the grievance has therefore been raised by the petitioners stating that granting them promotion from the date of coming into force of the Rules 2011 could not in any manner deprive them retrospective promotion under the Promotion Rules of 1993 against the vacancies existing and the vacancies of year earlier.
11. This Court is pained to observe the act of the State Government in not conducting the exercise of promotion under the Promotion Rules of 1993 as contemptuous and is an attempt to flout the orders of this Court passed by the Full Bench. However, Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 7/12 this Court would not further delve on the aspect after so many years. Suffice it to state that the State Government and its authorities can not absolve themselves from complying the Court's order even after lapse of time.
12. A look at the Promotion Rules of 1993 show that as per Rules 6 and 7, the respondents were required to determine on first of April of each year the number of post available for promotion. The said exercise is required to be done by the Establishment Committee and as per Rule 7, seniority list was to be prepared from grade III as well as grade IV and other grades. As per Rule 12 the pay was to be fixed accordingly in terms of Rule 22(i)(a)(1) of the Fundamental Rules. It would be appropriate to quote the Rules 6 and 7 the Promotion Rules of 1993:
"6. Availability of Posts - Establishment Committee shall calculate for each year the vacant posts as on 1 st April of that year for promotion. The Establishment Committee shall also calculate the vacant posts, for S.C., S.T. and General category according to the rules for reservation:
Provided that - (1) Promotion from Grade-1 to Grade-2 from Grade-4 to Grade-5 and from Grade-7 to Grade-8, minimum 12 years of satisfactory service shall be necessary in each of Grade-1, Grade-4 and Grade-7 respectively and there shall be no restriction of availability of posts and of reservation rules.
Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 8/12 (2) For promotion from Grade-2 to Grade-3 and from Grade-5 to Grade-6, 20% posts of the total number of teachers working in Grade-2 and Grade-5 respectively on 31st March, shall be available.
(3) For promotion to Grade-4 to Grade-7, posts sanctioned by State Government for different districts shall be available.
7. Draft of seniority list for promotion - By the end of the month of January of each year, the draft of the following seniority list, based on the position that existed on 31st of December of the previous year, shall be prepared according to the standard laid down in rule-8 by District Superintendent of Education in the following manner:
(1) Seniority list no. 1 (which shall be for promotion to Grade-3) - In this list, firstly those trained graduate teachers who have completed minimum 12 years of service in Grade-2, shall be placed; thereafter those matric trained teachers, who have completed minimum 18 years of service in Grade-2 shall be placed; (2) Seniority list no. 2 (which shall be for promotion to Grade-4) - (I) This list shall be prepared separately for Arts and Science teachers.
(ii) The teachers shall be placed in this list in the following order:
(a) Trained Graduate working in Grade-3;
(b) Trained Graduate working in Grade-2;
(c) Trained Graduate working in Grade-1 and Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 9/12 who have completed minimum 8 years of service in Grade-1.
(3) Seniority list no. 3 (which shall be for promotion to Grade-6) - (I) This list shall not be prepared separately for Arts and Science teachers but for both a consolidated list shall be prepared.
(ii) In this list, firstly those trained Post-Graduate teachers who have completed minimum 12 years of service in Grade-5 shall be placed. Thereafter those Trained Graduate teachers who have completed 18 years of service in Grade-5 shall be placed.
(4) Seniority list no. 4 (which shall be for promotion to Grade - 7 and to Grade -8) -
(I) This list shall not be prepared separately for Arts and Science teachers but for both a consolidated list shall be prepared,
(ii) In this list teachers shall be placed in the following order:
(a) Trained Post-Graduate teachers working in Grade-6;
(b) Trained Post-Graduate teachers working in Grade-5;
(c) Post-Graduate trained teachers working in Grade-4 and who have completed minimum 5 years of service in Grade-4 :
Provided Graduate Trained teachers of SC and ST category shall be placed after Post-Graduate teachers if Post-Graduate teachers of these categories are not available upto 31st December, 1994;
Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 10/12
(iii) From this list teachers working in Grade-4 and Grade-5 may be promoted to Grade - 7 and teachers working in Grade- 6 may be promoted direct to Grade - 8.
(1) The initial pay of a Government servant who is appointed to a post on a timescale of pay is regulated as follows :
FR 22(1)(a)(1) : The initial pay of a Government servant who is appointed to a post on a timescale of pay is regulated as follows :
(a)(1) Where a Government servant holding a post, other than tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity as the case may be subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty-five only, whichever is more.
13. Keeping in view of above, the concept of retrospective promotion which has been directed to be done-away by the letter of the Director, dated 04.01.2010, is found to be unjustified and Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 11/12 contrary to the Promotions Rules of 1993. A person who was entitled to be promoted in the year 2007 will have to be considered against the vacancy of 2007, his qualification and eligibility would also be looked for that year. If he was to be denied promotion for any reason, then he should be considered in the next year as per his seniority. Thus, exercise has to be done by the Committee for different years from the year onwards when promotions were not granted.
14. In the circumstances as above, this Court directs the respondents to conduct an exercise after preparing the seniority list as directed by the Full Bench (supra) positively within a period of six months from today. All the districts will conduct an exercise of determination of vacancies for each year up to 2011, i.e., the date when the new Rules came into force and also prepare seniority list for each year as directed by the Full Bench. Thereafter eligibility list for each year shall be prepared based on the number of persons available under the zone of consideration and the promotion shall be accordingly granted. The pay fixation would be done accordingly, this would be applicable even to those teachers who have attained superannuation as held by the Coordinate Bench in the case of Rana Shankar Prasad & Ors. Vrs. State of Bihar & Ors. (C.W.J.C. No. 22608 of 2014) decided on 13.09.2018, and passed orders accordingly. It is made clear that the promotion so granted will result in notional benefits from an earlier year and actual Patna High Court CWJC No.15610 of 2018 dt.12-09-2022 12/12 benefits shall be paid after fixation from the date actual promotions have been made. In cases where the person has attained superannuation actual retiral benefits would be given along with arrears.
15. This writ petition is allowed.
16. List this case after six months for submitting compliance report.
(Sanjeev Prakash Sharma, J) Shamshad/-
AFR/NAFR AFR CAV DATE NA Uploading Date 13.10.2022 Transmission Date NA