Jharkhand High Court
Jai Prakash Narayan Sharma Aged About 60 ... vs State Of Jharkhand on 14 September, 2020
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.2262 of 2019
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1. Jai Prakash Narayan Sharma aged about 60 years, son of Sri Uma Shankar Sharma, resident of B-1, Topovan Apartment, Nivaranpur, P.O. Doranda, P.S. Chutia, District Ranchi, Jharkhand
2. Ramashish Pandit aged about 57 years, son of Late Tulsi Pandit, resident of Gharonda Apartment, Dangra Toli Chowk, P.O. + P.S. Lalpur, District Ranchi, Jharkhand
3. Ram Prasad Mahto aged about 59 years, son of Late Surya Kant Mahto, resident of Village Dabar Bahal, P.O. Dudhigazar, P.S. Chas, District Bokaro, Jharkhand
4. Hakimuddin Ansari aged about 57 years, son of Late Shaikh Nazir Ali, resident of 1-B, Azeem Enclave, New Parastoli, P.O. Doranda, P.S. Doranda, District Ranchi, Jharkhand .... .... .... Petitioners Versus
1. State of Jharkhand
2. The Principal Secretary, Department of Planning and Finance, Government of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, District Ranchi
3. The Principal Secretary, Department of School Education and Literacy, Government of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, District Ranchi
4. The Director, Primary Education, Department of School Education and Literacy, Government of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, District Ranchi .... .... .... Respondents CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. Rajendra Krishna, Advocate Mr. Amit Sinha, Advocate Ms. Neeta Krishna, Advocate For the Respondents-State : Mr. Mithilesh Singh, G.A. IV
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09/14.09.2020 Heard Mr. Rajendra Krishna, learned counsel for the petitioners and Mr. Mithilesh Singh, learned counsel for respondents-State.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The petitioners have preferred this writ petition for quashing of order dated 01.02.2019 contained in Annexure-15 by which respondents have denied the claim of the petitioners for payment of pay scale of Rs.8000-13,500/- w.e.f. 15.11.2000 which is upgraded pay scale of Rs.6500- 10,500/-.
4. The case of the petitioners is that they belong to officers of Sub-
2ordinate Education Service and their next promotional post was State Education Service Class-II. The minimum qualification period is eight years and all the petitioners have completed more than twelve years in Sub-ordinate service and they are entitled for grant of promotion in State Education Service Class-II. By way of Rule 41 of Bihar Education Code, the petitioners have been granted pay scale of Rs.6500-10,500/- as per 1st ACP scheme which was pay scale of the then State Education Service Class-II. The pay scale of Rs.6500-10,500/- has been upgraded to Rs.8000- 13,500/- by resolution memo no.3589 dated 17.12.2007 and therefore, the petitioners are also entitled to pay scale of Rs.8000-13,500/-. The petitioners have earlier moved in W.P.(S) No.1683 of 2010 which was disposed of on 24.11.2017 with a direction to respondent nos.2 and 3 to take a decision on the representation of petitioners and pass detailed reasoned order considering the resolution of Finance Department dated 17.12.2007 and also order dated 05.12.2006 passed in W.P.(S) No.6350 of 2006. This order was challenged before Division Bench in L.P.A. No.23 of 2018 and the Division Bench of this Court modified the order of Single Judge only to the effect that without being influenced by the order passed by learned Single Judge, independently on the basis of law, rules, regulations and evidence the decision shall be taken upon the representation of the original petitioner. Pursuant to that, the petitioners filed representation and by impugned order dated 01.02.2019, the claim of the petitioners has been rejected. Now in second round litigation, the impugned order dated 01.02.2019 has been challenged.
5. Mr. Rajendra Krishna, learned counsel for the petitioners assailed the impugned order on the ground that the Clause 3(X) of the resolution dated 14.08.2002 has wrongly been interpreted in the case of the petitioners. He further submits that the resolution no.3589 dated 17.12.2007 has also wrongly been interpreted. To substantiate his argument, he submits that by Amendment Act, 1963, Rule 776 of Education Code has been affirmed by way of proviso 309 of Constitution of India which was superseded by the rules published by the Education Department earlier. He submits that source of recruitment is disclosed in Rule 3 of Amendment Act, 1963. By way of referring Rule 3 (c) he submits that promotion in accordance with the rules in Part IV is prescribed. For ready reference, Rule 3 is quoted hereinbelow:-
33. Source of recruitment :- The Bihar Education Service (Class I) and the Bihar Education Service (Class II) shall be recruited -
a. By direct recruitment through combined competitive examination in accordance with the Rules in Part II, and/or b. By open advertisement in accordance with the rules in Part III and/or c. By promotion in accordance with the rules in Part IV, and/or, d. By direct recruitment (special recruitment) in accordance with the rules in Part V.
6. He further refers to Rule 4 and by way of referring Rule 4(2)(iii), he submits that for promotion of officers of the Upper Division of the Subordinate Educational Service (inspection and allied branch) in accordance with rules in Part IV, 50% of the posts are prescribed. For sake of convenience, Rule 4(2) is quoted hereinbelow:-
(2) Appointment to the posts of District Superintendent of Education, Sub Divisional Education Officer, Principal, Primary Teacher's Education College, District Inspectors of Schools and allied posts of inspecting and administrative nature shall be made as follows:-
(i) By direct recruitment in accordance with the rules in Part II- in 30% of posts
(ii) By open advertisement in accordance with the rules in Part III- in 50% of the posts
(iii) By promotion of officers of the Upper Division of the Subordinate Educational Service (inspection and allied branch) in accordance with the rules in Part IV
7. He draws the attention of this Court towards Part IV of the rule which is indicated in Rule 4 and by way of referring Rule 39 he submits that in rules 4(b) and 4(c), promotion to Class II officers of Bihar Educational Service is prescribed. Rule 39 is quoted hereinbelow:-
39. For promotion to Class II of the Bihar Educational Service, exempting the branches mentioned in Appendix 'C' cases of all eligible officers of Subordinate Educational Service shall be considered in accordance with rules 4(b) and 4(c).
8. He refers to Rule 41 of Bihar Education Code in which promotion to next higher rank has been disclosed. Rule 41 is quoted hereinbelow:-
41. An officer must have rendered the following minimum qualifying period of service for being eligible for promotion to the next higher rank :-
Posts Higher Posts Minimum qualifying
period of service
(I) Sub ordinate Education Service (U.D.) Bihar Education 8 Years
Class II
(II) Bihar Education Class II Bihar Education 8 Years
Service Class I
(iii) Bihar Education Service Class I Selection Grade 5 Years
Posts in Bihar
Education Service I
9. He draws the attention of this Court towards A.C.P. scheme dated 14.08.2002 and submits that Clause 3(X) of the A.C.P. scheme not interpreted in the case of the petitioners rightly. He submits that in Clause 3(X) promotional hierarchy is not there and it is below two posts. Thus, it 4 is not applicable. He submits that in the case of petitioners, 50% of promotional avenue is reserved for Class II. He further took to Annexure- 10 which is letter dated 21.08.2017 and submits that in the case of Jan Sewak, Government has provided the pay scale of Junior Engineers wherein 25% posts is reserved for Block Agriculture Officer is prescribed.
He further draws the attention of this Court towards Annexure-9 which is letter dated 12.08.2011 which has been issued in light of resolution of Finance Department dated 17.12.2007 whereby Juniors Engineers have been provided pay scale of Rs.8000-13,500/-. He submits that when the Government Departments have provided this scale, the petitioners have been wrongly provided the scale of Rs.6500-10,500/-. By way of referring letter dated 19.02.2009 contained in Annexure-5 he submits that in view of para (iii), promotional post of petitioners' service is 181. By way of referring this annexure, he submits that it cannot be said that there is restricted number of posts of cadre of petitioner. Letter dated 19.02.2009 itself discloses that there is substantive number of posts of cadre of petitioners. By way of referring Annexure-8 dated 01.07.2009, he submits that the persons who were employed in the cadre of petitioners, have been promoted to the next higher posts in Class II. By way of referring this annexure, he submits that it is self-explanatory that next promotional post of petitioners' cadre is in Class II and the pay scale is Rs.8000- 13,500/-.
10. Per contra, Mr. Mithilesh Singh, learned counsel appearing for respondents-State submits that there is no illegality in the impugned order as the petitioners were getting pay scale of Rs.5500-9000/- and the next higher grade of scale is Rs.6500-10,500/- and that is why they have been rightly provided the same pay scale. He submits that Clause 3(X) is very clear wherein it has been described that if the promotional post is limited, the same cannot be provided to the petitioners. By way of referring Clause 3(X) of memo dated 14.08.2002, he submits that an employee would be entitled to the scale of next higher post on grant of the benefit of A.C.P. if at least two promotional posts are available in their hierarchy of the cadre of the employee. In the case of petitioners, there are less than two promotional posts and only some percentage of the next higher posts are earmarked to be filled up by promotion. He submits that in terms of resolution dated 14.08.2002 and 18.12.2007, the employees 5 would be entitled to the next higher scale on grant of A.C.P. as indicated in schedule-1 to the said resolution.
11. In the light of above submission, the Court proceeded to examine argument of learned counsel for the parties. It transpires from going through the rules which are quoted hereinabove that 50% posts of promotion for Upper Division Sub ordinate Service is there in the light of Rule 3(c). Rule 4(2) and Rule 39 prescribe that eligible officers of Sub ordinate Education Service shall be considered in accordance with Rule 4(b) and Rule 4(c). For promotion, Rule 41 suggests the next higher rank of Sub ordinate Education Service is Bihar Education Service Class II. The minimum qualification period is eight years in Sub-ordinate Education Service (U.D.) in Bihar Education Service Class II. The minimum qualification is eight years in Bihar Education Service Class I for Bihar Education Service Class II and minimum qualification of 5 years in Selection Grade Posts in Bihar Education Service I in Bihar Education Service Class I. The letter dated 19.02.2009 discloses that 181 posts for promotion to State Education Service Class-II is there. The Clause 3(X) of A.C.P. scheme dated 14.08.2002 is not applicable in the case of petitioners as it is crystal clear from the above rules that promotional avenues are there in the light of Rules 3, 4, 39 and 41. This fact is fortified in the light of notification dated 01.07.2009 whereby the persons of cadre of petitioners have been promoted to the higher posts of Class II in the pay scale of Rs.8000-13,500/-. By resolution memo no.3589 dated 17.12.2007 of Finance Department, prescribed pay scale of Government employees which was Rs.6500/-10,500/- has been upgraded to the pay scale to Rs.8000-13,500/-. In the similar circumstances, Jan Sewak and Junior Engineers have been provided the same pay scale of Rs.8000-13,500/-. Thus in view of reasons mentioned above, the impugned order whereby the claim of the petitioner has rejected, does not survive. Accordingly, the impugned order dated 01.02.2009 is quashed.
12. The respondents-State is directed to fix the pay scale of the petitioners as has been done in the case of the promoted persons by way of notification dated 01.07.2009.
13. The writ petition stands allowed and disposed of.
(Sanjay Kumar Dwivedi, J.) Anit