Jharkhand High Court
Ramchandra Prasad vs The State Of Jharkhand Through The ... on 23 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 482 of 2023
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1.Gautam Prasad, aged about 51 years, son of Ram Bishwas Ram, resident of village Barewa Ram, resident of village Barewa, P.O. & P.S. Haidernagar, District Palamu, Jharkhand 822115, presently posted as Assistant Teacher in Government Middle School Sajwan, P.O. & P.S. Haidernagar, District Palamu, Jharkhand.
2.Mahendra Ram, aged about 53 years, son of Balkeshwar Ram, resident of village Tara, P.O.-Koshiyara, P.S.-Hyder Nagar, District-Palamu, Jharkhand 822115, presently posted as Assistant Teacher Government Middle School Kabarakhurd, P.0 & PS Hiadernagar, District Palamu, Jharkhand.
3.Shashi Shekhar, aged about 45 years, son of Girija Singh, resident of C/O- sri Janeshwar Singh Muhalla- Aman Chain, P.O. & P.S. Japala, Husainabad, District Palamu, Jharkhand 822116, presently posted as Assistant Teacher in Government Middle School Lapeya, P.O.& P.S Haidernagar, Dist. Palamu, Jharkhand.
4.Dharmendra Kumar, aged about 45 years, son of Vishundew Ram, resident of village Khargada, P.O. P.S. Haidernagar, District Palamu, Jharkhand 822115, presently posted as Assistant Teacher in Government Middle School Lapeya, Haidernagar, Palamu, Jharkhand.
5.Arjun Ram, aged about 39 years, son of Rameshwar, Ram, resident of village Dewgan P.O.-Chaparwar P.S. Chhatarpur, District Palamu, Jharkhand 822113, presently posted as Assistant Teacher in Government Middle School Khajuri, P.O. & P.S. Chhatarpur, District Palamu, Jharkhand.
6.Brajesh Kumar Pandey, aged about 46 years, son of Rajendra Pandey, resident of Panki Road Baralota, Post-GLA College, P.S. Medininagar, District Palamu, posted District Jharkhand 822102, presently posted as Assistant Teacher in Government Middle School Khura Kala, P.O. & P.S Chainpur, Dist.-Palamu, Jharkhand.
7. Dharmendra Kumar Mehta, aged about 38 years, son of Umesh Kumar Mehta, resident of village Baralota, Post-GLA College, P.S. Medinanagar, District Palamu, Jharkhand, presently posted as Assistant Teacher Government Middle School, Nawajaipur, P.O. & P.S Patan, District Palamu, Jharkhand.
8. Vinay Kumar @Binay kumar, aged about 40 years, son of
-1- L.P.A. No. 482 & 478 of 2023 Ramchandra Prasad, resident of village Ladi, Post resident Halka, son of P.S. Hariharganj, Dist- Palamu, Jharkhand, presently posted as Assistant Teacher in Middle School, Dhakcha, P.O. & P.S. - Hariharganj, Dist. Palamu, Jharkhand.
9. Santosh Kumar Gupta, aged about 45 years, son of Parshu Saw, resident of village Khajuri Saraiya, P.O. Saraiya, P.S. Hariharganj, Palamu, Jharkhand presently posted as Assistant Teacher in Middle School Tendua, P.O. & P.S. Hariharganj, Dist- Palamu, Jharkhand.
10. Pranav Kumar, aged about 38 years, son of Awadhesh Kumar Sah, resident of P.O. & P.S. Hariharganj, Dist- Palamu, Jharkhand presently posted Assistant Teacher in Middle School Tendua, P.O. & P.S. Hariharganj, District- Palamu Jharkhand.
11. Vikash Kumar Pandey, aged about 38 years, son of Chandra Bhushan Pandey, resident of Village Basiwan, P.O. P.S. Hahiharganj, Dist Palamu, Jharkhand, presently posted as Assistant Teacher in Middle School, P.O. and P.S Sarsot, Dist. Palamu, Jharkhand.
... ... PETITIONERS/APPELLANTS 1.The State of Jharkhand
2.Principal Secretary, School Education and Literacy Department, Govt. of Jharkhand, P.O. and P.S. Dhurwa District Ranchi, Jharkhand.
3. Director, Primary Education, Govt. of Jharkhand, P.O. and P.S. Dhurwa, District Ranchi, Jharkhand.
4. Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Palamu Medninagar, P.O. and P.S. Palamau, District Daltonganj.
5. Deputy Development Commissioner, Palamu P.O. and P.S. Palamu, District Daltonganj Palamau,
6. District Superintendent of Education, Palamu, P.O. and P.S. - Palamau, District Daltonganj.
7.Regional Deputy Director of Education, Palamu Division, Palamu, P.O. and P.S. Palamau, District Daltonganj.
8.Abdul Rahim, S/o name not known posted as Assistant Teacher in Upgraded Middle School, Kewal P.O. & P.S- Haidernagar, Dist- Palamu, Jharkhand.
9.Sushmit Kumar, S/o name not known posted as Assistant Teacher in Middle School Golhana, P.O. & P.S.-Pandwa, Dist- Palamu, Jharkhand.
10. Indu Bala, W/o name not known to petitioner posted as
-2- L.P.A. No. 482 & 478 of 2023 Assistant Teacher in Middle School Belwatikar, P.O. &P.S. Medininagar, Dist- Palamu.
11. Bajrang Mahto, S/o name not known to the petitioner posted as Assistant Teacher in UpGraded as Assistant Middle School, Nawadih Tenar, P.O. & P.S.-Lesliganj, Dist- Palamu, Jharkhand.
12. Leela Kumari, W/o name not known posted as Assistant Teacher in Boys Middle School Hamidganj, P.O. & P.S.- Medininagar, Dist- Palamu, Jharkhand.
13.Taufiq Ahmed Ansari, S/o name not known posted as Assistant Teacher in UpGraded Middle School Golhana, P.O. & P.S.- Pandwa, Dist- Palamu, Jharkhand.
... ... RESPONDENTS /RESPONDENTS
14.Sunil Kumar S/O-name Not known to the petitioner, Resident of-Bairiya Chowk, P.O., P.S. and District- Daltonganj.
15. Amrendra Narayan, s/o Late Indradeo Narayan Resident of:- Kabristan Road Abadganj,P.O. P.S. and District- Daltonganj.
16. Mahesh Ram, S/O Late Bhuwneshwar Ram, Resident of- Belwatika, P.O., P.S. and District-Daltonganj.
17. Anil Kumar Singh, S/O-Not known to the petitioner, Resident of-Daltonganj, P.O., P.S. and District-Daltonganj.
18. Shyam Deo Mahto S/O Late Madho Mahto, Resident of- Maurya Nagar Sudna, P.O., P.S. and District-Daltonganj.
19. Nawneet Kumar Sundram, S/O Surendra Nath Pandey Resident of-Pathar Mil Hamidganj, P.O., P.S. and District- Daltonganj.
20. Mandwi Singh, W/O Shivnandan Prasad, Resident of- Bairiya Daltongnaj, P.O., P.S. and District-Daltonganj.
21. Kamaeshwar Ram, S/O Late Muneshwar Ram Resident of Bairiya Chowk, Daltonganj, P.O., P.S. and District- Daltonganj.
22. Jagarnath Singh, S/O Late Giriwar Singh, Resident of-At Adar P.O.-Chainpur, P.S.- Chainpur, District-Palamu.
23. Sudhir Kumar Dubey, Son of Shri Damodar Dubey, Resident of Village: Palhey Khurd, P.O.: Noudiha, P.S.: Patan, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Charai, P.O. & P.S.:
Chhatarpur, District: Palamau.
24. Anand Mohan Singh, Son of Shri Saryu Prasad Singh, Resident of Village: Baralota, Ρ.Ο. G.L.A. College,
-3- L.P.A. No. 482 & 478 of 2023 Medininagar, P.S.: Medininagar District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Dhakcha, P.O. & P.S. Hariharganj, District: Palamau.
25. Amresh Kumar Singh, Son of Late Nagdev Singh, Resident of Bank Colony, Sudna, P.O.& District: P.S.:
Daltonganj, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Bari, P.O. & P.S.:
Satbarwa, District: Palamau.
26. Arvind Prasad Gupta, Son of Shri Kamta Sah, Resident of Village & P.O.: Braw Kala, P.S.: Ankorhi Gola, District:
Rohtas (Bihar), presently posted & working as Assistant Teacher, Govt. Upgraded High School, Kokro, P.O. & P.S.:
Hariharganj, District: Palamau.
27. Sumant Kumar Tiwari, Son of Shri Tulsi Tiwari, Resident of Village & P.O.: Tolra, P.S.: Rehla, District: Palamau, presently posted & working as Assistant Teacher, Govt. Upgraded High School, Kutmu, P.O.: Kutmu, P.S.: Pandu, District: Palamau.
28. Sunil Kumar Upadhyay, Son of Shri Ramtalika Upadhyay, Resident of Village: Baralota, P.O.: G.L.A. College, P.S.: Medininagar, District: Palamau, presently posted & working as Assistant Teacher, Govt. Upgraded High School, Bishrampur Pithoura, Ρ.Ο.: Pithoura, P.S.: Pipara, District:
Palamau.
29. Anil Kumar Pandey, Son of Late Dharmdev Pandey, Resident of Village: Dangai, P.O.: Pandeypura, P.S.: Patan, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Chiyanki, P.O.: Chiyanki, P.S.:
Sadar, District: Palamau.
30. Kamal Nath Tiwary, Son of Late Ramyas Tiwary, Resident of Village: Sakhua, P.O.: Naudiha, P.S.: Pandwa, District:
Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Kundri, P.O.: Kundri, P.S.: Lesliganj, District: Palamau.
31. Syed Naiyarul Islam, Son of Late Syed Fakhrul Islam, Resident of Quila Road, Husainabad, P.O.: Japla, P.S.:
Husainabad, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Barahi, P.O. & P.S.: Husainabad, District: Palamau
32. Kanhaiya Prasad, Son of Shri Sitaram, Resident of Village: Sajwan, P.O.: Kabra Khurd, P.S.: Haidernagar, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Hussainabad, P.O. & P.S.:
Husainabad, District: Palamau.
-4- L.P.A. No. 482 & 478 of 2023
33. Binod Prasad, Son of Late Mundrika Mahto, Resident of Village: Deori Khurd, P.O.: Cement Factory Japla, P.S.:
Husainabad, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Budhua, P.O. & P.S.: Husainabad, District: Palamau.
34. Krishna Ram, Son of Late Ram Nandan Ram, Resident of Village: Chawa Chattan, P.O.: Kamgarpur, P.S.: Husainabad, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middie School, Deori Khurd, P.O. & P.S.:
Husamabad, District: Palamau.
35. Shakil Ahmad, Son of Muhammed Khushdil, Resident of Village: DeoriKalan, P.O.: Japla Cement Factory, P.S. Husainabad, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Barepur, P.O.:
Barepur, P.S.: Husainabad, District: Palamau.
36. Vikas Prasad, Son of Shri Baijnath Prasad, Resident of At & P.O.: Japla, P.S.: Husainabad, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Kukahi, P.O.: Kukahi, P.S.: Haidernagar, District: Palamau.
37. Girwar Ram, Son of Shri Bhangeshwar Ram, Resident of Village: Bhajaniya, P.O. & P.S.: Mohammadganj, District:
Palanau, presently posted & working as Assistant Teacher, Govt. Urdu Middle School, Husainabad, Ρ.Ο. & P.S.:
Husainabad District: Palamau.
38. Ranjit Kumar, Son of Shri Gupteshwar Ram, Resident of Krishnanagar (Ward No. 1), P.O: Japla, P.S Husainabad, District: Palamau, presently posted working as Assistant Teacher, Govt. Middle School, Harvey, Japla, P.O.Japla & P.S.: Husainabad, District: Palamau.
39. Narendra Kumar Pandey, Son of Late Lalan Pandey, Resident of Village: Tarhasi, P.O. & P.S.: Tarhasi, District:
Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Gurturi, P.O.: Gurturi, P.S.: Tarhasi, District: Palamau.
40. Bashishth Prasad, Son of Shri Yogi Sahu, Resident of Village: Tarhasi, P.O. P.S.: Tarhasi, District: & Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Tarhasi, P.O. & P.S.: Tarhasi, District:
Palamau.
41. Ram Akhilesh Ram, Son of Shri Dwarika Ram, Resident of Village: Gagankedi, P.O. & P.S.: Pandu, District: Palamau, presently posted & working as Assistant Teacher, Govt. Upgraded High School, Kutmu, P.O.: Kutmu, P.S.: Pandu,
-5- L.P.A. No. 482 & 478 of 2023 Dist. Palamu.
42. Ramesh Mahto, Son of Late Ganauri Mahto, Resident of Village: Jamune, P.O.: Rajwadih, P.S.: Medininagar, District:
Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Mahugawan P.O. & P.S.: Pandu, District: Palamau.
43. Nand Kumar Pandey, Son of Late Chhathan Ram, Resident of Village: Banki Khurd, P.O.: Konwai, P.S.: Panki, District: Palamau, presently posted & working as Assistant Teacher, Govt. Upgraded High School, Dwarika, P.0. & P.S.:
Panki,District: Palamau.
44. Lalit Kumar Singh, Son of Shri Ramnandan Singh, Resident of Village: Baliya Kothi, P.O. & P.S.: Nashriganj, District: Rohtas (Bihar), presently posted & working as Assistant Teacher, Govt. Upgraded High School, Bishrampur Pithoura, P.O. & P.S. Pipara, District: Palamau.
45. Binod Prasad Singh, Son of Late Awadesh Singh, Resident of Village: Beniganjhar, P.O. & P.S.: Tandwa, District: Aurangabad (Bihar), presently posted & working as Assistant Teacher, Govt. Upgraded High School, Brwadih, P.O. & P.S.: Pipara, District: Palamau.
46. Vijay Ram, Son of Late Ramchandra Ram, Resident of Village: Blaha, P.O. & P.S.: Pipara, District: Palamau, presently posted & working as Assistant Teacher, Govt. Upgraded High School, Pipara, P.O. & P.S.: Pipara, District:
Palamau.
47. Nagendar Prasad, Son of Late: Hardev Ram, Resident of Village: Babandhi, P.O.: Babandhi, P.S.: Pipara, District:
Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Turk Teleya, P.O. & P.S.: Chainpur, District: Palamau.
48. Ramesh Choubey, Son of Late Bharat Choubey, Resident of Village: Ketat, P.O.: Rehla, P.S.: Bishrampur, District:
Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Ketat, P.O.: Ketat, P.S.: Bishrampur, District: Palamau.
49. Nihal Chand Ram, Son of Shri Ram Vilash Rain, Resident of Village: Buka, Ρ.Ο.: Makri, P.S.: Bhawnathpur, District:
Garhwa, presently posted & working as Assistant Teacher, Govt. Middle School, Ketat, P.O.: Ketat, P.S.: Bishrampur, District: Palamau.
50. Satish Kumar Sinha, Son of Late Kouleshwar Prasad, Resident of Village: Telhara, P.O.& P.S.: Telhara, District:
Nalanda (Bihar), presently posted & working as Assistant
-6- L.P.A. No. 482 & 478 of 2023 Teacher, Govt. Middle School, Naugada, P.O.: Naugada, P.S.:
Bishrampur, District: Palamau.
51. Vinod Dixit, Son of Late Sarya Dixit, Resident of Rehla, P.O.: Rehla, P.S.: Bishrampur, District: Palamau, presently posted & working as Assistant Teacher, Govt. Middle School, Kadhwan, P.O.: Kadhwan, P.S.: Bishrampur, District:
Palamau.
... ...INTERVENERS/RESPONDENTS
with
L.P.A. No. 478 of 2023
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1.Jharkhand Pragatishil Sikshak Sangh, registered under the Societies Registration Act bearing Registration No.-348 of 2021, having its office at 3B, Ashiana Apartment, Idrish Colony, Kanta Toli, P.O. Kanta Toli, P.S. Lower Bazar, District Ranchi through its General Secretary namely Baljeet Kumar Singh, aged about 47 years, Son of Ram Vijay Singh, resident of Bardanda, P.O.-Karimandih, P.S.-Mohammadgang, District Palamau.
2.Cornelius Minj, aged about 48 years, Daughter of Sylvester Minj, Resident of Birsa Chowk, Kathar Kocha, P.O. Hinoo, P.S. Doranda, District-Ranchi (Jharkhand).
... ... Petitioners/Appellants
Versus
1.The State of Jharkhand through the Secretary, School Education and Literacy Department, Government of Jharkhand, Ranchi having its office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi.
2.The Director, Primary Education, School Education and Literacy Department, Government of Jharkhand, Ranchi having its office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi.
... ... Respondents/Respondents
3.Krishna Sharma, aged about 58 years, Son of Late Janeshwar Sharma, Resident of Kishoreganj, Roan No. 7, Harmu Road, P.O. Harmu, P.S. Sukhdev Nagar and District Ranchi.
4.Sanjay Kumar, Son of Late Royan Sahu, Resident of Indrapuri Road No. 2, Ratu Road, P.O.-Hehal, P.S. -Sukhdev Nagar and District-Ranchi.
5.Anand Kumar Lal, Son of Shri Arun Kumar Lal, Resident of Basant Bihar, Road No. 2, Ratu Road, P.O.-Harmu, P.S.-
Argora and District-Ranchi.
-7- L.P.A. No. 482 & 478 of 2023
6.Shambhu Mishra, Son of Shri Rajeshwar Mishra, Resident of Sarovar Nagar, Devi Mandap Road, P.O. Hehal, P.S.- Sukhdev Nagar and District-Ranchi.
7.Srikant Sinha, Son of Late Shyam Sundar Prasad, Resident of Ansunilay, Nutan Nagar, Lakhe Korra, P.O. Hazaribagh, P.S.-Sadar and District-Hazazibagh.
8.Sudhir Kumar Dubey, Son of Shri Damodar Dubey, Resident of New Area Hamidganj, Ward No. 1, P.O. Daltonganj, P.S.-Daltonganj and District Palamu.
9.Kamlesh Kumar, Son of Late Bharat Pandey, Resident of 31, Tokloroad, New Colony, Shitlamandir, P.O., P.S. Chakradharpur and District-West Singhbhum.
10.Chandraman Ram, aged about 54 years, Son of Shri Foudi Ram, Resident of Patra Khurd, Jhargara P.O.-Japla, P.S.- Hussainabad and District-Palamu.
...Interveners/Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Bhanu Kumar, Advocate Mrs. Bharti Kumari, Advocate Mr. Sharad Kaushal, Advocate Mr. Krishna Shankar, Advocate Mr. Manish Kumar, Advocate For the Res-State : Mrs. Darshana Poddar Mishra, AAG-I For the Private Respondents:
: Mr. Ajit Kumar, Sr. Advocate : Mr. Rahul Kumar, Advocate : Ms. Tejaswani Safalta, Advocate : Mr. Amit Kumr Tiwary, Advocate
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CAV on 03/09/2024 Pronounced on 23/09/2024 Per Sujit Narayan Prasad, ACJ:
1. Since the issues involved in the both the intra-court appeals are identical and arise out of the common order, as such with the consent of learned counsel for the parties, the same were heard together and are being disposed of by this common order.
-8- L.P.A. No. 482 & 478 of 2023 Prayer:
2. The instant intra-court appeals, under clause 10 of the Letters Patent, are directed against common order/judgment dated 26.07.2023 passed by learned Single Judge of this Court in W.P.(S) No. 3365 of 2020 and W.P. (S) No. 4115 of 2021 and other analogous cases, whereby and whereunder the prayer made by the writ petitioners in W.P. (S) No. 4115 of 2021 and W.P. (S) No. 3365 of 2020 have been refused to be interfered with.
3. It is worthwhile to mention here that in W.P. (S) No. 4115 of 2021, the petitioners have made a prayer for quashing and setting aside decision as contained in Order No. 619 (Vidhi) dated 26.08.2021 issued by the Joint Secretary to the Government, School Education and Literacy Department, Govt. of Jharkhand, in particular Para 3(i) and
(vi), whereby, a decision has been taken for giving promotion to the teachers, who are working in Grade-3, 4 and 7, on notional basis and further prayer was made to prepare seniority list of Grade 4 teachers as per Promotion Rules, 1993 and further consider the case of the members of petitioner no. 1 for promotion to Grade -4 in terms of Promotion Rules, 1993.
4. In W.P. (S) No. 3365 of 2020 the prayer was made for quashing of Memo No. 6255/6256/6257 dated 28.12.2016,
-9- L.P.A. No. 482 & 478 of 2023 whereby many teachers including private respondents were granted promotion to Grade-IV to the post of Trained Graduate Teacher [Science/Arts/Language] with retrospective effect from 01.04.2015 on notional basis; and also made prayer for quashing para 3(iv) and 3(vi) of the Order No. 619 (Vidhi) dated 26.08.2021, by which decision has been taken to grant promotion with retrospective effect from the date of availability of vacancy and further prayer has been made for preparation of Gradation List as per Rules 7 and 8 of the Rules, 1993.
Factual Matrix:
5. The brief facts of the case, as per the pleadings made in the writ petitions, reads as under:
6. The erstwhile State of Bihar framed a Rule vide notification dated 30.09.1991 known as „Bihar Prarambhik Vidyalaya Niyukti Niyamavali, 1991‟ [Bihar Primary School Teachers‟ Rules, 1991] in exercise of power conferred under Article 309 of the Constitution of India. The Rule 11 of Rules, 1991 speaks that the candidate who possesses teachers training certificate shall be entitled for matric trained scale and who does not have teachers training certificate, at the time of appointment, will be appointed on matric untrained scale with certain conditions including the provision for sending the said untrained teachers for in-service Teachers‟
- 10 - L.P.A. No. 482 & 478 of 2023 Training in the Government Colleges. There was further provision that, immediately after passing of Teachers Training Examination, the said untrained teachers will be entitled to get the pay-scale and benefit as Matric Trained Scale.
7. Further, the State of Bihar framed a rule for promotion of teachers of primary school, under proviso to Article 309 of the Constitution of India, for promotion of the teachers of elementary schools taken over by the Government of Bihar in the name of "Bihar Taken Over Elementary School Teachers‟ Promotion Rules, 1993" (hereinafter referred to as "the Rules, 1993") to be effective from 01.01.1986. After bifurcation of the State of Bihar, it has been adopted by the State of Jharkhand by virtue of Bihar Reorganization Act, 2000.
8. The private respondents herein are the appointees under the prevalent appointment rules of Rules, 1991 under matric trained/untrained scale and governed by Promotion Rules, 1993.
9. Thereafter, the Human Resource Development Department, State of Jharkhand under proviso to Article 309 of the Constitution of India, vide notification no. 1632 dated 05.09.2012, notified a rule in the name of „Jharkhand Primary School Teacher Appointment Rules, 2012‟ (in short referred to as 'Rule, 2012').
- 11 - L.P.A. No. 482 & 478 of 2023
10. In consonance with the Rules, 2012 the State of Jharkhand issued Notification contained in Memo No. 1533 dated 31.7.2014, whereby a decision was taken to appoint trained graduate teachers for classes 6 to 8 in terms of Right of Children to Free and Compulsory Education Act, 2009. It was clarified that 50% of the said posts would be filled up by direct recruitment and rest by way of promotion from elementary school teachers.
11. Pursuant thereto, an advertisement was issued for appointment of such teachers and the members of petitioner no.1 and petitioner no.2 in W.P. (S) No. 4115 of 2021, as also petitioners of W.P.(S) No.3365 of 2020 were appointed in different districts in the year 2015 onwards in the quota fixed for direct recruitment.
12. It is the case of the petitioners, after their appointment in Grade IV to the post of „Trained Graduate Teacher‟ [Science/Arts/Language] contrary to the Promotion Rules, 1993, the State of Jharkhand granted promotion to the private respondents vide order dated 28.12.2016 with retrospective effect from 01.04.2015.
13. Further, the State issued the impugned decision in the shape of order dated 26.08.2021 to grant notional promotion to the teachers [private respondents], to Grade-III, IV and VII,
- 12 - L.P.A. No. 482 & 478 of 2023 who were appointed in the year 1993 onwards, in terms of Resolution No. 1145 dated 18.07.2019.
14. The petitioners contended that the same is illegal, arbitrary and without application of mind. It has been pleaded that promotion takes effect only with effect from the date an employee joins on such post and not with retrospective effect. In this context, reference has been made to Resolution No. 2074 dated 04.04.1985 to fortify that promotion takes effect from the date of joining and no notional or retrospective promotion is permissible.
15. Further, reference has been made to letter as contained in Memo No. 1985 dated 20.11.2016, as also Circular No. 151 of the year 2006 issued by Finance Department. Letter dated 17.01.2019 issued by the School Education and Literacy Department, Govt. of Jharkhand to fortify the stand of the petitioners.
16. Referring to Rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Finance Rules, it has been pleaded that it provides that promotion takes effect from the date on which the employee assumes the charge of higher regular post.
17. In the light of the above, the petitioners being aggrieved with the promotion orders as contained in different memos vide order dated 28.12.2016 with retrospective effect from
- 13 - L.P.A. No. 482 & 478 of 2023 01.04.2015; and Memo No. 619 (Vidhi) dated 26.8.2021, has approached this Court by filing writ petitions, which were dismissed. Hence, the present intra-court appeals.
18. It is evident from the factual aspect that for appointment of primary teachers, the erstwhile State of Bihar framed a rule vide notification dated 30.09.1991 known as „Bihar Prarambhik Vidyalaya Niyukti Niyamavali, 1991‟ [Bihar Primary School Teachers‟ Rules, 1991] in exercise of power conferred under Article 309 of the Constitution of India, wherein provision of appointment of teachers, both trained and untrained, was there. But untrained teachers were to obtain Teachers Training Certificate by way of in-service training and till then they will be entitled to get only untrained matric pay-scale.
19. The State of Bihar further framed a rule, under the power conferred under proviso to Article 309 of the Constitution of India, for promotion of the teachers of elementary schools taken over by the Government in the name of "Bihar Taken Over Elementary School Teachers‟ Promotion Rules, 1993" to be effective from 01.01.1986. After bifurcation, it has been adopted by the State of Jharkhand.
20. The private respondents herein are the teachers appointed under Rules, 1991 and governed by the promotion Rules of 1993.
- 14 - L.P.A. No. 482 & 478 of 2023 21. Thereafter, the Human Resource Development
Department of the State of Jharkhand under proviso to Article 309 of the Constitution of India, vide notification no.
1632 dated 05.09.2012, framed a rule, Jharkhand Primary School Teacher Appointment Rules, 2012 (in short referred to as 'Rule, 2012').
22. Accordingly, the State of Jharkhand issued Notification contained in Memo No. 1533 dated 31.7.2014, whereby a decision was taken to appoint teachers for classes 6 to 8 in terms of Right of Children to Free and Compulsory Education Act, 2009. It was clarified that 50% of the said posts would be filled up by direct recruitment and rest by way of promotion from elementary school teachers.
23. Pursuant thereto, an advertisement was issued for appointment of such teachers and the members of petitioner no.1 and petitioner no.2 in W.P. (S) No. 4115 of 2021, as also petitioners of W.P.(S) No.3365 of 2020 were appointed in different districts in the year 2015 onwards in the quota fixed for direct recruitment.
24. At this juncture, it is admitted fact that private respondents were initially appointed on Grade I pay-scale whereas the petitioners herein are the direct appointees on Grade IV in the year December, 2015 onwards.
- 15 - L.P.A. No. 482 & 478 of 2023
25. It is the case of the petitioners that after their appointment in the month of December, 2015 and January, 2016, the respondents-authorities vide office order as contained in memo dated 28.12.2016 granted promotion to large number of teachers, the private respondents herein, with retrospective effect i.e., 01.04.2015, thereby the promotes have been made senior to the direct recruits, the appellants herein, who were appointed in December, 2015.
26. Later on, a decision has been taken by the State- authority, as contained in Memo No. 619 (Vidhi) dated 26.8.2021 issued under the signature of Joint Secretary to the Government, School Education and Literacy Department, Govt. of Jharkhand, for giving promotion to the teachers, who are working in Grade-3, 4 and 7, on notional basis and further decision has been taken to grant promotion with retrospective effect from the date of availability of vacancy.
27. The writ petitioners, being aggrieved with the promotion orders as contained in different memos vide order dated 28.12.2016 and Memo No. 619 (Vidhi) dated 26.8.2021, has approached this Court by filing writ petitions.
28. Before the writ Court, the petitioners have taken the ground that the writ petitioners/appellants were appointed in the month of December, 2015 and January, 2016 but although the impugned order of promotion was issued on
- 16 - L.P.A. No. 482 & 478 of 2023 28.12.2016 i.e., much later point of time i.e., about more than a year of their initial appointment, but surprisingly the impugned office order of promotion dated 28.12.2016 has been issued granting promotion to teachers under Science, Arts and Language stream to Grade IV with retrospective effect from 01.04.2015 only with a purpose to rank the petitioners, who are the direct recruits, below the interveners- respondents by granting notional promotion, which is in violation of the Promotion Rules, 1993 as also the various circulars of Finance Department and the parent Education Department.
29. The writ petitioners-appellants further took the ground that Rule 2 of Promotion Rules, 1993 provides altogether 8 (eight) hierarchy i.e., from Grade I to Grade VIII for promotion of teachers in different pay-scales. It has further been stated that Grade I means Matric Trained Pay-scale and Grade II and Grade III are the senior scale and selection grade scale of Matric Trained Scale. Grade IV means Graduate Trained Pay- Scale with two Grade V and Grade VI, which are senior scale and Selection Grade Scale of Graduate Pay Scale. Further, Grade VII means Headmaster basic pay scale and Grade VIII is senior scale of Headmaster pay-scale.
30. It is further case of the petitioner in Grade IV i.e., entry grade of Graduate Pay-Scale, the petitioners were appointed
- 17 - L.P.A. No. 482 & 478 of 2023 in the year December, 2015 and January, 2016 whereas the private respondents were granted Graduate Pay-scale [Grade- IV] by way of promotion vide impugned order dated 28.12.2016, as contained in different Memos.
31. It is the specific case of the writ petitioners-appellants that they have borne in the cadre [Graduate Pay-scale] first therefore, the impugned order dated 28.12.2016, by which the respondents-authorities granted promotion to large number of teachers including the private respondents, with retrospective effect i.e., 01.04.2015, thereby the promotees have been made senior to the direct recruits, is bad in law.
32. The writ petitioners although initially had not impleaded the promotes as party but during pendency of the writ petitions the promotes have entered into the proceeding by way of filing intervention petition, which was allowed by the writ court to cut short the multiplicity of proceeding and based upon they were provided opportunity of hearing.
33. In the writ proceeding, the State has appeared and contested the case by filing counter affidavits.
34. The grounds have been taken by the respondents in the counter affidavit that the promotion which has been granted in favour of private respondents with retrospective effect cannot be said to suffer from error, reason being that the said promotion order was issued in consonance with the statutory
- 18 - L.P.A. No. 482 & 478 of 2023 provision as contained under Promotion Rules, 1993 wherein there is no bar to grant retrospective promotion/notional promotion. The relevant Promotion Rules, 1993 provides that the promotion is to be granted to one or other incumbent subject to availability of vacancy and vacancy was there but for one or the other reason, the private respondents could not get promotion, hence, the promotion was granted with retrospective effect i.e., from the date of their entitlement and vacancy being available.
35. It has further been stated that the State of Jharkhand, therefore, has taken a uniform decision to grant retrospective/notional promotion with effect from the date of entitlement of one or the other teachers vide notification as contained in Memo No. 619 (Vidhi) dated 26.8.2021, to grant retrospective/notional promotion with effect from the date of entitlement of one or the other teachers. It has further been averred that such decision was taken in compliance of various judgment including the judgment rendered in the case of State of Jharkhand & Ors Vs. Arun Sinha [LPA No. 214 of 2008 with analogous cases], which ha sbeen affirmed by Hon‟ble Apex Court in S.L.A. (Civil) No. 5520- 5522 of 2013.
36. In addition to that the interveners-private respondents have submitted that writ petitioners have been appointed
- 19 - L.P.A. No. 482 & 478 of 2023 much after the appointment of private respondents- interveners, as such the seniority of the private respondents- interveners has to be counted from the date of initial appointment. It has further been submitted that the members of petitioner no. 1 and petitioner no. 2 were not even born in the service/cadre, when the interveners were appointed. It has further been submitted that once a person became eligible and there is vacancy, he has a right to get promotion and merely for the fault lies on the part of the State no one can made to suffer and the State taking into consideration these facts since has granted promotion to interveners vide notification/order dated 28.12.2016 by which the respondents-authorities granted promotion with retrospective effect i.e., 01.04.2015 cannot be said to suffer from error.
37. Learned Single Judge, taking into consideration the aforesaid fact and considering the fact that earlier there was no concept of direct appointment of teachers in Grade-IV when the interveners were appointed and the concept of appointment of teachers for classes 6 to 8 (i.e. Grade-IV) came only after enactment of Right of Children to Free and Compulsory Education Act, 2009. As such merely because the appointment of teachers in the year 2015 onwards, the case of those who were already in service right from 1994
- 20 - L.P.A. No. 482 & 478 of 2023 onwards cannot be allowed to suffer. Accordingly, the writ petitions was dismissed with an observation that the State is free to abide by the impugned decision and grant promotion to the teachers entitled under the law, which is the subject matter of instant intra-court appeals.
Argument on behalf of appellants-writ petitioners:
38. Mr. Bhanu Kumar, learned counsel appearing for the appellants-writ petitioners has challenged the order passed by learned writ Court on the following grounds:
I. That the learned Single Judge has not appreciated the factual aspect in right prospective that by granting promotion with retrospective effect to the private respondents-promotees, they have also been granted benefit in the seniority list while fixing the inter se seniority of the direct recruits and the promotes and without taking into consideration the fact that the writ petitioners [direct appointees] have taken birth in the cadre i.e., Grade IV [Graduate Trained Pay-Scale] way back in the month of December, 2015 and the interveners-private respondents have been granted promotion in Grade IV vide notification dated 28.12.2016 i.e., after about a year entering into the cadre by the writ petitioners-
direct appointees but by granting such promotion
- 21 - L.P.A. No. 482 & 478 of 2023 with retrospective effect from 01.04.2015, the inter se seniority has been disturbed. As such the promotees even though had not taken birth in the cadre have been shown to be senior, which cannot be said to be just and proper. But the aforesaid fact has not been taken into consideration by the learned Single Judge in the impugned order.
II. The learned Single Judge has also erred in passing the impugned order while taken into consideration the long length of service of the interveners, which led the learned Single Judge in coming to the conclusion that the private respondents are treated to be senior to that of direct recruits, who have come in the service/cadre by virtue of enactment of the provision of Jharkhand Primary School Teacher Appointment Rules, 2012.
III. It has been submitted that aforesaid finding arrived at learned Single Judge cannot be said to be just and proper reason being that in the matter of promotion and for the aforesaid purpose, the fixation of inter-se seniority amongst promotees and direct recruits i.e., the entry in the feeder cadre is to be considered and not date of the entry in the service.
Here, admittedly, the writ petitioners-appellants
- 22 - L.P.A. No. 482 & 478 of 2023 entered in the feeder cadre of Grade IV much prior to the private respondents. But the learned Single Judge has considered the basis of seniority on the ground of entry made in initial service in the different cadres i.e, Matric trained scale, even though the private respondents at the time of their initial appointment were not having teachers training certificate, but subsequently they got training and by virtue of order passed by this Court, they have been given benefit of matric trained scale from the date of their initial appointment. But the aforesaid issue of granting matric trained scale is having no adverse effect on anybody.
IV. But while putting the private respondents and alike senior to that of direct recruits by granting retrospective promotion, merely on the ground that the private respondents have been inducted in service way back to that of direct recruits cannot be a ground to put the private respondents [promotees] senior to that of direct recruits/appointees [writ petitioners] otherwise all time to come the direct recruits will suffer and the same cannot be said to be the principle for deciding the inter se seniority between the private respondents [promotees] and the petitioners. But the
- 23 - L.P.A. No. 482 & 478 of 2023 learned Single Judge did not appreciate these facts into consideration while passing the impugned order.
V. It has been contended that crux of the matter revolves around the inter se seniority between the writ petitioners-appellants and the private respondents, who have been impleaded in representative capacity, but the learned Single Judge without taking into consideration the settled principle of law that seniority cannot be given on retrospective basis when an employee was not even born in the cadre and by doing so, it may adversely affect the employees who have been appointed validly in the meantime.
VI. It has further been submitted that judgment rendered in the case of Arun Sinha & Ors Vs. State of Jharkhand [W.P.(S) No. 638 of 2006] affirmed in L.P.A. No. 214 of 2008 and the matter travelled up-to Hon‟ble Apex Court as also in W.P.(S) No.2547 of 2014 (Sunil Kumar Bhagat & Ors. Vs. The State of Jharkhand & Ors.], upon which reliance has been placed, is not applicable in the facts and circumstances of the present case reason being that both the judgments are individual claim of petitioners which pertains to grant of Grade-I Matric Trained
- 24 - L.P.A. No. 482 & 478 of 2023 Scale from the date of initial appointment and it does not in any way deals with the issue of granting promotion to Grade IV [Graduate Trained Scale] with retrospective effect or in particular dealing with the issue of inter se seniority. Therefore, the judgments rendered in the case of Arun Sinha (supra) and Sunil Kumar Bhagat (supra), are of no help to the private respondents [promotees] but the learned Single Judge relying upon the same has passed the impugned judgment, therefore, the same requires interference by this Court.
VII. Ground has also been taken that the promotion was granted on the basis of Bihar Taken Over Elementary School Teachers‟ Promotion Rules, 1993 but after coming into effect of Right of Children to Free and Compulsory Education Act, 2009 in terms of which the Jharkhand Primary School Teacher Appointment Rules, 2012 was framed for making direct recruitment on the post of Graduate Trained Teacher in Grade IV, the issue of inter se seniority of the direct recruits vis-à-vis the promotees [private respondents], was also required to be considered by making out a policy decision to protect the right of the parties. However, in absence of any
- 25 - L.P.A. No. 482 & 478 of 2023 such policy decision/rule, consideration ought to have been given by learned Single Judge that the private respondents, who have been granted promotion with retrospective promotion may have no adverse effect on the seniority of the direct recruits on the principle that the day when the direct recruits were appointed in view of provisions of Rule, 2012 the promotees were not even taken birth in the cadre but by virtue of granting retrospective promotion they have been shown to be taken birth in the cadre without discharging the duty in the cadre.
VIII. Therefore, the impugned Memo dated 28.12.2016, whereby many teachers including private respondents were granted promotion to Grade-IV with retrospective effect from 01.04.2015 is fit to be quashed and set aside.
IX. Further ground has been taken that in the impugned order there is no whisper about the determination of inter se seniority of the appellants [direct recruits] and the private respondents [promotes[ which is the main crux of the matter and similarly the impugned order as contained in Memo No. 619 dated 26.08.2021 which was issued subsequent to the appointment of the
- 26 - L.P.A. No. 482 & 478 of 2023 petitioners/appellants is completely silent regarding the inter se seniority between the direct recruits and the promotes on the post of Graduate Trained Pay Scale, as such finding recorded by the learned Single Judge is wholly erroneous and requires interference by this Court.
X. Learned counsel for the writ petitioners, questioning the order/decision of the State as contained in Memo No. 619 dated 26.08.2021, has submitted that the said order was passed by the State on the strength of direction passed by learned writ Court in W.P.(S) No. 7392 of 2017 [Nand Kishor Nayak Vs. State of Jharkhand & Ors] disposed of vide order dated 26.09.2018, wherein prayer has been made for direction upon the respondents-State to pay them monetary benefits upon grant of Grade-I from the date of appointment and further Grade-II, as per the decision of the Hon'ble Court, passed in W.P.(S)No.638 of 2006 (Arun Sinha & ors. vs. the State of Jharkhand & ors.) and the direction was passed upon the State to take a uniform decision for extending the actual benefits of promotion to the petitioners.
- 27 - L.P.A. No. 482 & 478 of 2023
XI. It has been submitted that in the said
judgments since there is no issue of granting Grade IV promotion taking into consideration inter se seniority, as in the instant case, but the State based upon the finding so given in W.P.(S) No. 7392 of 2017 [Nand Kishor Nayak Vs. State of Jharkhand & Ors], issued the impugned order/decision of the State as contained in Memo No. 619 dated 26.08.2021 which requires to be quashed and set aside.
39. Learned counsel for the writ petitioners-appellants based on the aforesaid ground has submitted that the order passed by learned Single Judge needs interference by this Court.
Submission on behalf of respondents:
40. Learned counsel for the State and the respondents- promotees have jointly defended the order passed by learned Single Judge by raising the following grounds:
I. It has been contended that the contesting private respondents have been appointed in the year 1993- 1994 and since then they were working in the scale of matric trained scale however without any training and subsequent to training, by virtue of order passed by this Court they have been treated to be appointed on Matric Trained Scale from the initial date of
- 28 - L.P.A. No. 482 & 478 of 2023 joining and in consequence thereof, they have been entitled for matric trained scale from the date of their initial appointment.
II. It has further been contended that vacancies were there but due to laches committed on the part of the State-authorities, the private respondents were not granted promotion to higher Grades, as such they come to this Court by filing writ petition being W.P. (S) No. 638 of 2006 [Arun Sinha & Ors Vs. State of Jharkhand & Ors], which was disposed of directing the State to grant Grade-I pay scale from the date of initial appointment and to consider for further promotion to Grade-IV i.e., Graduate Trained pay scale after 8/12 years of completion of service. The order passed by writ Court attained its finality up-to Hon‟ble Supreme Court.
III. It has been submitted that in compliance thereof, many teachers were promoted with retrospective effect to one or other grades treating them in Grade-I from the date of their appointments/joining. In compliance of the aforesaid judgments, the State of Jharkhand took a policy decision vide Memo No. 3027 dated 14.12.2015 for grant of Grade-I from the date of joining of the
- 29 - L.P.A. No. 482 & 478 of 2023 respective teachers. The issue relating to grant of Grade-I from the date of joining/appointment, therefore, attained its finality. Once they were treated in Grade-I from the date of appointment/joining, their seniority has to be fixed accordingly with their entitlement for promotion to respective Grades. IV. It has further been submitted that once the teachers attained the eligibility, they are entitled for promotion with effect from the date they were eligible and as such the State authority taking into consideration these aspects of the matter has granted promotion with retrospective effect i.e., from the date of availability of vacancy i.e., 01.04.2015, which cannot be faulted with.
V. It has been contended that the writ petitioners/appellants have been appointed
subsequent to the date of promotion and as such at the time of preparing the seniority list of private respondents and the writ petitioners, based upon the entry in the cadre the private respondents since have entered in the cadre prior to writ petitioner by way of granting retrospective promotion, they have rightly been treated senior to that of writ petitioners.
- 30 - L.P.A. No. 482 & 478 of 2023 VI. It has been contended that the private respondents have been promoted taking into
consideration the relevant rules of promotion i.e., Promotion Rules, 1993 wherein specific provision has been made that promotion as also the inter se seniority, shall be determined on the basis of date of entry in the cadre and admittedly by virtue of promotion granted in favour of private respondents with retrospective effect they have entered in the cadre prior to that of writ petitioners, the direct recruits, and as such based upon Rule 8 of Rules, 1993, the private respondents have been treated to be senior to that of writ petitioners, the direct recruits. VII. It has further been argued that there is no fault on the part of the private respondents or similarly situated teachers, as they were appointed as untrained in terms of the appointment rules applicable at the relevant point of time, which was framed under the proviso to Article 309 of the Constitution of India. The promotions of teachers were granted in terms of the said Promotion Rules, 1993, in which, there is no bar to grant retrospective promotion/notional promotion, particularly in a case where delay is caused at the instance of the State.
- 31 - L.P.A. No. 482 & 478 of 2023 Once a person became eligible and there is vacancy available, he/she has a right to get promotion with all consequential benefits. Merely for the fault on the part of the State, no one can be denied promotion from retrospective date.
VIII. The ground has also been taken that the learned Single Judge has passed the order taking into consideration the order passed by this Court in the case of Arun Sinha & ors (Supra) and Sunil Kumar Bhagat (supra) wherein the issue of retrospectivity has been taken into consideration and based upon the same the respondents-authorities have been directed to pay all back wages of arrears of salary. Meaning thereby this Court has come to the conclusive finding by holding the petitioners therein entitled for the back wages with retrospective promotion, which itself suggests the retrospective promotion is permissible.
IX. Learned counsel further submits that there is nothing wrong in granting retrospective promotion with effect from the date of entitlement and the vacancy being available. Taking these facts into consideration, the State of Jharkhand since has taken a uniform decision to grant retrospective/
- 32 - L.P.A. No. 482 & 478 of 2023 notional promotion with effect from the date of entitlement of one or the other teachers vide decision dated 26.08.2021, that cannot be faulted with.
41. Learned counsel for the respondents on the aforesaid pretext has submitted that order passed by the learned Single Judge suffers from no error and requires no interference by this Court.
Analysis:
42. We have heard learned counsel for the parties, gone across the finding recorded by learned Single Judge in the impugned orders as also the relevant rules.
43. The writ petitioners herein are mainly aggrieved with promotion order dated 28.12.2016, whereby many teachers including private respondents have been granted promotion to Grade-IV with retrospective effect from 01.04.2015, which allegedly involves dispute of inter se seniority between two sets of teachers.
44. First set of teachers are the private respondents who were initially appointed in the year 1993-94 in Grade I Scale, under Bihar Primary School Teachers‟ Rules, 1991, though initially on untrained Trained Matric Pay-Scale but later on completion of required Teachers‟ Training and the order passed by this Court in different writ petitions they have been
- 33 - L.P.A. No. 482 & 478 of 2023 made entitled for Grade I pay-scale since the date of their appointment.
45. Whereas, the second set of teachers, the writ petitioners-appellants herein, are the direct recruits appointed under the Jharkhand Primary School Teacher Appointment Rules, 2012 in Grade IV, i.e., the entry level of Graduate Trained Scale appointed in the year December, 2015.
46. Meaning thereby the dispute is in between the inter se seniority between the direct recruits and the promotees.
47. This Court, in order to come to adjudicate the dispute between the parties, requires to refer the admitted fact involved in the case.
Factual aspect with respect to promotees:
48. The erstwhile State of Bihar, for appointment of primary teachers, framed a rule vide notification dated 30.09.1991 known as „Bihar Prarambhik Vidyalaya Niyukti Niyamavali, 1991‟ [Bihar Primary School Teachers‟ Rules, 1991] (hereinafter referred to as "the Rules, 1991") in exercise of power conferred under Article 309 of the Constitution of India, wherein there was provision of appointment of teachers, both trained and untrained. But untrained teachers were to obtain Teachers Training Certificate by way of in-
- 34 - L.P.A. No. 482 & 478 of 2023 service training and till then they will be entitled to get only untrained matric pay-scale.
49. The State of Bihar further framed a rule, under the power conferred under proviso to Article 309 of the Constitution of India, for promotion of the teachers of elementary schools taken over by the Government in the name of "Bihar Taken Over Elementary School Teachers‟ Promotion Rules, 1993" (hereinafter referred to as "the Rules, 1993") to be effective from 01.01.1986. After bifurcation, it has been adopted by the State of Jharkhand. Rules 7 and 8 thereof deals with „draft of seniority list for promotion‟ and „inter-se seniority in the same grade‟.
50. The private respondents herein are the teachers appointed under Rules, 1991 and governed by the promotion Rules of 1993.
51. However, some disputes arose with regard to appointment of Elementary Teachers as to whether they should be treated district-wise appointees or State wise because their appointment were conducted by Bihar Public Service Commission. The matter ultimately went up-to the Hon‟ble Apex Court in the case of Ram Vijay Kumar & Ors. Vs. State of Bihar & Ors [(1998) 9 SCC 227], wherein at paragraph 5, the Hon‟ble Apex Court took serious view of the matter that no steps were taken by the State Government for
- 35 - L.P.A. No. 482 & 478 of 2023 imparting training to the untrained teachers, as such direction was given to take immediate steps to finalize syllabus and commence the training of untrained teachers w.e.f. 01.10.1997.
52. Pursuant thereto though training was completed but benefit of Grade I was not given from the initial date of appointment, as such the aggrieved teachers approached this Court invoking the writ jurisdiction of this Court, one of the leading case is Arun Sinha & Ors Vs. State of Jharkhand & Ors [W.P. (S) No. 638 of 2006], in which direction was passed to grant Grade-I pay scale from the date of initial appointment and to consider for further promotion to Grade- IV i.e., Graduate Trained pay scale after 8/12 years of completion of service. Against that order, the State of Jharkhand preferred appeal being LPA No. 214 of 2008 with analogous cases, which was dismissed vide order dated 06.11.2012. The matter went up-to Hon‟ble Apex Court in SLP(C) No. 5520-5522 of 2013, which was also dismissed vide order dated 08.03.2011.
53. Similarly, in the case of Sunil Kumar Bhagat and ors. Vs. State of Jharkhand & Ors with analogous cases, in W.P. (S) No. 2547 of 2014, this Court directed the respondents-State to grant Grade I scale to the teachers from the initial date of appointment.
- 36 - L.P.A. No. 482 & 478 of 2023
54. In view of the judgments passed by this Court, the State Government has come out with a decision as contained in Resolution No. 3027 dated 14.12.2015, in which, a decision was taken by the State Government to grant Grade I Matric Trained Scale from the initial date of appointment of such teachers in whose case there was delay in imparting training and publication of results. However, in the aforesaid resolution, it was clearly mentioned that it will not be treated as precedent.
Factual aspect with respect to recruits (writ petitioners):
55. The Human Resource Development Department of the State of Jharkhand under proviso to Article 309 of the Constitution of India, vide notification no. 1632 dated 05.09.2012, framed a rule, Jharkhand Primary School Teacher Appointment Rules, 2012 (in short referred to as 'Rule, 2012').
56. Accordingly, the State of Jharkhand issued Notification contained in Memo No. 1533 dated 31.7.2014, whereby a decision was taken to appoint teachers for classes 6 to 8 in terms of Right of Children to Free and Compulsory Education Act, 2009. It was clarified that 50% of the said posts would be filled up by direct recruitment and rest by way of promotion from elementary school teachers.
57. Pursuant thereto, an advertisement was issued for appointment of such teachers and the members of petitioner
- 37 - L.P.A. No. 482 & 478 of 2023 no.1 and petitioner no.2 in W.P. (S) No. 4115 of 2021, as also petitioners of W.P.(S) No.3365 of 2020 were appointed in different districts in the year 2015 onwards in the quota fixed for direct recruitment.
58. Admittedly, herein the private respondents were initially appointed on Grade I pay-scale whereas the petitioners herein are the direct appointees on Grade IV in the year December, 2015 onwards.
59. Further admitted fact herein is that after the appointment of the writ petitioners in the month of December, 2015 and January, 2016 on the post of Graduate Trained Teacher in Grade IV and while discharging duty as such, the respondents-authorities vide office order as contained in memo dated 28.12.2016 granted promotion to large number of teachers, who were appointed as per the Promotion Rules, 1993, in Graduate Trained Pay Scale of Grade -IV [in Science, Arts and Language Stream] with retrospective effect i.e., 01.04.2015, thereby the promotes have been made senior to the direct recruits, the appellants herein, who were appointed in December, 2015 and January, 2016.
60. Later on, decision has been taken by the State- authority, as contained in Memo No. 619 (Vidhi) dated 26.08.2021 issued under the signature of Joint Secretary to
- 38 - L.P.A. No. 482 & 478 of 2023 the Government, School Education and Literacy Department, Govt. of Jharkhand, for giving promotion to the teachers, who are working in Grade-3, 4 and 7, on notional basis and further decision has been taken to grant promotion with retrospective effect from the date of availability of vacancy.
61. The writ petitioners, being aggrieved with the promotion orders as contained in different memos vide order dated 28.12.2016 as also Memo No. 619 (Vidhi) dated 26.8.2021, has approached this Court by filing writ petitions on the ground that though their appointment on the post of Trained Graduate Teachers in the stream of Science, Arts and Language in Grade IV have been made in December, 2015 and January, 2016 but the respondents-authorities granted promotion to the private respondents vide office order dated 28.12.2016 in Graduate Trained Pay Scale with retrospective effect from 01.04.2015 i.e., much prior to the date of appointment of the writ petitioners-appellants, which would adversely affect the future promotion of the direct recruits like that of writ petitioners and disturb the inter se seniority of the writ petitioners/appellants and they would be ranked lower to such teachers who have been granted promotion with retrospective effect.
62. The learned Single Judge, taking into consideration the relevant provisions of Appointment Rules, 1991; Promotion
- 39 - L.P.A. No. 482 & 478 of 2023 Rules, 1993 and Appointment Rules, 2012 and other provisions of law as also the law laid down by Court of law in the case of Sunil Kumar Bhagat & Ors. Vs. State of Jharkhand & Ors. (supra) and Arun Sinha (supra) dismissed the writ petitions being W.P. (S) No. 4115 of 2021 and W.P. (S) No. 3365 of 2020, which is the subject matter of instant intra-court appeals.
63. Therefore, this Court deems it fit and proper to now go through the relevant provision of Rules, 1991; Rules, 1993 and Rules, 2012 as also the case laws on which reliance has been placed by the parties as also by learned Single Judge.
64. The private respondents were appointed on the basis of appointment Rules of 1991, namely, Bihar Primary School Teachers‟ Rules, 1991] wherein there was provision of appointment of teachers, both trained and untrained. But untrained teachers were to obtain Teachers Training Certificate by way of in-service training and till then they will be entitled to get only untrained matric pay-scale.
65. As per the provisions contained under Rule 11 of Rules, 1991, the private respondents without having Teachers Training were appointed as such they were initially granted Matric Untrained Scale.
66. The Rule 11 of Rules, 1991 speaks that the candidate who possesses teachers training certificate shall be entitled
- 40 - L.P.A. No. 482 & 478 of 2023 for matric trained scale and who does not have teachers training certificate, at the time of appointment, will be appointed on matric untrained scale. It was further averred that immediately after passing of Teachers Training Examination, the said untrained teachers will be entitled to get the pay-scale and benefit as Matric Trained Scale.
67. For ready reference, Rule 11 of Rules, 1991 is quoted as under:
11- ojh;rk lwph esa vkj{k.k fu;eksa dk vuqikyu djrs gq, fjfDr;ksa dks Hkjus ds fy, fuEu izdkj dkjZokbZ dh tk;xh ¼1½ tks mEehnokj izf"kf{kr gSa] mUgsa eSfVªd izf"kf{kr osrueku esa fu;qDr fd;k tk;sxkA ¼2½ tks mEehnokj vizf"kf{kr gSa] mUgsa eSfVªd vizf"kf{kr osrueku ds izkjfEHkd osrueku esa fuEu "kÙkksZa ds lkFk fu;qDr fd;k tk;sxk% ¼d½ izf"k{k.k ds fy, izfrfu;qDr fd;s tkus ij mlesa i;kZIr dkj.k ds Hkkx u ysus ij lsok lekIr dj nh tk;sxhA ¼[k½ izf"k{k.k mijkUr ijh{kk yh tk;sxh mlesa mEehnokj ;fn lQy ugha gksrk gS rks mls ,d ekSdk vkSj fn;k tk;sxk ;fn nwljh ckj Hkh og vuqÙkh.kZ jgrk gS rks mldh lsok lekIr dj nh tk;xhA ¼x½ izf"k{k.k dh vof/k esa le;≤ ij fu/kkZfjr nj ij o`fÙkdk ek= ns; gksxhA izf"k{k.k vof/k ds fy, osru ns; ugha gksxkA ¼?k½ dafMdk ¼[k½ esa fufnZ"V ijh{kk esa mÙkh.kZ gksus ds mijkUr eSfVªd izf"kf{kr osrueku fn;k tk;sxkA
68. But when no in-service Teachers‟ Training was conducted, the aggrieved teachers approached this Court by filing number of writ petitions. Further, the dispute with regard to appointment of Elementary Teachers as to whether they should be treated district-wise appointees or State wise
- 41 - L.P.A. No. 482 & 478 of 2023 because their appointment were conducted by Bihar Public Service Commission, the matter ultimately went up-to the Hon‟ble Apex Court in the case of Ram Vijay Kumar & Ors. Vs. State of Bihar & Ors [(1998) 9 SCC 227], wherein at paragraph 5, the Hon‟ble Apex Court took serious view of the matter that no steps were taken by the State Government for imparting training to the untrained teachers, as such a direction was given to take immediate steps to finalize syllabus and commence the training of untrained teachers w.e.f. 01.10.1997.
69. For ready reference, the factual aspect and finding given by Hon‟ble Apex Court at paragraph 1 and 5 respectively are quoted as under:
"1. This special leave petition relates to recruitment of Assistant Teachers in Elementary/Primary Schools in the State of Bihar. The said recruitment was made on the basis of an advertisement issued on 8-10-1991. The petitioners in this special leave petition are persons who possess teaching qualifications obtained from Government/Private Teachers' Training Institutions. They had filed a writ petition in the High Court assailing the process of selection by the Bihar Public Service Commission (hereinafter referred to as "the Commission"). The grievance was that the selection was made on districtwise basis and the persons who had applied from a particular district were treated as applicants and aspirants for appointment to the posts in that particular district only. The said writ petition has been disposed of by the High Court by the impugned judgment dated 26-9-1996. The High Court has held that the eligible candidates have a right of consideration for their
- 42 - L.P.A. No. 482 & 478 of 2023 appointment in any one or other district cadre of Assistant Teachers and the State could not force a person to confine his application for a particular district cadre at the time of application. But keeping in view the facts and circumstances, the High Court has not set aside the impugned selection and the appointments made on the basis of such selection.
5. From the affidavit of Shri Deepak Kumar it appears that although appointment of Assistant Teachers on the basis of the impugned selection was made in August 1994 no steps have been taken so far by the State Government for imparting training to the untrained teachers. All that has been said in the affidavit of Shri Deepak Kumar is that the training period of two years is being reduced to one year and the syllabus for the one-year course is yet to be prepared. This lackadaisical approach in the matter of imparting training to persons who are required to teach students is indefensible. It is, therefore, directed that the State Government shall take immediate steps to finalise the syllabus and that the training courses for training of the untrained teachers should commence from 1-10-1997. It must be ensured that all the untrained teachers who have been appointed as per the aforementioned selection are duly trained within two years' time."
[Emphasis supplied]
70. It needs to refer herein that the some of the teachers appointed in the year 1993-94 since at the time of entering into service were a simple matriculate as such they were inducted in service in the untrained matric scale.
71. Since, there was delay in deputing the untrained teachers for in-service training, because of which they were not getting Grade-I pay scale, as a result of which various writ petitions were filed before the High Court and further
- 43 - L.P.A. No. 482 & 478 of 2023 untrained teachers remained stagnant in the same scale for long period of time without any up-gradation, the aggrieved submitted representation before the respondents-authority, which was rejected vide office order dated 03.05.2003 stating that the untrained teachers would be entitled to Grade I only from the date of attaining training.
72. Aggrieved thereof, similarly situated persons approached this Court by filing writ petition being W.P. (S) No. 5465 of 2007 in the case of Awadh Bihari Mishra & Ors. Vs. The State of Jharkhand & Ors seeking therein prayer for grant of Grade I scale from the date of appointment and seniority from the date of appointment with a further prayer to grant promotion to Grade I to Grade VII. The said writ petition was allowed vide order 18.06.2008 directing the State to grant Grade I from the date of joining and not from the date of completion of Teachers Training.
73. For ready reference, the relevant paragraph of the judgment is quoted as under:
"In this writ petition the petitioners have prayed for quashing the letter dated 3.5.03 (Annexure-13) whereby the representation of the petitioners has been rejected holding that the untrained teachers would not be entitled for promotion from Grade-I scale onwards and that they would be entitled for promotion to Grade-I scale only from the date of obtaining the Teachers' Training.
The petitioners were appointed as untrained teachers by the Human Resources Development Department, Government of Bihar
- 44 - L.P.A. No. 482 & 478 of 2023 in accordance with its policy decision and resolution dated 5.3.1991. The Government of Bihar had also framed the Rules known as the Bihar Primary School Teachers' Rule, 1991 In exercise of its power under Article 309 of the Constitution of India wherein there was a provision for appointing the in-service untrained teachers and after appointment, for sending the said teachers for in-service Teachers Training in the Government Colleges.
The petitioners were untrained Graduate and were appointed in the year 1994 on the basis of the merit list prepared after completing all the legal formalities. The Director, Primary Education, Government of Bihar by Letter No.-998/95 dated 7.6.95 took a decision to grant Grade-1 scale of the Matric Trained to the untrained teachers who ware Graduate. However, after the appointment of teachers, they were not sent for training. The appointment procedure was also challenged before the Patna High Court. The matter went up to the Hon'ble Supreme Court in S.LP (Civil) No. 23187/1996 (Ram Vinay Kumar & Ors: Vs. State of Bihar & Ors.). In the said S.LP, the Supreme Court gave certain direction on the State of Bihar for sending the petitioners for service training. The Finance Department, Government of Jharkhand by letter No. 4568 dated 5.7.02 granted Grade-1 Matric Trained scale to such untrained teachers w.e.f 1.1.1996. It was also decided that the seniority position of the petitioners shall be maintained as per the merit list prepared at the time of their appointment. However, the petitioners have been stagnated in the same scale for more than 12 years without any up-gradation. In the scale. Although the persons appointed with the petitioners have been promoted from Grade-1 scale to Grade-IV scale, the petitioners have not been given even Grade-11 scale. They made representation though their Association which was rejected by the Government of Jharkhand Indicating that the untrained teachers would not be entitled for promotion from Grade-1 scale to Grade-VIII scale and that they would be entitled to Grade-1 scale only from the date of attaining the Teachers Training. The petitioners are aggrieved by the said order.
- 45 - L.P.A. No. 482 & 478 of 2023 Today when the case is taken up for hearing, It has been submitted by learned counsel for the petitioners that in the similar fact situation, other writ petitions have been disposed of by this Court holding that the petitioners' seniority is to be counted from the date-of-their appointment and that the petitioners are entitled for consideration of fixing their seniority from the date of their appointment and also for consideration of giving the benefit of Grade-IV scale after completion of 8/12 years of their service. Such directions have already been given by this Court in W.P(S) No.4235/2004 (Balwant Sahay Vs. The State of Jharkhand & Ors.) and W.P(S) No. 638/2006 (Arun Sinha Vs. The State of Jharkhand & Ors.).
The said legal position has hot been disputed by learned counsel for the respondents.
I have perused the decisions/directions given by this Court in the said cases. This case is squarely covered by the sald decisions of this Court. In view thereof, the impugned order/letter dated 3.5.2003 contained in Anenxure-13 is, herby, quashed. It is held that the respondents are entitled to get Grade-I scale from the date of their joining from i.e., on 29.10.1994 and not from the date of completion of the Teachers' Training.
This writ petition is allowed in the said terms."
74. Similar issue was raised in the case of Arun Sinha & Ors. Vs. The State of Jharkhand & Ors [W.P. (S) No. 638 of 2006] which was disposed of vide order dated 04.04.2008, wherein also, it has been held that the petitioners‟ case should be considered for holding their seniority from the date of their appointment and it was further held that their case should be considered for giving benefit of Grade IV scales after completion of 8/12 years of their service.
75. For ready reference, the entire order passed by learned Single Judge is quoted hereunder as since, much emphasis
- 46 - L.P.A. No. 482 & 478 of 2023 has been laid on this judgment by the private respondents as also the State:
"Heard the parties finally.
2. Mr. Pandey, learned counsel appearing for the petitioners, submitted as follows. The petitioner's were appointed in September/October, 1994 as Assistant Primary Teachers on the recommendation of the BPSC and on the basis of merit. The minimum qualification for appointment of such teachers was matric and weightage was to be given to trained, but as the petitioners had higher qualifications namely graduation and above they were given matric trained scale since their appointment, in the light of the government circulars. They were given replacement scales subsequently of Grade-1. Petitioners repeatedly requested for sending them for training but they were sent only in 1998, and that too only after the orders passed by the Supreme Court on 5.9.1997. They completed the training in the year 1999 but the result was published in the year 2002 only after the intervention of the Court. In the circumstances, petitioners were not at fault in not acquiring training. Therefore, the petitioners should be given grade IV scale as they have also completed the requisite period Le. 8/12 years in service. He also relied on clause 3 (Kha) of the Circular dated 25.6.1909, issued by the Finance Department, Government of Bihar, in which, it is said that the seniority of the untrained primary teachers will remain intact, in any case, even if they do not pass the training examination or if they do not get training. He also relied on the order dated 5.1.2007 passed in WPS No. 6264 of 2005 Jharkhand Police Association etc. and submitted that petitioners cannot be made to suffer if they were not sent for training and there was delay in completing the training.
3.Counsel for the State on the other hand submitted as follows. It is true that on the basis of merit list and ranking list of the petitioners, they were appointed against matric trained pay-scale in accordance with different orders/directions of the State Government, and that as per the said Circular dated 25.6.1999, the seniority is to be counted from the date of appointment, but in
- 47 - L.P.A. No. 482 & 478 of 2023 view of paragraph 13 of GSR 28 dated 9.7.1993, petitioners are entitled for, grade 1 pay-scale from the date of passing Teachers Training Examination ic. 3.5.2002. He lastly submitted that seniority list is yet to be finalized.
4. It is not disputed that petitioners were appointed in September/October 1994 in the matric trained scale and were subsequently, given replacement scale of Grade-1 as per the current Circular. It is also not disputed that only after the intervention of the Court, petitioners were sent for training in 1998, and the result was published only in 2002 on the intervention of the Court. Therefore, it, cannot be said that petitioners were at fault in not getting training. In these circumstances, the said judgment of Jharkhand Police Association (Supra) supports the case of the petitioner. It is also not disputed that as per the Circular dated 25.6.1999, which is subsequent to the Circular dated 9.7.1993, petitioner's seniority is to be counted from their dates of appointment.
5. In the facts and circumstances of this case, as noticed above, petitioners' case should be considered for having their seniority from the date of their appointment. They should also be considered for giving benefit of. Grade-IV scales after completion of 8/12 years of their service.
Accordingly, the petitioners will be at liberty to file individual representations, on which, the Director, Human Resources Development Department ( Primary Education), Government of Jharkhand, Ranchi ( respondent no. 2) will pass necessary orders in terms of this order within four weeks from the date of receipt/production of the representations.
With these observations and directions, this writ petition is disposed of. No costs."
76. The State preferred intra-court appeal against the order passed by learned Single Judge by filing L.P.A. No. 214 of 2008 and analogous cases [The State of Jharkhand & Ors. Vs. Arun Sinha & Ors.], which was dismissed vide common order dated 6th November, 2012.
- 48 - L.P.A. No. 482 & 478 of 2023
77. For ready reference, the judgment passed in L.P.A. No. 214 of 2008 and analogous cases [The State of Jharkhand & Ors. Vs. Arun Sinha & Ors.], is quoted as under:
"Heard learned counsel for the parties.
These Letters Patent Appeals are decided by this common order since identical question is involved in these appeals.
The writ petitioners-respondents are the appointees of the year 1993-94. When they were appointed, they were untrained teachers. The petitioners' contention is that they requested the appellant-State to send them for training so that they may not be put in the category of untrained teachers. However, they were sent for training in the year 1998, and that too only in view of the order passed by the Hon'ble Supreme Court on 05.9.1997. The petitioners completed the training in the year 1999 but the result was published in the year 2002 only and that too after intervention of the Court. The petitioners, therefore, claimed that they should be given Grade IV scale as they have also completed the requisite period i.e., 8/12 years in service from the date of their appointment. The petitioners also submitted that in view of the Circular of the Government dated 25.6.1999 of Finance Department, Government of Bihar, it has been specifically clarified that the seniority of the untrained primary teachers will remain intact, in any case, even if they do not pass the training examination or if they do not get training.
Learned Single Judge accepted the contention of the writ petitioners in toto and observed that though they were initially appointed as untrained teachers and they were entitled to training which were provided to them by the Government in the year 1998 and that too in view of the order passed by the Hon'ble Supreme Court. The petitioners took and completed the training in the year 1999 but their result was published in the year 2002 and that too when the Court intervened. In these facts and circumstances of the case, the petitioners were not at fault in not getting the training but it was the fault of the State Government. In view of the above
- 49 - L.P.A. No. 482 & 478 of 2023 reasons, the writ petition filed by the petitioners was allowed, hence, the present L.P.As have been preferred by the State.
Learned counsel for the petitioners submitted that the Circular dated 25.6.1999 though provided that seniority will not be affected by training or nontraining as provided under Clause 3(Kha) of the said Circular, that Circular has been withdrawn retrospectively by the decision of the Cabinet of Government, dated 16.9.2000 and, therefore, petitioners are entitled to any relief of being untrained teachers at the time of appointment.
Learned counsel for the appellant-State submitted that so is the position in Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 and relied upon Rule 13 of the said Rules wherein it has been provided that untrained teachers shall not be eligible for promotion to any of the Grade i.e. 1 to 8 and as per the said sub-rule (3) of Rule 13, an untrained teacher may be given Grade 1 from the date on which he becomes trained.
We have considered the submission of the learned counsel for the parties and perused the reasons given in the impugned Judgment.
Learned Single Judge has carefully considered all the issues involved in the petition and found that the petitioners were though appointed in the year 1993-94 but they were not provided training by the fault of the State only and even the training was provided only after passing of the order by Hon'ble Supreme Court on 05.9.1997. Even when the petitioners completed training in the year 1999, their result was not published and after intervention of the Court, that result was published in the year 2002. Therefore, in that fact situation the petitioners are not at fault in obtaining training. Not only this, but in our considered opinion also, once seniority is required to be determined in view of the Circular dated 25.6.1999 and that stands determined because of that Circular and the same could not be made ineffective by the subsequent withdrawal of the said Circular by the State Cabinet with retrospective effect. However, that was not the issue decided by the learned Single Judge as it has been raised by the petitioners but effect of that Circular, which has already been given, cannot be taken away and in the facts and circumstances of the case, we are
- 50 - L.P.A. No. 482 & 478 of 2023 of the considered opinion that there is no merit in these L.P.As. which are, accordingly, dismissed."
78. Against the order passed in the said intra-court appeals the State went to the Hon‟ble Apex Court by filing S.L.A. (Civil) No. 5520-5522 of 2013 in the case of State of Jharkhand & Ors Vs. Arun Sinha & Ors which was also dismissed.
79. Similarly, the series of writ petitions, leading case is Sunil Kumar Bhagat & Ors. Vs. State of Jharkhand & Ors [WPS No. 2547 of 2014] was filed with respect of claim of individual petitioners for grant of Grade-I Scale and seniority from the date of their initial joining as Assistant Teachers in Elementary Schools within the State. These petitioners have relied upon the judgment rendered by this Court in the case of Arun Sinha & others Vrs. State of Jharkhand & others passed in W.P.S. No. 638 of 2006 vide order dated 4.4.2008. The batch of writ petitions was disposed of vide order dated 17.12.2015. The relevant portion of the judgment is quoted as under:
9. This issue relating to seniority from the date of initial joining and grant of Grade-I scale to the Assistant Teacher in Primary school has engaged the attention of this Court in several matters. The respondent- State has in due deference to the ratio laid down in the case of Arun Sinha & others (supra) now taken a policy decision to grant the said benefit as per the terms of the said resolution quoted herein above to individual incumbents. It would now be proper that the cases of individual petitioners who fall within the terms of the resolution dated 14.12.2015, quoted herein above, be
- 51 - L.P.A. No. 482 & 478 of 2023 considered by the respondents- District authorities. The District Superintendent of Education of authority‟s respective districts would examine the individual cases as per the procedure laid down by placing the matter before the District Education Establishment Committee for taking an informed decision in respect of individual claims in accordance with law and the aforesaid policy decision within a reasonable time, preferably 16 weeks from the date of receipt of copy of this order.
10. It would not be out of place to record appreciation for the efforts taken by the State counsels and the respondent-
Department in coming out with the policy resolution, which may possibly reduce institution of large number of cases with similar grievances in this Court.
11. All the writ petitions are accordingly disposed of with the aforesaid observations and directions. Pending I.A.s also stand closed."
80. The State taking into consideration the Bihar Primary School Teachers‟ Rules, 1991; Promotion Rules, 1993 and different circulars/resolutions passed by the State as also the judicial pronouncements as enunciated in the case of Arun Sinha & Ors. Vs. The State of Jharkhand (supra) has after obtaining opinion from the Law Department of State, has come out with resolution as contained in Memo No.3027 dated 14.12.2015.
81. For ready reference, the opinion as sought for by the Law Department and directives, as given in the circular is quoted as under:
14- ekuuh; loksZPp U;k;ky; ds fu.kZ; ds mijkar fof/k foHkkx ls bl fcUnq ij earO; izkIr fd;k x;k fd W.P. (S) No. 638/2006 esa fnukad 04-04-08 dks ikfjr vkns'k ek= ;kfpdk ds oknhx.k ds fy, izHkkoh gksxk vFkok oknhx.k tSls vU; f"k{kdksa ds ekeys esa Hkh ;g vkns'k ykxw gksxkA fof/k foHkkx dk ijke'kZ fuEuor~ gS%&
- 52 - L.P.A. No. 482 & 478 of 2023 "In my view and opinion there may be two important issues for the department to consider now-
(i) Grant of Grade-1 Scale to the writ petitioners and similarly situated others from the date of their appointment and not from the date of completion of their training.
(ii) Grant of Grade-IV Scale to the writ petitioners and similarly situated others from the date of completion of their service of 8/12 years.
So far the issue no. I is concerned, in my view and opinion the said issue may be treated to be conclusively decided upto the level of the Hon'ble Apex Court and not only the writ petitioners but all other similarly situated teachers may be directed to be granted Grade-1 Scale from the date of their appointment and not from the date of completion of their training.
So for the issue no. Il is concerned, the Hon'ble High Court had in the case of Arun Sinha and ors. directed the State Government to consider for giving benefit of Grade-4 Scale after completion of 8/12 years of their service. The Hon'ble Division Bench did not although discuss that issue and concentrated mainly on first issue itself but in view of the dismissal of the LPA and SLP that direction/judgment has attained finality.
It does not transpire from the records as to what decision has been taken after the concerned order of the Hon'ble Court dated 04.04.08 passed in the case of Arun Sinha and ors in the matter of grant of Grade 4 Scale to them.
However, I must point out that with respect to the matter of grant of Grade-4 Scale to the writ petitioners or other similarly situated teachers, the department may very well consider all the aspects including the various provisions i.e. Rule 5,6&7 of the concerned 1993 Rules, (except the condition no. 2 of Rule-4) and find out as to whether the writ petitioners or other similar situated teachers will be entitled to get Grade - 4 Scale after completion of their service of 8/12 years
- 53 - L.P.A. No. 482 & 478 of 2023 if they are treated to be in Grade 1 Scale from the date of their appointment.
15- jktdh;d`r izkjafHkd fo|ky;ksa esa fu;qDr vizf'kf{kr f"k{kdksa dks fu;qfDr dh frfFk ls xzsM&1 ojh;rk iznku djus ds laca/k esa eaf=ifj"kn~ dh cSBd fnukad 08-12-15 esa fuEukafdr izLrkoksa ij Lohd`fr iznku dh xbZ gS& ¼i½ jktdh;d`r izkFkfed fo|ky;ksa esa o'kZ 1987 ,oa 1988 esa jkT; ljdkj ds izko/kkuqlkj eSfVªd izf"kf{kr in ds fo:) fof/kor~ :i ls fu;qDr vizf'kf{kr f"k{kd ,oa laizfr >kj[k.M jkT; vUrxZr izkjafHkd fo|ky;ksa esa dk;Zjr f"k{kdksa dk fu;qfDr dh frfFk ls xzsM&1 esa vkilh ojh;rk fu/kkZfjr dh tk;A ¼ii½ fcgkj izkjafHkd fo|ky; fu;qfDr fu;ekoyh] 1991 ¼;Fkk le;≤ ij la'kksf /kr½ vUrxZr o'kZ 1994 ,oa 1999&2000 esa eSfVªd izf"kf{kr in ds fo:) fof/kor~ :i ls fu;qDr vizf'kf{kr f"k{kd ,oa laizfr >kj[k.M jkT; vUrxZr izkjafHkd fo|ky;ksa esa dk;Zjr f"k{kdksa dk fu;qfDr dh frfFk ls xzsM&1 vkilh ojh;rk fu/kkZfjr dh tk;A ¼iii½ mi;qZDr nksuksa dksfV ds f"k{kdksa dh vkilh ojh;rk dk fu/kkZj.k xzsM&1 esa fu;qDr dh mudh frfFk ds vk/kkj ij djrs gq, vxyh izksUufr jktdh;d`r izkjafHkd fo|ky; f"k{kd izksUufr fu;ekoyh] 1993 ds izko/kkukuqlkj vuqekU; gksxh] c'krsZ fd os izksUufr dh ;ksX;rk j[krs gksaA ¼iv½ mi;qZDr dksfV ds vizf"kf{kr f"k{kdksa dks fu;qfDr dh frfFk ls xzsM&1 esa ojh;rk fu/kkZj.k ds QyLo:i 15-11-2000 ds iwoZ dk dksbZ cdk;k jkf'k vuqekU; ugha gksxkA ¼v½ ;g iwoksZnkgj.k ugha gksxk ,oa blds vk/kkj ij mi;qZDr dafMdk ¼i½ ,oa ¼ii½ dks NksM+dj vU; dksbZ f"k{kd ;Fkk vuqdaik ds vk/kkj ij vizf"kf{kr ds :i esa fu;qDr f"k{kd vkfn xzsM&1 esa lfEefyr gksus ,oa bl vk/kkj ij ojh;rk ikus ds gdnkj ugha gksxa sA ¼vi½ ekuuh; >kj[k.M mPp U;k;ky; }kjk W.P. (S) No. 638/2006 esa ikfjr vkns'k ls izHkkfor gksus okys f"k{kdksa dh lwph fcgkj yksd lsok vk;ksx dh vuq"kalk] f"k{kd in ij fu;qfDr ,oa vgrkZ ds lkFk&lkFk muds Hkfo"; fuf/k ys[kk la[;k ¼GPF½ vafdr djrs gq, ftyk f"k{kk v/kh{kd }kjk rS;kj dh tk;sxh] ftls lacaf/kr mik;qDr ,oa {ks=h; f"k{kk mi&funs'kd }kjk la;qDr :i ls lR;kfir fd;k tk;sxk rFkk bls >kj[k.M ljdkj ds website ij PDF file esa j[kk tk;sxkA bl izdkj rS;kj dh xbZ lwph esa lfEefyr vizf"kf{kr f"k{kdksa dks gh fu;qfDr dh frfFk ls xzsM&1 ds f"k{kd ds :i esa ojh;rk dk ykHk vuqekU; gksxkA ¼vii½ mi;qZDr dksfV ds vizf"kf{kr f"k{kdksa dk xzsM&1 esa osrueku foÙk foHkkx] >kj[k.M ljdkj ds i=kad 4568@fo-] fnukad 05-07-02 ds vuqlkj vuqekU; gksxkA ;g ladYi rRdky izHkko ls ykxw gksxkA
82. It would be apt to mention herein that the private respondents were appointed as Grade I as per the provisions of Appointment Rule 1991 after their appointment there was
- 54 - L.P.A. No. 482 & 478 of 2023 the sole rule for the purpose of consideration of promotion of teachers from I to Grade VIII i.e., Rules, 1993.
83. In the Rules, 1993, Grade I to Grade III are for Matric Trained teachers; Grade IV to VI are Graduate Trained Teachers whereas grade VII and VIII are said to be post of the Headmasters. All the hierarchy carries different pay-scales.
Grade I means Matric Trained Pay-scale. Grade II and Grade III are the senior scale and selection grade scale of Matric Trained Scale respectively.
Grade IV means Graduate Trained Pay-Scale with two Grades i.e., Grade V and Grade VI, which are senior scale and Selection Grade Scale of Trained Graduate Teacher.
Grade VII means Headmaster basic pay scale and Grade VIII is senior scale of Headmaster Cadre.
84. Admittedly, the entry level of private respondents is Matric Trained Teacher in Grade I. The petitioners/appellants herein are direct recruits in Grade IV i.e., entry grade of Graduate Pay-Scale, who were appointed in the year December, 2015 and January, 2016 whereas the private respondents have been granted Graduate Pay-scale by way of promotion vide impugned order dated 28.12.2016, as contained in different Memos giving it retrospective effect from 01.04.2015.
- 55 - L.P.A. No. 482 & 478 of 2023
85. It needs to refer herein that the erstwhile State of Bihar made rule for promotion of the teachers of elementary schools taken over by the Government in the name of "Bihar Taken Over Elementary School Teachers‟ Promotion Rules, 1993"
under proviso to Article 309 of the Constitution of India, making it effective from 01.01.1986. The said Rule was adopted by the State of Jharkhand, after bifurcation.
Relevant provision of the Rules, 1993 is quoted as under:
2.Definitions.- In these Rules, unless there is anything repugnant in the subject or context-
(1) "Establishment Committee" means the committee constituted under Rules;
(2) "Grade" means scale;
(3) "Grade-1" means Matric Trained Basic Scale - (1200-2040); (4) "Grade-2" means Matric Trained Senior Scale - (1400-2600); (5) "Grade-3" means Matric Trained Selection Scale - (1640-2900); (6) "Grade-4" means Trained Arts Graduate Scale Rs. (1640-2900) or Trained Science Graduate Scale (1640-2900); (7) "Grade-5" means Trained Graduate Senior Scale Rs. (2000- 3500);
(8) "Grade-6" means Trained Graduate Selection Scale Rs. (2200- 4000);
(9) "Grade-7" means Middle School's Headmaster basic Scale Rs. (2000-3500);
(10) "Grade-8" means Middle School's Headmaster Senior Scale Rs. (2200-4000);
(11) "Untrained" means those who are not trained as under clause (12);
(12) "Trained" means those who have undergone and passed the following examinations-
(i) Two years' Teachers Training, or
(ii) Dip-in-Ed/B.Ed. Training, or
(iii) One year training in service tenure.
- 56 - L.P.A. No. 482 & 478 of 2023 (13) "Matric Trained" means those persons who have passed matriculation or equivalent examination and are trained; (14) "Trained Graduate" means those persons who are graduates or possess equivalent qualification and are trained; (15) "Trained Post Graduate" means those persons who are post graduates or possess equivalent qualification and are trained. (16) "Fundamental Rules" means the Fundamental Rules framed by Government of India for Central Government Employees.
(vi) District Welfare Officer-Member:
Provided that if none of the officers mentioned at serial (i) to (vi) belong to SC or ST, in that case District Magistrate shall nominate one officer belonging to SC or ST in this Committee. (2) The Establishment Committee shall take all decisions regarding promotion under these Rules.
3.Establishment Committee.- (1) There shall be constituted a District Establishment Committee at district level for promotion of teachers consisting of the following members:
(i) District Magistrate-Chairman.
(ii) Dy. Development Commissioner-Member.
(iii) District Superintendent of Education-Member Secretary.
(iv) District Education Officer-Member.
(v) District Inspectress of Schools-Member.
(vi) District Welfare Officer-Member:
Provided that if none of the officers mentioned at serial (i) to (vi) belong to SC or ST, in that case District Magistrate shall nominate one officer belonging to SC or ST in this Committee. (2) The Establishment Committee shall take all decisions regarding promotion under these Rules.
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;
- 57 - L.P.A. No. 482 & 478 of 2023 (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.
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-I in the event of promotion from Grade-1 to the 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:
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.
6.Availability of posts.- Establishment Committee shall calculate for each year the vacant posts as on 1st 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. (3) 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.
- 58 - L.P.A. No. 482 & 478 of 2023 (4) For promotion to Grade-4 and 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 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:
- 59 - L.P.A. No. 482 & 478 of 2023 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;
(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.
8.Inter-se seniority in the same grade.- Inter seseniority of teachers work-in the same grade shall be decided under the following standard-
(1) The date of getting the said grade shall be the basis for determining the seniority. If the date of getting the grade is the same, then date of getting lower grade shall be the basis and accordingly date of getting lowest grade, where-ever required, shall be the basis:
(2) In case of the date of getting the grade is the same, date of birth shall be the basis;
(3) In case of date of birth being the same, in that case Inter-
se seniority shall be determined according to the alphabetical order of their names in Roman script.‟
86. Provision of establishment committee has also been carved out therein for the purpose of promotion, which is headed by District Magistrate and the committee is delegated with the power to grant promotion to one or the other eligible teachers. The condition of promotion has been provided under Rule 4 thereof.
87. Rule 5 of the Rules, 1993 deals with minimum educational and training qualifications and minimum tenure of service wherein it has been stipulated that 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 is required. For promotion to Grade-4-
- 60 - L.P.A. No. 482 & 478 of 2023 Trained Graduate and minimum 8 years of service in Grade-I in the event of promotion from Grade-1 to the Grade-4 in case of non-availability of teachers in Grade-3 and Grade-2. 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. 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.
88. Rule 6 deals with the provision of availability of post‟s for promotion, wherein provision has been made that the Establishment Committee shall calculate for each year the vacant posts as on 1st April of that year for promotion.
89. Rule 7 deals with the provision of draft of seniority list for promotion, wherein it has been provided that by the end of the month of January of each year, the draft of the 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 the District Superintendent of Education.
90. Rule 8 provides inter-se seniority in the same grade, upon which much emphasis has been laid down. It has been stated as under Rule 8 Inter se seniority of teachers working
- 61 - L.P.A. No. 482 & 478 of 2023 in the same grade shall be decided in the manner that - (1) the date of getting the said grade shall be the basis for determining the seniority. If the date of getting the grade is the same, then date of getting lower grade shall be the basis and accordingly date of getting lowest grade, whereever required, shall be the basis; (2) In case of the date of getting the grade is the same, date of birth shall be the basis; (3) In case of date of birth being the same, in that case inter- se seniority shall be determined according to the alphabetical order of their names in Roman script.‟
91. This Court needs to refer herein that the provision of Rule 8 is with respect to inter se seniority in a Grade of the promotes having no nexus of preparation of seniority list of the „Direct Recruits‟ and the „Promotees‟, as the case herein. Such observation is being made by this Court due to the reason that when the Promotion Rule, 1993 was enacted there was no mode of direct recruitment to the post of „Trained Graduate Teacher‟ in Grade IV rather the decision has been taken for fulfilling the post through direct recruitment only after coming into effect of Right of Children to Free and Compulsory Education Act, 2009 and in order to achieve the intent and object of the said Act, the Jharkhand Primary School Teacher Appointment Rules, 2012 was enacted
- 62 - L.P.A. No. 482 & 478 of 2023 for making direct recruitment on the post of Graduate Trained Teacher in Grade IV.
92. Rule 9 of Rules, 2012 thereof stipulates that all the vacancies of Class 1 to 5 will be filled amongst Intermediate Trained and for classed 6 to 8, 50% vacancies will be filled up by Graduate Trained Teachers through direct recruitment process.
93. The basic purpose of Right of Children to Free and Compulsory Education Act, 2009, was of ensuring every child‟s access to quality education. It is a legislative initiative that seeks to make education a fundamental right for every child aged 6 to 14 years in India. The Act emphasizes the importance of free and compulsory education, focusing on inclusivity, equity, and quality.
94. It is admitted case that the writ petitioners-appellants have been appointed on the post of Graduate Trained Teacher in Grade IV to fulfill the object and intent of Right of Children to Free and Compulsory Education Act, 2009 pursuant to which Jharkhand Primary School Teacher Appointment Rules, 2012 was framed.
95. The private respondents have been inducted in the service and thereafter, according to them, they are entitled to be granted to promotion to different Grades from the date of their entitlement, but the same has not been granted.
- 63 - L.P.A. No. 482 & 478 of 2023
96. While on the other hand, the case of the appellants-writ petitioners, is that they have been appointed through direct mode of recruitment on the basis of 50% quota, in December, 2015 and January, 2016, as provided under the provisions of Rule, 2012, as Graduate Trained Teacher in Grade IV.
97. We have already noted above that posts of primary teachers are in three Cadres. At the cost of repetition, it is again being referred herein that first cadre is of - Matric Trained teachers; second cadre i.e., Grade IV to VI are of Graduate Trained Teachers whereas third Cadre i.e., Grade VII and VIII are said to be post of the Headmasters. All the hierarchy of posts carries different pay-scales.
98. In Matric Trained Scale, Grade I is the basic cadre Matric Trained Pay-scale whereas Grade II and Grade III are the senior scale and selection grade scale respectively.
99. In Graduate Trained Scale, Grade IV is the basic cadre whereas two Grade V and Grade VI, are senior scale and Selection Grade Scale respectively of Graduate Pay Scale.
100. In Headmaster Cadre, Grade VII is the basic Grade whereas Grade VIII is senior scale of Headmaster pay-scale.
101. Meaning thereby, entry Grade for Matric Trained Scale is Grade I, for Graduate Trained Scale Grade IV is the basic Grade whereas for Headmaster Cade Grade VII is the basic Grade.
- 64 - L.P.A. No. 482 & 478 of 2023
102. Prior to coming into effect of Rules, 2012, primary teachers were to be appointed in Grade I and as per Rules, 1993 they were supposed to be granted promotion from Grade I to Grade VIII, as per their entitlement and there was no issue of inter se seniority between the promotes and direct recruits. But after coming into effect of Rules, 2012, there was direct appointment on the basic cadre of „Graduate Trained Teacher‟ in Grade IV.
103. Admittedly, the private respondents were not promoted the day when the writ petitioners were appointed and inducted in service in Grade IV through direct mode i.e., in December, 2015 and January, 2016, the basic post of Graduate Trained Teacher. But, the private respondents have been promoted vide order dated 28.12.2016 but with retrospective effect from 01.04.2015.
104. Being aggrieved with such promotion of granting promotion with retrospective effect, the writ petitioners have approached this Court taking the ground that promotion with retrospective effect has been granted to the private respondents only with a purpose to make the directs recruits like petitioners junior in the cadre though they borne in the cadre prior to private respondents and have been inducted in service when the private respondents did not borne in service.
- 65 - L.P.A. No. 482 & 478 of 2023
105. But, the learned Single Judge taking into consideration the long length of service of the interveners-private respondents, came to the conclusion that the private respondents are treated to be senior to that of direct recruits and further learned Single Judge took note of the law laid down in the case of Arun Sinha & Ors Vs. State of Jharkhand (supra) and Sunil Kumar Bhagat & Ors. Vs. The State of Jharkhand & Ors. (supra) and did not interfere with the order of promotion which was given with retrospective effect to the private respondents.
106. This Court, on the basis of aforesaid facts, submissions and law laid down by Court of law, is of the view that following issues are required to be answered for adjudication of lis:
"(I).Whether grant of retrospective promotion w.e.f.
01.04.2015 vide office order dated 28.12.2016 to the private respondents in Grade IV, based upon the provision of Rules, 1993, after appointment of direct recruits in December, 2015 in Grade IV, under Rules, 2012, can be said to be justified which allegedly have adverse impact to the interest in particular inter se seniority, on the direct recruits?"
(II).Whether merely because the private respondents have been inducted in service in the year 1993-94, and as such by taking their long length of service can they be extended the benefit of retrospective promotion to Grade IV by treating them
- 66 - L.P.A. No. 482 & 478 of 2023 to be senior, over and above, the direct recruits, who have been appointed by virtue of enactment of new Rules, 2012 directly on Grade IV?
(III).Whether in the facts and circumstances of the case, after coming into effect of Rules, 2012, the retrospective promotion granted under provisions of Rule 8 of Rules, 1993 to the private respondents can be said to be justified without taking care of inter se seniority of the direct recruits?
(IV).Whether grant of promotion in view of provision of Rule 8 of Rules, 1993 can be a rider upon the direct recruits for considering them junior to that of promotees, the private respondents?
(V).Whether the judgments rendered by this Court in the case of the Arun Sinha (supra) and Sunil Kumar Bhagat (supra), reliance upon which has been placed by learned Single Judge also while dismissing the writ petition, are applicable in the facts and circumstances of the case, where the core issue is of inter se seniority between the writ petitioners [direct recruits] and the private respondents [promotees]?
(VI).Whether the policy decision taken by the State vide resolution 26.08.2021, without taking into consideration the adverse impact of the same upon the direct recruits after coming into effect of Rules, 2012, can be said to be justified and sustainable in the eye of law?"
- 67 - L.P.A. No. 482 & 478 of 2023
107. Since all the issues are inter-linked, and as such they are taken up together to be answered.
108. The core issue involved in the lis is the retrospective promotion granted to the private respondents without taking care of the inter se seniority of the direct recruits.
109. So far the issue of grant of retrospective promotion/notional promotion is concerned, there is no bar to grant retrospective promotion/notional promotion with effect from the date of one‟s entitlement and the vacancy being available and particularly the fact when delay is caused at the instance of the State. There is nothing wrong in granting retrospective promotion. Therefore, the issue of granting retrospective promotion, if such occasion arises, is no more res integra.
110. But if the retrospective promotion is granted causing any adversity to other similarly situated persons, then such retrospective promotion cannot be said to be justified.
111. Here, the situation is otherwise as because of grant of retrospective promotion to private respondents who have been promoted by virtue of the Rules, 1993 is causing adverse interest upon the inter se seniority of the direct recruits, the writ petitioners herein, who have been appointed as per new Rules, 2012.
- 68 - L.P.A. No. 482 & 478 of 2023
112. At this juncture, the judgments rendered by this Court rendered in the case of Arun Sinha (supra), Sunil Kumar Bhagat (supra) and Nand Kishor Nayak (supra) are required to be referred herein, as much reliance have been placed by the parties upon these judgments and even while framing the policy decision dated 26.08.2021, which is under challenge also, the State has taken reference of judgment rendered in the case of Nand Kishor Nayak (supra) and the learned Single Judge while passing the judgment in Nand Kishor Nayak (supra) has put reliance upon the judgment rendered in the case of Arun Sinha (supra), which has been affirmed up-to Hon‟ble Apex Court.
113. Therefore, this Court first deems it fit and proper to again go to the judgment rendered in the case of Arun Sinha (supra), wherefrom it is evident that prayer has been made for grant of Grade IV as they have also completed the requisite/minimum period of 8/12 years in service. Submission was made therein that since the petitioners were not at fault in not acquiring training, therefore, the petitioners should be given grade IV scale.
114. Learned counsel for the State on the other hand taken the ground that it is true that on the basis of merit list and ranking list of the petitioners, they were appointed against matric trained pay-scale in accordance with different
- 69 - L.P.A. No. 482 & 478 of 2023 orders/directions of the State Government, and that as per the said Circular dated 25.6.1999, the seniority is to be counted from the date of appointment, but in view of paragraph 13 of GSR 28 dated 9.7.1993, petitioners are entitled for, grade 1 pay-scale from the date of passing Teachers Training Examination i.c. 3.5.2002.
115. The learned Single judge taking note of the fact that petitioners were appointed in September/October 1994 under the matric trained scale and were subsequently, sent for training in 1998, and the result was published only in 2002 on the intervention of the Court, therefore, the petitioners were not at fault in not getting training. Therefore, it was held that the petitioners' case should be considered for having their seniority from the date of their appointment. They should also be considered for giving benefit of. Grade-IV scales after completion of 8/12 years of their service. Accordingly, the petitioners were granted liberty to file individual representations, on which, the Director, Human Resources Development Department (Primary Education), Government of Jharkhand, Ranchi was directed to pass necessary orders in terms of the order passed by writ Court.
116. The order passed by writ Court in the case of Arun Sinha (supra) attained finality up-to Hon‟ble Supreme Court.
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117. From perusal of judgment passed in Arun Sinha (supra), it is evident that learned Court has held that case of the petitioners, who were appointed sometimes in the year 1993-94, may be considered for having their seniority from the date of their initial appointment and not from the date of completion of training, as it is the State because of which the teachers training of the petitioners could not be completed in time and result of which was also published after much delay. It was further directed to consider the case of the petitioners for giving benefit of. Grade-IV scales after completion of 8/12 years of their service.
118. Similar prayer was made in batch of writ petitions leading case is Sunil Kumar Bhagat (supra), wherein allegedly the petitioners were appointed in the year 1987/1988/1994 or 1999-2000 and prayed for grant of Grade-I Scale and seniority from the date of their initial joining as Assistant Teachers in Elementary Schools within the State relying upon the judgment rendered by this Court in the case of Arun Sinha & others Vrs. State of Jharkhand & others passed in W.P.S. No. 638 of 2006 dated 04.04.2008 on the ground that delay in obtaining the Teachers' Training qualification was not on account of their fault.
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119. During pendency of the writ petition, the respondent- Secretary, Human Resources Development Department, Government of Jharkhand was also asked to take a call on the necessity to issue general executive instructions/circulars to all the District authorities laying down clear-cut guidelines to deal with the matters, which are covered by the ratio laid down in the case of Arun Sinha & others (Supra).
120. In terms thereof, the resolution bearing memo no. 3027 dated 14.12.2015 containing the policy decision of the State on the aforesaid issue in terms of the ratio laid down in the case of Arun Sinha & others (Supra) was brought on record, wherein taking note of the fact that ratio laid down in the case of Arun Sinha & others (Supra) has been affirmed up-to the Hon‟ble Supreme Court, laid down guidelines, wherein it is decided that teachers appointed in the year 1987 and 1988 shall be entitled to Grade I from the date of their initial appointment and inter se seniority shall be counted from the date of their initial appointment. Further, the teachers appointed in the year 1991, 1994, 1999-2000 shall be entitled to Grade I from the date of their initial appointment and inter se seniority shall be counted from the date of their initial appointment. It was further decided that the inter se seniority amongst above category of teachers will be decided on basis of the date of their initial appointment
- 72 - L.P.A. No. 482 & 478 of 2023 and further promotion shall be granted on the basis of Promotion Rules, 1993.
121. In terms of the aforesaid circular/resolution, the writ petition was disposed of holding that the cases of individual petitioners who fall within the terms of the resolution dated 14.12.2015 be considered by the respondents- District authorities. The District Superintendent of Education of respective districts would examine the individual cases as per the procedure laid down by placing the matter before the District Education Establishment Committee for taking an informed decision in respect of individual claims in accordance with law and the aforesaid policy decision within a reasonable time, preferably 16 weeks from the date of receipt of copy of this order.
122. There is no dispute about the aforesaid proposition of law laid down in the case of Arun Sinha (supra), Sunil Kumar Bhagat (supra) since no issue of adversity being caused to the direct recruits was there, rather, the in the case of Arun Sinha (supra) prayer was made to grant Grade IV as they have also completed the requisite period 8/12 years in service on the ground that petitioners were not at fault in not acquiring training. State had taken the ground that the seniority is to be counted from the date of appointment, but in view of paragraph 13 of GSR 28 dated 9.7.1993,
- 73 - L.P.A. No. 482 & 478 of 2023 petitioners are entitled for Grade 1 pay-scale from the date of passing Teachers Training Examination i.c. 3.5.2002. However, the learned Single judge considering the fact that the petitioners were not at fault in not getting training held that the petitioners' case should be considered for having their seniority from the date of their appointment. They should also be considered for giving benefit of. Grade-IV scales after completion of 8/12 years of their service.
123. Similar prayer was made in batch of writ petitions leading case is Sunil Kumar Bhagat (supra), wherein the petitioners, who were appointed in the year 1987/1988/1994 or 1999-2000, made prayed for grant of Grade-I Scale and seniority from the date of their initial joining as Assistant Teachers by relying upon the judgment rendered by this Court in the case of Arun Sinha & others Vrs. State of Jharkhand & others (supra). During pendency of the case, on the direction of the Court, resolution dated 14.12.2015 was brought on record by the State, wherein it has been decided that teachers appointed in the year 1987 and 1988 shall be entitled to Grade I from the date of their initial appointment and inter se seniority shall be counted from the date of their initial appointment. In terms of the aforesaid circular/resolution, the writ petition was disposed of.
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124. Admittedly, the day when the judgment was passed, in the case of Arun Sinha (supra) there was no existence of Rules, 2012 carving out a provision for direct recruitment in Grade IV on the post of Graduate Trained Teacher.
125. This Court, therefore, is of the view that the reliance which has been placed and taken note of by the learned Single Judge in the case of Arun Sinha (supra) stating that the issue of retrospectivity has been dealt with in those cases, and on the principle laid down therein the private respondents have been granted retrospective promotion, is not acceptable and we are not in agreement with such stand reason being that either in the case of Arun Sinha (supra) or in the case of Sunil Kumar Bhagat (supra) there was no issue of adverse interest of the party concerned or the issue of adverse interest of direct recruits, as the case herein.
126. But the authority concerned without taking note of these facts granted promotion to private respondents vide memo dated 28.12.2016 with retrospective effect from 01.04.2015.
127. It is settled position of law that the retrospective promotion without taking into consideration the predicament of the others is not permissible reason being that when a third party interest is being jeopardized then the
- 75 - L.P.A. No. 482 & 478 of 2023 circumspection is to be made so as not to infringe the right of others.
128. While granting retrospective promotion, the matter would have different if the right of none of the parties is being infringed, then the retrospective promotion can be granted.
129. So far as the argument of emphasizing Rule 8 of the Rules, 1993 is concerned the same has already been referred above, which deals with the inter se seniority in the same Grade, which speaks that date of getting the said grade shall be the basis for determining the seniority. If the date of getting the Grade is the same, then date of getting lower Grade shall be the basis and accordingly date of getting lowest grade, where-ever required, shall be the basis.
130. It is evident therefrom that the Rule 8 of Rules, 1993 only speaks with respect of interest of the promotes of inter se seniority of same cadre and same is not related with the inter se seniority of „promotees‟ from I to Grade IV vis-à-vis direct recruits under Grade IV appointed on the post of „Graduate Trained Teacher‟, since at the time when the Rules, 1993 was formulated, there was no concept of direct recruits on the post of Trained Graduate Teacher in Grade IV directly rather the concept of direct appointment of Trained Graduate Teacher in Grade IV comes only after coming into effect of Right of Children to Free and Compulsory Education Act,
- 76 - L.P.A. No. 482 & 478 of 2023 2009 in terms of which the Jharkhand Primary School Teacher Appointment Rules, 2012 was framed by the State of Jharkhand for making direct recruitment on the post of Graduate Trained Teacher in Grade IV.
131. Therefore, the contention which has been raised that whatever submission has been made that in terms of Rule 8 is having no bearing with respect to the present issue.
132. Furthermore, the Rule 8 of Rules, 1993 cannot be read to be in isolation without taking into consideration the interest of direct recruits, who have been appointed in terms of provisions of Rules, 2012.
133. The issue of infirmity in Rules, 1993, in particular Rule 8 is also not there and based upon that if the promotion has been granted is also not the issue but the concerned of this Court is that while granting such promotion can it said to be justified action on the part of the State in depriving the right of the seniority of direct recruits, who admittedly have come in the Cadre prior to that of promotes, and by giving retrospective promotion the direct recruits [writ petitioners] have been lowered down in seniority list which certainly hamper the future promotion of direct recruits.
134. The law is also well settled with retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst
- 77 - L.P.A. No. 482 & 478 of 2023 members of the same grade has to be counted from the date of initial entry into the grade, reference in this regard be made to the judgment rendered in the case of Ganga Vishan Gujarati & Ors. Vs. State of Rajasthan & Ors. [(2019) 16 SCC 28], wherein the Hon‟ble Apex Court in the background of the factual aspect has laid down following proposition of law, as under paragraph 45 which reads as under:
45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339] . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath [State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070] and State of Uttaranchal v. Dinesh Kumar Sharma [State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 :
(2007) 1 SCC (L&S) 594] . In Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , this Court revisited the precedents on the subject and observed : (SCC pp. 281-82, para 45) "45. ... (i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in
- 78 - L.P.A. No. 482 & 478 of 2023 a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S) 690] .
[Emphasis supplied]
135. The Hon‟ble Apex Court in the case of Ganga Vishan Gujarati & Ors. Vs. State of Rajasthan & Ors. (supra) taking reference of the judgment rendered by Constitution Bench of Hon‟ble Apex Court in the case of Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339], in which, it has been held that inter se
- 79 - L.P.A. No. 482 & 478 of 2023 seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
136. The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.
137. Further reference in this regard be made to the judgment rendered in the case of Nani Sha & Ors. Vs. State of Arunachal Pradesh & Ors. [(2007) 15 SCC 406], wherein in the similar fact situation, the appellants were promoted from the post of Forest Rangers to Assistant
- 80 - L.P.A. No. 482 & 478 of 2023 Conservator of Forests in the year 2002 in accordance with Arunachal Pradesh Forest Service Rules, but they were given seniority retrospectively from 1994 which made them senior to direct recruits who had been appointed in the year 1996. Legal issue involved was whether the Rules prescribed any quota for promotees, under which the promotees should get retrospective seniority according to their quota. Rule 5(α) provided that 50% of substantive "vacancies" which occur from time to time in the authorised permanent strength of the service shall be filled by direct recruitment. Similarly, Rule 5(b) provided that the remaining substantive "vacancies" should be filled by promotion. Besides, Rule 25(c) provided that "... relative seniority of direct recruits and of promotees shall be determined according to rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion under Rule 5.
138. From the above provision, the High Court inferred that there was no quota between the promotes and direct recruits in the un-amended Rule 5. The High Court therefore held that promotes who were promoted in 2002, could not be given seniority retrospectively from 1994 when they were still working on the feeder post of Forest Ranger. Aggrieved thereof, the appellant moved the Supreme Court. The Hon‟ble
- 81 - L.P.A. No. 482 & 478 of 2023 Supreme Court held that the High Court was right in holding that promote appellants could not be given seniority from the date they were not even borne in the cadre. The appellants were working under the direct recruits right from 1996 till 2002. It would therefore, be unfair to allow appellants to steal a march over direct appointees under whom they worked practically for eight years. There is no justification in upsetting the whole balance at this point of time.
139. For ready reference, the relevant paragraphs of the judgment is quoted as under:
3. The appeal has been filed by five appellants challenging the judgment of the Division Bench of the Gauhati High Court whereby the judgment of the learned Single Judge of the High Court was confirmed. The learned Single Judge had allowed the writ petition filed by the respondents herein. In the writ petition the respondents herein, who are the directly appointed Assistant Conservator of Forests (hereinafter referred to as "ACF", for short) had challenged an Order passed by the State of Arunachal Pradesh dated 8-6-2004 vide No. FOR 376/E(A)/2001/4901-61 granting retrospective effect promotions to the appellants herein with effect from 2-
11-1994. With that retrospective effect Respondents 3 to 7 herein became junior to the appellants since they were all appointed in the year 1996 after direct examination to the post of ACF. The learned Judge found that giving such retrospective effect would be illegal and on the date concerned they were not even borne on the cadre of ACF and were only serving as Range Forest Officer. He also found that in the unamended Rule 5 which provided for method of recruitment, there was no 50:50 quota for the direct recruits and the promotees, which quota came to be introduced only by way of an amendment effected to the
- 82 - L.P.A. No. 482 & 478 of 2023 Arunachal Pradesh Forest Rules vide Notification No. FOR.391/E-A/90/32343 dated 24-9-1999 and as such even if the respondents herein were given more than 50% posts in the cadre of ACF, it was permissible and as such the promotions made of the appellants herein for the first time in the year 2001 could not be dated back by giving retrospective effect from the year 1994.
4. In order to understand the controversy some facts would be necessary. All the present appellants herein started their career in the post of Forest Rangers and after their training in the Forest Rangers College, Kurseong, they were appointed as Forest Rangers with effect from 7-7-1984. The post of Forest Rangers is the feeder post for the post of ACF. There are service rules for governing the service conditions called the Arunachal Pradesh Forest Service Rules. These Rules provide, inter alia, that a Forest Ranger would have to put in five years of service before being promoted to the post of ACF. In that way the appellants herein had become entitled for being considered for promotion by 1989. They were, however, not promoted in the year 1989 and were in fact promoted on 10-6-2002. However, in the meantime the respondents herein were selected after the competitive examination and were appointed in the year 1996. Naturally, the respondents herein were senior to the appellants in the cadre of ACF. The Government on account of the representations made constituted another Departmental Promotion Committee (hereinafter referred to as "DPC", for short) and the present appellants were awarded the notional promotion with retrospective effect i.e. from December 1994. This Order was passed on 20-5-2004. Because of this Order all the appellants would become senior to all the directly appointed respondents and for this precise reason the said Order came to be challenged before the Gauhati High Court which challenge was accepted by the learned Single Judge and the judgment of the learned Single Judge was confirmed by the Division Bench which has necessitated the present appellants to come before us.
- 83 - L.P.A. No. 482 & 478 of 2023
13. Reverting back to the effect of the proviso, we do not find anywhere any such intention to apply the proviso with retrospective effect. In order to make a provision applicable with retrospective effect, it has to be specifically expressed in the provision. We do not find such an expression in the said proviso. Nothing had stopped the Government before amending the Rule to word it specifically, making it retrospective. That was not done and we are not prepared to hold that the Rule is retrospective. Secondly, we cannot countenance the argument that the Rule has a clarificatory nature. The Rule, for the first time, creates a quota and thus crystallises the rights of the direct appointees and the promotees which was not there earlier. It, therefore, cannot be viewed as a clarificatory amendment. Again whether the amendment is clarificatory or not would depend upon the language of the provision as also the other Rules. We have examined the Rules which did not suggest that there was any quota existing as such. On the other hand we see Rule 25 which is a Rule regarding seniority and more particularly Rule 25(c). It is apparent from the language of the Rule that the Government thought otherwise. Rule 25(c) is as under:
"25. (c) The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion under Rule 5."
This language suggests that the only quota that was contemplated was as per Rule 5 which we have already explained in the earlier part of the judgment which suggests the 50% quota only in the "substantive vacancies which occurred from time to time" and not the whole vacancies in the cadre. We are, therefore, unable to accept the argument of the learned counsel for the appellants.
14. Therefore, one thing is certain that the appellants did not have right to claim a retrospective seniority, particularly over
- 84 - L.P.A. No. 482 & 478 of 2023 and above the respondents who had been working in the post of ACF right from July 1996.
15. This Court in a reported judgment in State of Uttaranchal v. Dinesh Kumar Sharma [(2007) 1 SCC 683 :
(2007) 1 SCC (L&S) 594] has clearly held that the seniority is to be reckoned not from the day when the vacancy arose but from the date on which the appointment is made to the post.
There this Court was interpreting Rules 17 and 21 of the U.P. Agriculture Group B Service Rules, 1995 and Rule 8 of the U.P. Government Servants' Seniority Rules, 1991. This Court disapproved the stance taken by the High Court that the directions should have been given not from the date of appointment but with retrospective effect when the vacancy arose. The following observations in para 34 are speaking and would close the issue: (SCC pp. 691-92) "34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-1996 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4 SCC 456 :
1998 SCC (L&S) 1156] ."
16. Lastly, the High Court has specifically rejected the claim of the appellants on another ground, namely, that the appellants were not borne in the cadre of ACF on the date from which they have been given the seniority. We are in complete agreement with the High Court, particularly in view of the decision of this Court in State of Bihar v. Akhouri Sachindra Nath [1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070 : (1991) 16 ATC 936] which decision was reiterated in State of Bihar v. Bateshwar Sharma [(1997) 4 SCC 424 :
- 85 - L.P.A. No. 482 & 478 of 2023 1997 SCC (L&S) 975] . We do not want to burden this judgment with further reported decisions. However, the same view has been taken in another reported decision of this Court in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P. [(2006) 10 SCC 346 : (2007) 1 SCC (L&S) 116 : JT (2006) 12 SC 513] where in para 18 this Court has taken a view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely affecting those who were appointed validly in the meantime.
17. There is still one another reason for our concurring with the High Court's judgments. There cannot be any dispute that all through right from 1996 when the respondents were appointed till 2002, the appellants were working under them in capacity of the Range Forest Officers; the appellants came in those posts and started exercising the powers and duties of the post of ACF only from 2002. It would be, therefore, very unfair to allow the appellants to steal a march over the direct appointees under whom they worked practically for eight years. On this ground we concur with the High Court that at this point of time there would be no justification in upsetting the whole balance.
[Emphasis supplied]
140. In the case of Sk. Abdul Rashid & Ors. Vs. State of Jammu & Kashmir [(2008) 1 SCC 722], the Hon‟ble Apex Court taking note of catena of judgments passed by Hon‟ble Apex Court held that retrospective promotion in this case having effect of conferring higher seniority on private respondents vis-à-vis appellants, such retrospective promotion was against the statutory rules, therefore, set aside the impugned judgment.
- 86 - L.P.A. No. 482 & 478 of 2023
141. For ready reference, the relevant paragraphs of the judgment is quoted as under:
16. In State of Bihar v. Akhouri Sachindra Nath [1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070 : (1991) 16 ATC 936] this Court held : (SCC p. 342, para 12) "12. ... It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service.
17. In Kaushal Kishore Singh v. Dy. Director of Education [(2002) 9 SCC 634 : 2002 SCC (L&S) 1090] this Court stated the law, thus : (SCC p. 635, para 5) "5. The claim of seniority of the employee is always determined in any particular grade or cadre and it is not the law that seniority in one grade or cadre would be dependent on the seniority in another grade or cadre."
18. In State of Uttaranchal v. Dinesh Kumar Sharma [(2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] it was opined : (SCC pp. 691-92, para 34) "34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-1996 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] ."
19. Similarly, although the statute provides for grant of officiating promotion, but the same is not conducive in the sense
- 87 - L.P.A. No. 482 & 478 of 2023 that even after getting officiating promotion, one may be reverted to the original post held by him. We do not mean to say that the seniority would be reckoned from the date of confirmation but we only intend to point out that the Rules having been provided for officiating promotion, the learned Single Judge was correct in taking that factor also into consideration for the purpose of determining the validity of the impugned order before the High Court. The said order dated 3-12-1985 even otherwise appears to be mala fide having been passed for unauthorised purpose. If the said order dated 3-12-1985 is read with the earlier one being dated 1-8-1985, the intention of the Government to favour the private respondents herein becomes explicit. It is not expected of a Government to brazenly favour one set of employees so as to defeat the bona fide claim of the other set of employees. We, therefore, are of the opinion, that the impugned judgment cannot be sustained which is set aside accordingly. The appeals are allowed.
142. It is, thus, evident by going through the aforesaid judgment that retrospective promotion is permissible but if the same is causing adverse impact upon the others, the same is not permissible and further the retrospective promotion cannot be granted from the date when the concerned employee has not taken birth in the cadre.
143. Adverting to the factual aspect of the present case, it is admitted case of the private respondents that they have been promoted vide issuance of notification dated 28.12.2016 with retrospective effect from 01.04.2015 but in the meanwhile, the writ petitioners-appellants have been appointed through direct mode in pursuance to the advertisement floated under the Rules, 2012. They have been inducted in the cadre
- 88 - L.P.A. No. 482 & 478 of 2023 through direct mode of recruitment w.e.f. December, 2015 and January, 2016 but by granting retrospective promotion w.e.f. 01.04.2015, the private respondents have been made senior to that of direct recruits; meaning thereby they have been inducted in service the day when the private respondents did not born in the cadre.
144. Therefore, the law laid down by Hon‟ble Apex Court in the judgment rendered hereinabove in the case of Ganga Vishan Gujarati & Ors. Vs. State of Rajasthan & Ors. (supra); Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra (supra); Nani Sha & Ors. Vs. State of Arunachal Pradesh & Ors.(supra) and Sk. Abdul Rashid & Ors. Vs. State of Jammu & Kashmir (supra), the retrospective promotion granted in favour of the private respondents vide order dated 28.12.2016 w.e.f. 01.04.2015 causing adverse impact upon the direct recruits cannot be said to be justified and requires interference by this Court.
145. The writ petitioners have also challenged the policy decision as contained in Memo No. 619 (Vidhi) dated 26.08.2021 issued by Joint Secretary to the Government, School Education and Literacy Department, Govt. of Jharkhand, whereby a decision has been taken for giving
- 89 - L.P.A. No. 482 & 478 of 2023 promotion to the teachers, who are working in Grade-3, 4 and 7, on notional basis and further decision has been taken to grant promotion with retrospective effect from the date of availability of vacancy.
146. The said policy decision has been taken by the State on the strength of direction passed by learned writ Court in W.P.(S) No. 7392 of 2017 [Nand Kishor Nayak Vs. State of Jharkhand & Ors] disposed of vide order dated 26.09.2018, wherein prayer has been made for direction upon the respondents-State to pay them monetary benefits upon grant of Grade-I from the date of appointment and further grade-II, as per the decision of the Hon'ble Court, passed in W.P.(S)No.638 of 2006 (Arun Sinha & ors. vs. the State of Jharkhand & ors.). The learned Single Judge after hearing the parties directed the State to take a uniform decision for extending the actual benefits of promotion to the petitioners.
147. For ready reference, the relevant portion of order passed in Nand Kishor Nayak Vs. State of Jharkhand & Ors (supra) is quoted as under:
"The petitioners have approached this Hon'ble Court with a prayer for direction upon the respondents to pay them monetary benefits upon grant of Grade-I from the date of appointment and further grade-II, as per the decision of the Hon'ble Court, passed in W.P.(S)No.638 of 2006 (Arun Sinha & ors. vs. the State of Jharkhand & ors.) which has been affirmed in L.P.A.No.214 of 2008 and analogous cases and also up to
- 90 - L.P.A. No. 482 & 478 of 2023 the Hon'ble Supreme Court and in compliance of said judgment, the circular of the Govt. 2 vide memo No.3027 dated 14.12.2015 issued by the Directorate of School Education & Literacy, Govt. of Jharkhand, as the promotion in Grade II has already been granted vide Memo No.1683 dated 15.05.2017.
2. The factual exposition as has been delineated in the writ petition is that the petitioners are working as Assistant Teachers in the district of Bokaro and they have joined their respective posts on the different dates in 1994 & 1999 but they have been denied the monetary benefits and even the notional benefits, though they were entitled for the same in view of resolution of the State Govt. dated 14.12.2015. The issue regarding grant of monetary benefits to the trained/untrained teachers fell for consideration before this Hon'ble Court in W.P.(S)No.638 of 2006 and this Hon'ble Court vide its order dated 04.04.2008 had observed that in view of earlier decisions of this Hon'ble Court in other cases particularly, in W.P.(S)No.6264 of 2005 (Jharkhand Police Association Vs. State of Jharkhand), the matric trained/untrained teachers are also entitled for Grade-I scale from the date of their initial appointment. The order passed in W.P.(S)No.638 of 2006 was affirmed by the Hon'ble Division Bench of this Court in LPA No.214 of 2008 and the same was also affirmed upto the Hon'ble Apex Court in SLP No.5520- 5522 of 2013. In view of the fact that the order passed in W.P.(S)No.638 of 2006 was affirmed upto the Hon'ble Apex Court, the State of Jharkhand came-out with a resolution dated 14.12.2015, issued under the pen and signature of the Secretary, School Education & Literacy Department, Govt. of Jharkhand granting therein the matric trained scale to the teachers from date of their initial appointment in case of their promotion to Grade-I and II. Though the issue is set at rest and it is no more res-integra, the same was not implemented by the State Govt. in true letter and spirit. Though the petitioners were granted Grade-I and II from the date of their initial appointment but they were
- 91 - L.P.A. No. 482 & 478 of 2023 denied the monetary benefits, which is dehors the rules. Aggrieved by the same, the petitioners represented before the respondent No.4 but no orders have been passed till date and as such, petitioners have been constrained to knock the door of this Hon'ble Court.
3. Mr. Amit Kumar Tiwari, learned Counsel appearing for the petitioners strenuously urges that issue involved in this case is no more resintegra and the same is set at rest by the Hon'ble Apex Court. In view of the decision of the Hon'ble Apex Court, the State has also come out with a resolution dated 14.12.2015 but the same has not been implemented in true letter and spirit and as such, a direction be given to the respondents, particularly, respondent No.3 to implement its own resolution dated 14.12.2015, in view of which petitioners are entitled for notional benefits 3 from the date of their initial appointment and monetary benefits from 15.11.2000 as they have already been placed in Grade-I scale from the date of appointment.
4. Though no counter-affidavit has been filed. However, Mr. Sumir Prasad, S.C. I very fairly submits that the State is fully aware that issue is no more res-integra and the matter has been set at rest by the Hon'ble Apex Court and in view of that, State has come-out with a resolution for granting monetary benefits/notional benefits to the matric trained teachers from the date of their initial appointment but because of some unavoidable reasons, the same could not be implemented and several representations are pending before the respondents and as such, a decision is going to be taken in this regard taking into consideration the direction of the Hon'ble Apex Court as well as their own resolution dated 14.12.2015.
5.Be that as it may, having gone through the submissions of the parties and after perusing the relevant records, this Court is of the view that issue regarding giving benefits of Grade-I pay scale fell for consideration before this Hon'ble Court and the Hon'ble Court had observed that teachers are
- 92 - L.P.A. No. 482 & 478 of 2023 entitled for benefits from the date of their initial appointment and the same was affirmed upto the Hon'ble Apex Court and hence, the issue is no more res-integra. The State Govt. has also come-out with a resolution No.3027 dated 14.12.2015 for implementing the same regarding grant of benefits from the date of initial appointment but unfortunately, the same is not implemented so far. The teachers are suffering as they are not getting their benefits though the issue has been set at rest by the Hon'ble Apex Court. Thereafter, several writ petitions have been filed for the same relief and several orders have been passed by the Hon'ble Court for granting the benefits of Grade-I from the date of initial appointment.
A very fair submission has been made by the learned Counsel that if the petitioners are not entitled for monetary benefits from the date of their initial appointment, they are at least entitled for notional benefits from the date of their initial appointment and monetary benefits from 15.11.2000, as contained in para-15(iv) of the resolution dated 14.12.2015 and also in view of settled principles of law. This submission of learned Counsel is appreciated by this Court.
As such, respondent No.4 is directed to take a uniform decision in case of teachers for granting the benefits of Grade-I Scale keeping into account the decision of this Hon'ble Court in case of "Arun Sinha & Ors. vs. the State of Jharkhand & Ors., passed in W.P.(S)No.638 of 2006 which was affirmed upto the Hon'ble Apex Court and in view of the fact 4 that State has already come-out with a resolution No.3027 dated 14.12.2015. Needless to say that if the petitioners are granted promotion and thus entitled for monetary benefits also and accordingly are entitled for the benefits as prayed for, in view of decision of the Hon'ble Apex Court and in view of resolution dated 14.12.2015.
6. It was brought to the notice of the Court that in view of several orders passed by this Court taking into consideration the orders passed by the Division Bench
- 93 - L.P.A. No. 482 & 478 of 2023 as well as Supreme Court, the State of Jharkhand has given actual monetary benefits to Assistant Teachers of all the districts of the State of Jharkhand save and except Bokaro, Jamshedpur, Dumka and Chaibasa. The instant case relates to Bokaro. Earlier also the order was passed by this Court in W.P.(S)No.2128/2018 relating to Jamshedpur i.e. East Singhbhum.
7. It appears that respondents have adopted method of pick and choose. The Assistant Teachers of Jamshedpur, Bokaro, Dumka and Chaibasa have been discriminated whereas the ratio of the Supreme Court applies in each and every case. If the teachers have been considered for granting promotion and have been granted, they are very much entitled for the monetary benefits also as per the settled proposition of law as it has been held in the case of "Dr. Paras Nath Singh Vs. State of Bihar, reported in 1990(2) PLJR 248; Md. Hafiz vs. State of Bihar, reported in 2003 (2) PLJR 44; Suryadeo Prasad vs. the State of Jharkhand, reported in 2010 (3) JCR 238 and in case of W.P.(S) No.1932 of 2005 (Rajeshwar Prasad Vs. the State of Jharkhand) wherein this Court has held that promotion should be granted with all consequential benefits from the date it fallen due and as such, the respondents cannot be allowed to proceed against the orders passed by the Hon'ble Courts. Time and again it has been held that seniority will be counted from the date of initial appointment. The Assistant Teachers are entitled for monetary benefits from the date of promotion though a decision has been taken by the respondent-State that Assistant Teachers are not entitled for monetary benefits prior to the State of Jharkhand came into existence but admittedly they are entitled for monetary benefits from the date the State of Jharkhand came into existence or from the date a decision to that effect was taken by the State i.e. 05.07.2002. Surprisingly the benefits have been extended to all the teachers except the teachers of Bokaro, Jamshedpur, Dumka and Chaibasa. The stand of the respondent is
- 94 - L.P.A. No. 482 & 478 of 2023 discriminatory and in complete violation of Article 14, I hereby direct the respondents, particularly, respondent No.1 to take a uniform decision for extending the actual benefits of promotion to the 5 petitioners within a period of 12 weeks from the date of receipt of a copy of this order.
Let a copy of this order be circulated to the departmental heads of all the districts of Jharkhand.
The Secretary of the Education Department is directed to circulate the order to all concerned authorities, who are responsible for making payment. The entire exercise of such circulation of order shall be completed within a period of 4 weeks. 8. Accordingly, the writ petition stands disposed of."
148. It is evident from the said judgment that neither there was prayer for grant of Grade IV promotion with retrospective promotion nor there was consideration of Rules, 2012 though the decision has been taken by the State much after framing of Rules, 2012 and appointment of direct recruits in the year December, 2015. The State in the said policy decision as contained in order dated 26.08.2021 also did not taken care of inter se seniority of direct recruits on the post of Trained Graduate Teachers in Grade IV vis-à-vis promotes from Grade I onwards.
149. Therefore, since in the said judgment there is no issue of granting Grade IV promotion taking into consideration inter se seniority between „direct recruits appointed as per Rule 2012‟ and promotes appointed as per Rules, 1991, as in the instant case, but the State based upon the finding so given in
- 95 - L.P.A. No. 482 & 478 of 2023 W.P.(S) No. 7392 of 2017 [Nand Kishor Nayak Vs. State of Jharkhand & Ors], the impugned order/decision of the state as contained in Memo No. 619 dated 26.08.2021 cannot be said to be justified.
150. Though, generally policy decision is not to be interfered with by the High Court in exercise of power of judicial review but it is also settled that that if the policy decision suffers from error or irrational then it is to be interfered with.
151. This Court, in order to examine the aforesaid argument/ground, first deems it fit and proper to refer the position of law regarding the power of judicial review to be exercised in the matter of policy decision taken by the State.
152. This Court is aware of the settled law that the policy decision of the State are not to be disturbed unless they are found to be grossly arbitrary or irrational. In this context, reference may be made to the judgment rendered by the Hon'ble Apex Court in Federation of Railway Officers Association and Ors. vs. Union of India, (2003) 4 SCC 289 wherein at paragraph-12, it has been held as follows:
"12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is
- 96 - L.P.A. No. 482 & 478 of 2023 inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters."
153. Reference may also be made to the judgment rendered in Directorate of Film Festivals and Ors. vs. Gaurav Ashwin Jain and Ors., (2007) 4 SCC 737, wherein the Hon'ble Apex Court has been pleased to hold as under
paragraph-16 which reads as under:
"16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review."
154. Further, in Ugar Sugar Works Ltd. Vs. Delhi Administration and Ors., (2001) 3 SCC 635, the Hon'ble Apex Court has been pleased to hold that "The challenge, thus, in effect, is to the executive policy regulating trade in liquor in Delhi. It is well settled that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness,
- 97 - L.P.A. No. 482 & 478 of 2023 arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy 11 L.P.A. No. 86 of 2018 cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint".
155. In Parisons Agrotech Private Limited and Anr. Vs. Union of India and Ors., (2015) 9 SCC 657, the Hon'ble Apex Court has observed as under paragraph-14 which reads as under:
"14. No doubt, the writ court has adequate power of judicial review in respect of such decisions. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the executive as the policy making is the domain of the executive and the decision in question has passed the test of the judicial review."
156. In Jacob Puliyel vs Union of India and Others 2022 SCC OnLine SC 533 wherein at paragraphs-21 & 23, it has been observed which reads as under:
"21. ... It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy
- 98 - L.P.A. No. 482 & 478 of 2023 decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. 23. There is no doubt that this Court has held in more than one judgment that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since decisions on policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. However, this does not mean that courts have to abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. In Delhi Development Authority (supra), this Court held that an executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty-gritty of the policy, or substitute one by the other but it will not be correct to contend that the
- 99 - L.P.A. No. 482 & 478 of 2023 court shall lay its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review. It was further held therein that the policy decision is subject to judicial review on the following grounds:
a) if it is unconstitutional;
b) if it is dehors the provisions of the Act and the regulations; c) if the delegatee has acted beyond its power of delegation;
d) if the executive policy is contrary to the statutory or a larger policy.
157. Further, in Union of India and Others vs. Bharat Forge Ltd. and Another, 2022 SCC OnLine SC 1018, the Hon'ble Apex Court at paragraph-20 has observed as under:
"20. This Court also laid down paragraph 46 as follows:
"46. In Census Commr. v. R. Krishnamurthy [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 ], a three- Judge Bench of this Court, after noting several decisions, held that (SCC p. 809, para 33) it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved and the courts can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded on ipse dixit offending the basic requirement of Article 14 of the Constitution. It further observed that in certain matters, as often said, there can be opinions but the court is not expected to sit as an appellate authority on an opinion."
158. Thus, it is evident that the interference by way of exercise of power under judicial review is only to the extent if
- 100 - L.P.A. No. 482 & 478 of 2023 it has been found that the action of the State is arbitrary and suffers from the vice or malice.
159. It is evident from the aforesaid judgment that the scope of judicial review in the matter of showing interference with the policy decision is in a case where the decision is arbitrary and suffers from the vice of malice and is in the teeth of Article 14 of the Constitution of India.
160. This Court in the light of the aforesaid proposition and discussions made hereinabove, is of the view since in the policy decision there was non-consideration of the inter se seniority of direct recruits, who were appointed under Rules, 2012 in the year December, 2015 vis-à-vis private respondents, who were appointed in the year 1993-94, rather was only consideration of the teachers appointed in the year 1987, 1988, 1999-2000 in Matric Trained Scale, as would appear from paragraph 1 of the policy decision dated 26.08.2021, the said policy decision cannot be said to be just and proper causing adverse impact upon the direct recruits.
161. This Court has failed to understand that though the said policy decision was taken in the year 2021 and the recruitment rule was made in the year 2012, based upon which appointment was made in December, 2015 on the post of Trained Graduate Teacher in Grade IV which the State did not take care regarding policy decision for fixing the inter-se
- 101 - L.P.A. No. 482 & 478 of 2023 seniority between the private respondents [promotes] and the writ petitioners [direct recruits].
162. Therefore, this Court is of the view that while making out a policy decision the authority ought to have taken into consideration the fact the direct recruits have been inducted in service on the basis of the Rules, 2012.
163. But, it is evident from the consideration so made in the said policy decision that there is no consideration of the direct recruits, who have been appointed in the year December, 2015 and January, 2016, and have been inducted in service in terms of Rules, 2012 and it appears that as if said policy decision has been prepared on the basis of conception that there is no rule for making entry through direct recruitment by way of Rules, 2012.
164. The moment the State has come out with a rule in the year 2012 to make direct recruitment under proviso to Article 309 of the Constitution of India, then it is the bounden duty of the State authority to make a balance in between the direct recruits and the promotes.
165. Therefore, this Court is of the view that the said policy decision for grant of retrospective promotion is contrary to the law down by the Hon‟ble Apex Court on the pretext of the fact that retrospective promotion granted in the context of the present case causing impediment to the future prospect by
- 102 - L.P.A. No. 482 & 478 of 2023 putting the promotes above the direct recruits even though they did not take birth, the day when the direct recruits entered into service, as such it cannot be said to be just and proper and is not sustainable in the eye of law.
166. This Court, after having discussed the aforesaid fact and coming to the order passed by the learned Single Judge, wherefrom it is evident that the learned Single Judge has not appreciated the factual aspect in right prospective by taking into consideration the factual aspect of the judgment rendered in the case of Arun Sinha (supra) or Sunil Kumar Bhagat (supra) was passed by this Court.
167. The learned Single Judge has also not taken into consideration the factual aspect and the propriety of the policy decision, as has been discussed in the preceding paragraphs.
168. The learned Single Judge has further not appreciated that merely the date of entry the consideration has been given for promotion with retrospective effect which is only on the compassion since the learned Single Judge has used the word that „merely because the appointment of teachers in the year 2015 onwards, the case of those who were already in service right from 1994 onwards cannot be allowed to suffer.‟
169. The law is well settled that the issue of seniority cannot be adjudged on the basis of compassion rather it is based
- 103 - L.P.A. No. 482 & 478 of 2023 upon the settled position of law, as per the discussion made hereinabove.
170. This Court, in view of the entirety of facts and discussions made hereinabove, is of the view that the order passed by learned Single Judge requires interference.
171. Accordingly, the order dated 26.07.2023 passed by learned Single Judge is hereby quashed and set aside.
172. Resultantly, impugned order dated 28.12.2016, whereby the private respondents were granted promotion to Grade-IV with retrospective effect from 01.04.2015 on notional basis, is hereby quashed and set aside only to the effect that it would not have retrospective effect causing adverse effect upon the direct recruits [writ petitioners].
173. Since, in the policy decision dated 26.08.2021 there is non-consideration of the inter se seniority of direct recruits, who were appointed under Rules, 2012 in the year December, rather there is only consideration of the teachers appointed in the year 1987, 1988, 1999-2000 in initial Matric Trained Scale, as would appear from paragraph 1 of the policy decision dated 26.08.2021, and further the State did not take care in the said policy decision for fixing the inter-se seniority between the private respondents [promotes] and the writ petitioners [direct recruits], causing adverse effect upon the direct recruits [writ petitioners], even after coming out of new
- 104 - L.P.A. No. 482 & 478 of 2023 recruitment Rules, 2012 and pursuant thereto appointment made thereunder in the year December, 2015, therefore, the policy decision dated 28.06.2021 is hereby quashed and set aside.
174. Resultantly, the State is directed to prepare a fresh policy decision taking into consideration the inter-se seniority between the private respondents [promotes] and the writ petitioners [direct recruits].
175. Accordingly, the State is directed to prepare and publish fresh seniority list of teachers.
176. With the aforesaid observations and directions, both the intra-court appeals stand disposed of.
177. Pending Interlocutory Application, if any, stands disposed of.
I Agree (Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Alankar/
A.F.R
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