Jharkhand High Court
Krishna Chandra Gope vs The State Of Jharkhand And Ors on 4 July, 2017
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No.75 of 2017
Krishna Chandra Gope, S/o Late Prasad, Retired
incharge headmaster, project High School, Kathmari,
Singhbhum West, VIII - Tangar Pokharia, P.O. - Kheriya
Tangar, P.S. - manjahri, Singhbhum West
..... Appellant
Versus
1. The State of Jharkhand
2. The Principal secretary, Department of Human
Resources Development, Government of Jharkhand,
Telephone bhawan, P.O. & P.S. - Dhurwa, District
Ranchi, Jharkhand
3. The Director, (Secondary Education) Depatment of
Human Resources Development, Government of
Jharkhand, Telephone bhawan, P.O. & P.S. -
Dhurwa, District Ranchi, Jharkhand
4. The District Education Officer, Chaibasa, P.O. & P.S.
- Chaibasa, District - Singhbhum West Jharkhand
..... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mrs. Shubha Jha, Advocate,
Mr. A. K. Jha, Advocate
For the State : Mr. Rishikesh Giri, J.C to G.P II
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03/Dated: 04th July, 2017
Per D.N. Patel, A.C.J
1. This Letters Patent Appeal has been preferred by the original petitioner whose writ petition being W.P.(S) No.7275 of 2016 was dismissed by the learned Single Judge by order and judgment dated 09.02.2017, whereby the claim of this appellant (original petitioner) to get himself regularized on the post of Headmaster from the year 1983, has been rejected, hence, the original petitioner has preferred the present Letters Patent Appeal.
2. Argument canvassed by the learned counsel for the appellant (original petitioner):- -2-
● This appellant (original petitioner) was appointed as an Assistant Teacher in the Project Girls High School, Kathmari, district Singhbhum West on 13th November 1982. Thereafter, this appellant (original petitioner) has obtained B.Ed. Degree in the year 1992 and he was appointed as In-charge Headmaster since long and, therefore, at least from the year this appellant has got B.Ed. Degree, his services ought to have been regularized as Headmaster. This aspect of the matter has not been properly appreciated by the learned Single Judge, hence, the judgment and order dated 09.01.2017, passed in W.P.(S) No.7275 of 2016 deserves to be quashed and set aside. It is further submitted by the counsel for the appellant that the case of this appellant is similar to that of :-
(a) Saryu Prasad Roy, who had also filed C.W.J.C No.11805 of 1993, and his services were regularized;
(b) Ayesha Kumar, who had also filed W.P.(S) No.547 of 2009, and her services were also regularized as Headmaster; and
(c) moreover, the case of this appellant was similar to that of Kamdeo Prasad Shahi, who had also instituted C.W.J.C No.7638 of 1991 and subsequent writ petitions preferred by Kamdeo Prasad Shahi, similar treatment -3- ought to have been given to this appellant (original petitioner). This aspect of the matter has also not been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant.
● It is further submitted by the counsel for the appellant that in view of the decision rendered by the Hon'ble Supreme Court in the case of A. K. Pradhan Vs. State of Bihar & Ors. , passed in Civil Appeal No.4032 of 1988 dated 07.01.1998 , reported in 1998 (1) PLJR 2 (SC), the ratio decidendi reported in this case has also not been properly appreciated by the learned Single, which prescribes that this appellant is entitled to get regularization on the post of Headmaster.
● It is further submitted by the learned counsel for the appellant as per Rule 4 of Bihar Nationalized Secondary School (Service Conditions) Rules, 1983 (herein after referred to as the Rules, 1983) enacted under Section 9 of the Bihar Non-Governmental Secondary School (Taken over of Management and Control) Act, 1981 (herein after referred to as the Act, 1981) entitles this appellant to be appointed/ promoted on the post of Headmaster, no sooner did, this appellant is qualified to be appointed as Headmaster. This Rules have been adopted for -4- the Project Schools w.e.f 01.06.1999 and later on, upon bifurcation of the State of Jharkhand, the same have been adopted by the State of Jharkhand. As per this Rule 4, this appellant is entitled to get regularized on the post of Headmaster. This aspect of the matter has also not been properly appreciated by the learned Single Judge, hence, the judgment and order delivered by the learned Single Judge deserves to be set aside.
● It is further submitted by the counsel for the appellant that once this appellant has not been regularized on the post of Headmaster, it provides continuous cause of action and hence, the petition preferred by this appellant cannot be said to have been preferred at a belated stage. This aspect of the matter has also not been considered by the learned Single Judge and hence, also the judgment and order delivered by the learned Single Judge in W.P.(S) No.7275 of 2016 dated 09.01.2017 deserves to be quashed and set aside.
3. Argument canvassed by the learned counsel for the respondent-State:-
● That there is no legitimate right vested in the appellant (original petitioner) to get himself promoted on the post of Headmaster under any law and much less under Rule 4 of the Rules, -5- 1983 enacted under Section 9 of the Act, 1981. ● It is further submitted that there is no right to get promotion, but always there may be right to be considered for the promotional post. There is a vast difference between "right to be considered for promotion" and "right to be promoted". The highest right vested in this appellant (original petitioner) is to be considered for the post of Headmaster and nothing beyond that.
● That the judgment upon which the counsel for the appellant has relied upon which is reported in 1998 (1) PLJR 2 (SC) confers only the right to be considered for promotion, as a matter of right. The ratio decidendi of the aforesaid decision is that, if any candidate possesses any qualification to be appointed as Headmaster, then his case can be considered. Thus, "right to be considered" and "right to be promoted" are absolutely different in the eye of law. ● It is further submitted by the counsel for the respondent - State that this appellant (original petitioner) was given charge of the post of Headmaster. It happens with the Government that promotional posts may not have been filled up for any reason whatsoever. The work of the promotional post ought to be carried by some another teacher, such type of teacher is normally -6- the senior most teacher. Thus, even if this appellant (original petitioner) is given the charge of the post of Headmaster, that does not mean that he must be promoted as Headmaster. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant.
● It is further submitted by the learned counsel for the respondent - State that the case of this appellant, factually, is different from the facts of the case of (a) Saryu Prasad Roy; (b) Ayesha Kumar, and; (c) Kamdeo Prasad Shahi, mainly for the reason that this appellant was initially appointed as a teacher in the Project Girls High School and merely because he has completed 7 years as teacher and got B.Ed degree and has possessed all the requisite qualifications for the post of Headmaster, that does not mean that he must be promoted as Headmaster. At the highest his case can be considered for the post of Headmaster as he is falling within the zone of consideration. There is no legitimate right "to get promotion", but there is always a legitimate right "to be considered for the promotion". This vital difference has been lost sight of by this appellant and wrongly agitated his claim to be regularized to the post o Headmaster, hence, -7- this Letters Patent Appeal may not be entertained.
● Counsel for the respondent - State has also relied upon the decision rendered by the Hon'ble Supreme Court reported in 1998 (1) PLJR 2 (SC) . In view of the aforesaid decision, a candidate who is seeking promotion, has only a right to be considered and nothing beyond that.-
4. Reasons :
Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this appeal mainly for the following facts and reasons :-
(i) This appellant is original petitioner, who instituted W.P.(S) No.7275 of 2016 for getting regularization of his service on the post of Headmaster from the year 1983 mainly for the reason that he was made In-charge Headmaster of Project Girls High School, Kathmari, district Singhbhum West; alternatively he has prayed that at least from the year 1992 the year in which this appellant has got his B.Ed. Degree, he may be regularized. This writ petition has been dismissed by the learned Single Judge by judgment and order dated 09.01.2017 and hence, the original petitioner has preferred this Letters Patent Appeal.
(ii) It appears that there is wrong notion in the mind of this appellant that no sooner did he has got -8- the requisite qualifications and eligibility to be appointed as Headmaster, he must be promoted as Headmaster. There is no such right vested in the teachers who are seeking promotion on the post of Headmaster as a matter of right.
(iii) At the highest there is a right "to be considered" to the post of promotion if any teacher is eligible and qualified to be promoted as Headmaster.
(iv) It has been held by the Hon'ble Supreme Court in catena of decisions and consistently that there is no "right to get promotion", but, there is "right to be considered" for the post of promotion.
This aspect of the matter has not been properly appreciated earlier in the matter which has been referred to by the learned counsel for the appellant. Howsoever, eligible a candidate may be for getting promotion, but there is no right vested in such candidate that he must be promoted. It may happen that Headmaster can be appointed from the out side also and not necessarily qualified teacher of the very same school maybe promoted once he has got right of getting promotion. Even if, he is In- charge of the promotional post, there is no right vested in such candidate that he must be regularized on the promotional post. If any person is In-charge of the promotional post for a few years and if his service must be regularized, it will lead to -9- a situation that a thing, which can not be done directly, will be done indirectly.
(v) Much has been argued about the Rule 4 of Bihar Nationalized Secondary School (Service Conditions) Rules, 1983 enacted under Section 9 of the Bihar Non-Governmental Secondary School (Taken over of Management and Control) Act, 1981. We have perused the said Rule 4. it prescribes only the eligibility and qualifications for the post of Headmaster which prescribes B.Ed. Degree and 7 years experience as a teacher along with other requisite qualification merely because this appellant possesses qualification for being appointed/ promoted on the post of Headmaster and merely because he is In-charge Headmaster since last few years, that does not mean that this appellant must be promoted on the post of Headmaster or if he is In-charge Headmaster he must be regularized on the post of Headmaster.
(vi) Counsel appearing for the appellant has relied upon several decisions one is C.W.J.C No.11805 of 1993 in the case of Sarayu Prasad Roy Vs. State of Bihar and others as well as a decision rendered in W.P.(S) No.547 of 2009 in the case of Ayesh Kumar Vs. The State of Jharkhand and others as well as decision rendered in the case of Kamdeo Prasad Shahi in C.W.J.C NO.7638 of 1991 and W.P(S) No.2700 of 2006. None of these judgments is
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helpful to this appellant mainly for the reason that :-
(a) this appellant (original petitioner) was initially appointed as a teacher in Project Girls' High School, Kathmari, Singhbhum West on 13.1.1982. At that time he was not qualified to be appointed as Headmaster, nor he was ever appointed as Headmaster;
(b) This appellant acquired the qualification of B.Ed in the year 1992 and after 7 years from the year 1992, i.e., from the year 1997, this appellant has claimed that his service may be regularized on the post of Headmaster. In fact, there is no such right vested in this appellant, nor this appellant was ever appointed as Headmaster;
(c) This appellant was made In-charge on the post of Headmaster because of non-
availibility of Headmaster in the school. Whenever any person is made In-charge on a promotional post for a long time, he starts thinking that he is the only person who is qualified to be promoted, and thereafter he starts thinking that he must be promoted. This case of this appellant is no exception of the aforesaid phenomenon;
(d) If any person is made In-charge of any promotional post, at the highest he can get
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10% or 20% of his salary as officiating allowance for the promotional post and nothing beyond that. He may be promoted or he may not, he may get the post of Headmaster or he may not.
(e) Consistently Hon'ble Supreme Court has held in a catena of decisions that there is a right to be considered for the post of promotion and there is no right that any candidate who is not possessing the requisite qualification for the promotional post must be promoted;
(f) Sometimes Government is not filling up promotional posts for any reason whatsoever and hence, somebody must be given charge of the promotional post, but that does not mean that a person to whom charge is given of the promotional post either must be promoted or he must be regularized on the promotional post;
(g) The aforesaid facts and reasons make the present case different from the facts of the aforesaid decisions upon which the counsel for the appellant relied.
(h) It has been held by Hon'ble Supreme Court in the case of Syed Khalid Rizvi V. Union of India, reported in 1993 Supp (3) SCC 575 , especially in para 31, which reads as under :-
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"31. No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible. Take an illustration that the Promotion Regulations envisage maintaining integrity and good record by Dy. S.P. of State Police Service as eligibility condition for inclusion in the select-list for recruitment by promotion to Indian Police Service. Inclusion and approval of the name in the select-list by the UPSC, after considering the objections if any by the Central Government is also a condition precedent. Suppose if 'B' is far junior to 'A' in State Services and 'B' was found more meritorious and suitable and was put in a select-list of 1980 and accordingly 'B' was appointed to the Indian Police Service after following the procedure. 'A' was thereby superseded by 'B'. Two years later 'A' was found fit and suitable in 1984 and was accordingly appointed according to rules. Can 'A' thereafter say that 'B' being far junior to him in State Service, 'A' should become senior to 'B' in the Indian Police Service. The answer is obviously no because 'B' had stolen a march over 'A' and became senior to 'A'. Here maintaining integrity and good record are conditions of recruitment and seniority is an incidence of service. Take another illustration that the State Service provides -- rule of reservation to the scheduled castes and scheduled tribes. 'A' is a general candidate holding No. 1 rank according to the roster as he was most meritorious in the State service among general candidates. 'B' scheduled castes candidate holds No. 3 point in the roster and 'C', scheduled tribe holds No. 5 in the roster. Suppose Indian Police Service Recruitment Rules also provide reservation to the Scheduled Castes and Scheduled Tribes as well. By operation of the equality of opportunity by Articles 14, 16(1), 16(4) and 335, 'B' and 'C' were recruited by promotion from State Services to Central Services and were appointed earlier to 'A' in 1980. 'A' thereafter in the next year was found suitable as a general candidate and was appointed to the Indian Police Service. Can 'A' thereafter contend that since 'B' and 'C' were appointed by virtue of reservation, though were less meritorious and junior to him in the State service and gradation list would not become senior to him in the cadre as IPS officer. Undoubtedly 'B' and 'C', by rule of reservation, had stolen a march over 'A' from the State Service. By operation of rule of reservation 'B' and 'C' became senior and 'A' became junior in the Central Services. Reservation and roster were conditions of recruitment and seniority was only an incidence of service. The eligibility for recruitment to the Indian Police Service, thus,
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is a condition of recruitment and not a condition of service. Accordingly we hold that seniority, though, normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion, which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable.
(Emphasis supplied)
(i) It has also been held by Hon'ble Supreme Court in the case of State of M.P V. J. S. Bansal, reported in (1998) 3 SCC 714, especially in para 13, which reads as under :-
"13. Undoubtedly, an employee has a right of being considered for promotion but he cannot claim promotion as of right. Right to be considered for promotion is obviously different and distinct from right of promotion. Even if disciplinary proceedings are initiated against an employee and those proceedings are pending on the date on which names of other employees are considered for promotion to the next higher post, the delinquent employee, if he is similarly circumstanced as other employees and is also eligible, has a right to be considered for promotion to the next higher post along with other employees.
His name cannot be omitted from consideration merely because of the pendency of the departmental proceedings. An employee cannot be denied this right at the interlocutory stage of the departmental proceedings as he is still to be found guilty on the basis of the evidence which might be produced against him during those proceedings. Till the charges are established, his right to be considered cannot be defeated as he is not under the cloud of having been found guilty but is only suspected to be guilty. Mere suspicion is not a substitute for proof. Consideration for promotion along with other eligible candidates is done so as to give effect to the fundamental right available even to a delinquent employee under Articles 14 and 16 of the Constitution. Once the name is considered for promotion, the recommendations of the Departmental Promotion Committee are required to be kept in a "Sealed Cover" obviously for the reason that if the employee is ultimately found to be not guilty and the charges set out against him are found as "not established", he may be promoted immediately to the next higher post.
(Emphasis supplied)
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(j) It has been held by Hon'ble Supreme Court in the case of Badrinath V. Govt. of T. N. , reported in (2000) 8 SCC 395, especially in para 47 & 58, which reads as under :-
"47. Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility, provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with "fairness" in the matter of consideration for promotion under Article 16. We shall therefore refer to the current legal position.
58. From the above judgments, the following principles can be summarised:
(1) Under Article 16 of the Constitution, right to be "considered" for promotion is a fundamental right. It is not the mere "consideration" for promotion that is important but the "consideration" must be "fair" according to established principles governing service jurisprudence. (2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury principles or it was mala fides. (3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness. (4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement.
(5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether. (6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed.
(Emphasis supplied)
(k) It has also been held by Hon'ble Supreme
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Court in the case of Union of India V. Sangram Keshari Nayak , reported in (2007) 6 SCC 704, especially in para 11, which reads as under :-
"11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the Bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him.
(Emphasis Supplied)
(l) It has been held by Hon'ble Supreme Court in the case of S. B. Bhattacharjee V. Union of India, reported in (2007) 10 SCC 513 , especially in para 13, which reads as under :-
"13. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India.
(Emphasis Supplied)
(m) It has also been held by Hon'ble Supreme Court in the case of Hardev Singh V. Union of India, reported in (2011) 10 SCC 121 , especially in para 17, which reads as under :-
"17. It cannot be disputed that no employee has a right to get promotion; so the appellant had no right to get promotion to the rank of Lieutenant-General but he had a right to be considered for promotion to the rank of
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Lieutenant-General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no dispute to the fact that the appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant-General.
(Emphasis Supplied)
(n) It has also been held by Hon'ble Supreme Court in the case of High Court of Judicature of Madras V. R. Perachi , reported in (2011) 12 SCC 137, especially in para 32, which reads as under :-
"32. Besides, there is no right of promotion available to an employee. He has a right to be considered for promotion which has been held to be a fundamental right (see para 13 of S.B. Bhattacharjee v. S.D. Majumdar). However, though a right to be considered for promotion is a condition of service, mere chance of promotion is not (see para 15 of the Constitution Bench judgment in Mohd. Shujat Ali v. Union of India).
(Emphasis Supplied)
(vii) In view of the aforesaid decisions, there is vast difference between :-
(a) right to be considered to the promotional post if acquired requisite qualification of eligibility for the promotional post; and
(b) right to be promoted. In service jurisprudence there is nothing like right to be promoted. Only there is right to be considered for the promotion. Likewise, even if the teacher is holding a charge of the post of Headmaster for sometime, there is no right vested in the said teacher that he must be regularized on the post of Headmaster, under any law, much less under Rule 4 of Bihar
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Nationalized Secondary School (Service Conditions) Rules, 1983 enacted under Section 9 of the Bihar Non-Governmental Secondary School (Taken over of Management and Control) Act, 1981.
5. As a cumulative effect of the aforesaid facts, reasons, and judicial pronouncements, no error has been committed by the learned Single Judge while dismissing the W.P.(S) No.7275 of 2016 by the judgment and order dated 09.02.2017 and we see no reason to take any other view, than what has been taken, by the learned Single Judge.
6. Thus, there is no substance in this Letters Patent Appeal and the same is, hereby, dismissed.
7. Copy of this judgment and order will be sent to the Chief Secretary to the State of Jharkhand so as to percolate to the Deputy Commissioners and other officers in particular hierarchy in the State of Jharkhand.
(D. N. Patel, A.C.J) (Amitav K. Gupta, J) Dey - Chandan/-