IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1866 of 2002 1. BHUPENDRA NARAYAN JHA, S/O LATE RAMJEE JHA, R/O VILLAGE, LALPUR SHIVRAM, P.S.- BAHERI, DISTRICT-DARBHANGA, AT PRESENT RESIDING AT MOHALLA-BENGALI TOLA, LAHERIA SARAI, DISTRICT DARBHANGA. 2. SATYA NARAYAN JHA, S/O LATE SHRIKANT JHA, RETIRED HEADMASTER, KALYANPUR HIGH SCHOOL, KALYANPUR, DISTRICT-SAMASTIPUR. 3. RAM LOBHIT PRASAD SINGH, S/O LATE SARYU PRASAD SINGH, R/O VILLAGE-SIMRI, P.O.-KANSI SIMRI, P.S.-SIMRI, DISTRICT-DARBHANGA. …………PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, PATNA. 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, DARBHANGA DIVISION, DARBHANGA. 4. THE ACCOUNTANT GENERAL, BIHAR, PATNA. 5. THE DISTRICT EDUCATION OFFICER, SAMASTIPUR. …………RESPONDENTS. ----------- For the petitioner : Mr. Tej Bahadur Singh, Sr. Adv. For the State : Mr. Sunil Kumar Mandal, SC-15, Mr. Bipin Kumar AC to SC-15. For the A.G. : Mr. J.P. Karn, Sr. Adv. ------------ 5 28.01.2010 Heard learned senior counsel for the petitioners and learned counsel for the State. The three petitioners in this case have challenged an order of the Regional Deputy Director of Education, Darbhanga, contained in memo no. 1485 dated 27.08.2001, and the consequential orders issued by the respondent District Education Officer, Samastipur, 2 contained in memo no. 954 dated 18.06.2001 annexed with the writ application as Annexures-1 and 2, respectively as applicable to them. From Annexure-1, it appears that, on the objection of the Accountant General office in respect of grant of time bound promotion to the petitioners with effect from 1.4.1981, orders were issued to revise the same and fix the date of grant of first time bound promotion to the petitioners and others from the dates mentioned in the order. Three petitioners are at serial nos. 11, 12 and 35 of the order by which their effective date of first time bound promotion has been shifted from 1.4.1981 to 15.2.1982, 17.2.1982 and 17.2.1982, respectively. Orders were also issued for recovery of the excess amount paid to them during the period. Accordingly, consequential orders were issued by the District Education Officer for recovery of the excess amount paid to the petitioners. In addition, an order of the office of the respondent Regional Deputy Director of Education, as contained in Annexure- 3, in respect of petitioner no. 1 has also been challenged by which the shifted date of grant of 3 first time bound promotion to petitioner no. 1 from 15.2.1982 has been re-shifted to 1.4.1982. It also appears that the revised dates of grant of first time bound promotion to the petitioners have been fixed by counting ten years of their service from the date of grant of trained graduate scale to the petitioners upon their completion of training. From this it appears that the period of service rendered by the petitioners when they were initially appointed as untrained teachers, has been ignored. Learned senior counsel for the petitioners submits that prior to 18.9.1972, training qualification was not an essential eligibility criteria for appointment of teachers. Therefore, petitioners otherwise found eligible for appointment, were appointed by the respondents in regular service in the cadre of subordinate grade teachers with graduate qualification. After their joining, they completed training also and acquired training qualification, consequent to which they were put in the graduate trained scale. He submits that since training was not an essential qualification required for appointment prior to 4 18.9.1972, their services have to be counted from their dates of initial appointment itself for computing the required period of service for grant of first time bound promotion. In this context, he has referred to a judgment of this Court rendered in a batch of cases led by case of Bharat Prasad Chourasia Vs. the State of Bihar reported in 2002 (1) PLJR 329. In that judgment case of large number of assistant teachers was considered and, in view of the government letter dated 27.4.1987, this Court has held that the promotion to the petitioners of the batch of cases was rightly given to them computing their period of service from their initial date of appointment. However, the case of one Bharat Prasad Chourasia was distinguished as it was found that he had been appointed after 18.9.1972 without qualification of training and, therefore, he was not covered by the stipulation of the said letter of the government dated 27.4.1987. Therefore, his writ application was dismissed with protection to him from recovery of excess amount paid to him. A counter affidavit has been filed by the respondents in the case. It has been 5 contended in the counter affidavit, in reference to letter no. 920 dated 7.3.1990, that those employees who have worked in different cadres their length of services can not be taken into account counting their services in the previous cadre for grant of time bound promotion. It is contended that the respondent Regional Deputy Director of Education is competent authority and on objection of the Accountant General office, Bihar, Patna, he has rightly issued the impugned order. Learned counsel for the State submits that the said Bharat Prasad Chourasia has filed an LPA against the said judgment of this Court which is pending for consideration. However, it has been rightly pointed out by learned senior counsel for the petitioners that Bharat Prasad Chourasia was aggrieved by the said judgment of this Court as referred to above on account of dismissal of his writ application and only to that extent. The writ petition of all the rest of the petitioners was allowed by this Court against which the State of Bihar has not moved in appeal. Therefore, the said judgment in respect of the rest of the petitioners becomes 6 final. Learned counsel for the State submits that he has no knowledge that any appeal has been filed by the State of Bihar against that judgment or not. Had any appeal been filed by the State of Bihar against the said judgment, the respondents would have come up to inform this Court by now about the same. Therefore, this Court can well presume that the said judgment, to that extent, that it had allowed the claim of the rest of the petitioners, has become final. In the circumstances, following the ratio of the said judgment in the case of rest of the petitioners, this Court is of the opinion that this writ application is also fit to be allowed. In the result, the writ application is allowed, Annexures-1, 2 and 3 are quashed and the respondents are directed to restore the effective dates of time bound promotion of the petitioners, as granted to them earlier i.e. 1.4.1981. Although this Court had already stayed any recovery from the petitioners during the pendency of this writ application, by order 7 dated 20.2.2002, the respondents are directed to refund any amount which may have been recovered from the salary of the petitioners prior to passing of the said interim order. The respondents are also directed to revise the pay scales of the petitioners with all consequential benefits on that account and pay the arrears of the same within a period of three months from the date of receipt/production of a copy of this order. Arvind/ (J. N. Singh, J.)