IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3320 of 2007 Degambar Kumar Dwivedi, son of Muneshwar Dubey, resident of village Shikharia Jamui, P.O. Sonepur, P.S. Jamui, District Jamui, Bihar … Petitioner Versus 1. The State Of Bihar 2. The Collector cum District Magistrate, Jamui, Bihar 3. The Director Secondary Education, Bihar, Patna 4. The Sub divisional Education Officer, Jamui, Bihar 5. The Regional Deputy Director of Education, Munger, Bihar 6. The Regional Deputy Director of Education, Bhagalpur, Bihar 7. The District Education officer, Munger, Bihar 8. The Principal, Project Girl High School, Sikandra, Jamui, Bihar … Respondents ---------------------------------- 2. 11.8.2011 Heard counsel for the parties. The petitioner claiming to be a Class IV employee in a Project High School, Sikandra has moved this Court for a direction for his promotion on the vacant post of Clerk in the said school with effect from 28.11.1995. The sole basis for such claim of promotion is the letter of the Regional Deputy Director of Education, Bhagalpur dated 28.11.1994 (Annexure 2) which for the sake of clarity is quoted hereinbelow: izs"kd% {ks=h; mi f'k{kk funs'kd Hkkxyiqj ize.My Hkkxyiqj lsok esa] iz/kkuk/;kid ifj;kstuk ckfydk m0 fo0 fldUnjk Hkkxyiqj] fnukad 28 uoEcj 94 fo"k;& Jh fnxEcj dqekj f}osnh vkns'kiky ifj;kstuk ckfydk mPp fo|ky; fldUnjk ls dk;kZy; dk;Z ysus ds laca/k esaA egksn;] mi;qZDr fo"k;d izlax esa vafdr dguk gS fd Jh fnxEcj dqekj f}osnh vkns'kiky ftuls dk;kZy; dk;Z fy;k tkrk gS] vius osrueku esa le;kuqlkj dk;Z fy;k tk;A fo'oklHkktu g0@& {ks=h; f'k{kk funs'kd Hkkxyiqj ize.My Hkkxyiqj 2 Learned counsel for the petitioner submits that the petitioner is still continuing to work on the post of Clerk in the said Project School but neither his promotion has been notified by the R.D.D.E., Bhagalpur nor the petitioner has been given the benefit of Rule 103 of the Bihar Service Code which contemplates paying of at least 20% of basic pay or Rs. 250/- whichever is less for holding the higher post. In this case through a counter affidavit has been filed but the aspect that the R.D.D.E., Bhagalpur had given orders for taking work on the higher post of Clerk from the petitioner in the school in question has not been controverted. It has, however, been contended that the order of the R.D.D.E., Bhagalpur was very clear that the petitioner could work against the higher post of Clerk but he would still receive payment of his salary in his own pay scale i.e. pay scale of the post of Class IV employee. It has also been contended that the procedure for appointment/ filling up the post of Clerk in the High Schools including the Project High School has been laid down by the State Government whereby and whereunder it is only the Bihar Staff Selection Commission which has been vested with the power of making recommendation for grant of promotion on Class-III post of Clerk from Class IV employees in the High Schools. In the considered opinion of this Court the order of the R.D.D.E., Bhagalpur dated 28.11.1994 may not strictly make the petitioner eligible for promotion, inasmuch as he was only authorized to work on the higher post of Clerk by way of current 3 charge arrangement. The petitioner, however, on the strength of such order claims to be working on the post of Clerk now for almost 17 years and therefore, the respondents would be under obligation to at least consider the case of the petitioner for grant of such promotion either on their own or even by referring his case to the Bihar Staff Selection Commission. Such promotion of the petitioner of course will not be considered, in isolation and infact cases of all eligible persons will have to be considered as per Rules. None-the-less as it is an admitted fact that the petitioner was allowed to work on the higher post of Clerk under the orders of the competent authority, namely, R.D.D.E., Bhagalpur, his case for grant of allowances in terms of Rule 103 of the Bihar Service Code must be considered and if it is found that such authorization by the R.D.D.E., Bhagalpur was itself illegal, the superior competent authority may recover the amount from the R.D.D.E. who had passed such order but as the work of the post of clerk has been taken from the petitioner against the higher post by the Headmistress of the said High School for long seventeen years he must be paid emolument as contemplated under Rule 103 of the Bihar Service Code. At the same time as the respondents themselves had come out with a case in the counter affidavit that it is the Bihar Staff Selection Commission which has to consider the case of promotion of Class IV employees for their being promoted on Class III post of Clerk, this Court would also direct that the case of 4 the petitioner be forwarded for consideration by the Staff Selection Commission and the Staff Selection Commission thereafter must take its decision within the specified period of time. The entire exercise, however, must be completed by the respondents as with regard to consideration of the case of promotion of the petitioner within a fixed period of six months. It is made clear that this Court has expressed no opinion on the merits as with regard to admissibility of promotion of the petitioner on the post of Clerk but as the petitioner has been allowed to work on the post of Clerk for the last 17 years, the same needs be considered by the competent authority strictly in accordance with law. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/