IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5569 of 2002 1. Damayanti Kumar, Wife of Shri Sheo Shankar Kumar, the then Assistant Teacher in Government Girls’ Middle School, Kamruddinganj, Biharsharif, Nalanda (now retired), presently residing in Mohalla – Kankarbagh, P.S. Kankarbagh, District Patna. 2. Hemant Rai Saxena, Son of late Mahtab Rai, at present posted as Assistant teacher in Government Girls’ High School, Patna City, District Patna. 3. Bimla Devi, Wife of Late Ramesh Prasad. 4. Shail Kumari, Wife of Shri Chandra Shekhar Prasad. 5. Mala Sinha, Wife of Shri Kedar Prasad. Petitioner Nos. 3, 4 & 5 are at present working as Assistant Teacher in Government Girls Middle School, Kamruddinganj, Biharsharif, District Nalanda. ------- Petitioners Versus 1. The State of Bihar through the Secretary, Primary and Adult Education Department, Government of Bihar, Patna. 2. The Director, Secondary Education-cum-Special Secretary, Human Resources Department, Government of Bihar, Patna. 3. The Deputy Director, Secondary Education, Human Resources Department, Government of Bihar, Patna. 4. The Inspectress of Schools-cum-Deputy Director, Government of Bihar, Patna. 5. The District Inspectress of Schools, Biharsharif, District Nalanda. 6. Kalindi Kumari, at present posted as Deputy Inspectoress of Schools, Biharsharif, Nalanda. ---------- Respondents ----------- 4 16.07.2010 Heard Mr. Gyanand Roy, learned counsel for the petitioners and counsel for the State as also counsel for the respondent no.6. The prayer of the petitioners in this writ application reads as follows:- “1. That this writ application has been 2 filed for consider respondent State and its authorities to consider the case of the petitioners for promotion from Lower Subordinate Education Service to Subordinate Education Service and further to grant B. A. trained scale of pay to them from the date, they have passed the B. A. or equivalent examination after completion of Kalawadhi (minimum service prescribed) in the lower post in the same and similar manner, as has been granted to Kalindi Kumari, respondent no. 6 by the order of the Director, Secondary Education- cum- Special Secretary, Government of Bihar, Patna vide Memo No. 315 dated 1.3.1992, who is junior to the petitioners. This writ application has also been filed for holding that the petitioners are illegible for promotion from lower Sub ordinate Education Service to Subordinate Education Service and also for grant of B. A. trained scale. Petitioner Nos. 1, 2 and 4 are entitled to the said benefit prior to respondent no. 6, Kalindi Kumari because they were appointed as Assistant Teachers prior to respondent no. 6 and they also acquired B. A. or equivalent qualification prior to respondent no. 6. This writ application has also 3 been filed for direction to the State Government and its authorities to grant arrears of salary in B. A. trained scale of salary with effect from the date, the became eligible for grant of said scale of pay.” Mr. Roy, with reference to the aforementioned relief, would submit that the plain and simple case of the petitioners as with regard to their obtaining promotion in the Subordinate Education Service (SES) is that a person junior to them, namely, respondent no.6, had been given such promotion with effect from 16.5.1988 and therefore, when the petitioners on the basis of their initial appointment were senior to the respondent no.6 they ought to have been not ignored while promoting the respondent no.6, their junior. He has also referred to the order of this Court dated 20.8.1998 in CWJC No. 5184 of 1997, wherein, this very question was directly raised and in fact remitted to the authority to decide as with regard to the entitlement of the promotion of petitioners on account of promotion of respondent no.6 (Kalindi Kumari) being junior to them. In this context, he has also 4 referred to the impugned order dated 21.8.2000 passed by the Director, Secondary Education for establishing that from a bare perusal of the same it does not appear that the question of inter-se seniority of the petitioners vis-à-vis respondent no.6 was even remotely referred to, much less, adjudicated by the authority despite a clear direction in the order dated 20.8.1998 in C.W.J.C. No. 5184 of 1997 of this Court. Counsel for the state, on the other hand, would submit that the authority has passed the impugned order, wherein, it has been held that if and when the petitioners would require sufficient seniority as also would fulfill the required period of Kalawadhi and there would be a vacancy for them as in the SES, their case of promotion would be considered. Learned counsel for the respondent no.6 on the other hand, while defending the promotion of respondent no.6, would submit that it is true that the date of appointment of the petitioners is earlier to the respondent no.6 but then the respondent no.6 5 was appointed with a qualification of B.A. Trained and therefore, she will be deemed to be senior to the petitioners, who had acquired such qualification of B.A. Trained in the year 1993-94 respectively. In the opinion of this Court, either the Director, Secondary Education did not understand the order of this Court or has deliberately passed the impugned order in a perfunctory manner. The specific direction of this Court in the order dated 20.8.1998 was to examine the inter-se seniority and the grant of alleged out of turn promotion to the respondent no.6, who was claimed to be junior to the petitioners in the following terms:- “2. The petitioners have sought for a direction to the respondent Director, Secondary Education, to grant them promotion as Assistant Teachers in sub-ordinate Education Service and further B.A. trained Scale. 3. It is stated that the respondents have granted such promotion to respondent no.6 Kalindi Kumari by order contained in Annexure-11 dated 1.3.1997, who is junior to the petitioners in all respect. The petitioners have also claimed to have completed the requisite 6 minimum experience of three years against the lower post. Grievance is although they filed representation before the Director Secondary Education, from time to time, vide Annexure-12 series, but no order was passed. 4. Though at the request of the learned counsel for the State, this case was adjourned on the last occasion to enable him to get instruction, but unfortunately neither any counter affidavit has been filed nor learned counsel for the State is in position to say under what circumstances, the petitioners’ claim has been ignored. 5. I, therefore, having taken into consideration the facts noticed above, dispose of this writ petition with a direction to the Director, Secondary Education to examine the grievance of the petitioners and pass an appropriate order without any further delay. In case it is necessary to interfere with the promotion granted in favour of respondent no.6 Kalindi Kumari, it would be necessary on the part of the Director to give notice to her before final adjudication. But if somehow or the other, the claim of the petitioners can succeed without interfering with the promotion of respondent no.6, it would not be necessary to 7 hear her and the matter can be disposed of on that basis. However, final order in this regard must be passed expeditiously without unnecessary delay.” After the aforesaid specific direction was given by this Court to the respondent Director, Secondary Education, he had only three course open to him, namely, to consider the case of the petitioners as with regard to their seniority vis-à-vis respondent no.6 and hold that they were actually juniors to the respondent no.6 so as to justify the order of promotion of the respondent no.6 or in the alternative cancel the promotion of respondent no. 6 if she was held to be junior to the petitioners or the authority in fact would have also promoted the petitioners on the ground that their junior respondent no.6 had already been promoted. Unfortunately, none of the aforesaid three recourse had been adopted by the Director, Secondary Education, who, curiously even without discussing the case of the respondent no.6 or disturbing her promotion or even holding her to be senior to the petitioners, has gone to pass the 8 impugned order directing the petitioners to wait for their consideration for promotion either on account of some C.B.I. enquiry or on the ground of availability of such vacancy for promotion and the petitioners fulfilling qualifying criteria of the promotional post. Such an order of the Director, Secondary Education, to say the least, is a perverse order and in fact is a clear disobedience of the direction given by this Court. As a matter of fact, this Court has also examined the order of promotion of the respondent no.6 and it is very difficult for this Court to hold that the said order of promotion was a correct and valid order. The authority granting such promotion has completely lost the track of the fact that the respondent no.6 had acquired the qualification of Sahitya Alankar only with effect from 31.3.1986 as is clear from her certificate annexed in the counter affidavit. In that view of the matter, reckoning three years of Kalawadhi from 16.5.1985, the date on which she was not even qualified on account of not having passed the Sahitya 9 Alankar Examination, cannot be justified. There is yet another aspect of the matter, which would make the order of promotion of the respondent no.6 unsustainable, namely, that mere completion of a period of Kalawadhi does not give a right to a person to be promoted. Fulfillment of Kalawadhi is only a minimum period one has to complete on a lower post. The moment it is accepted that the petitioner was appointed against a lower post on the basis of Matric Trained on 16.5.1985, her promotion on the B.A. Trained Scale post in the SES could only have been given from a date on which she had become qualified for such promotion. It is not in doubt that such decision for giving promotion to the respondent no.6 was taken only in the year 1997 by an order dated 1.3.1997 and therefore, if on that day, the petitioners also had already completed the required qualification of B.A. Trained as is also now accepted by the respondent no.6 by suggesting their dates of acquiring such qualification of the year 1993-94, they could not have been treated to be junior to the 10 respondent no.6 unless there is a rule prescribing that once the teachers of Matric Trained would pass their B.A. Examination, their inter-se seniority will be immediately changed. No gradation list, in fact, has been brought to the notice of this Court, which can show the respondent no.6 to be senior to the petitioners. Thus this Court is satisfied that the promotion given to the respondent no.6 with effect from 18.5.1988 cannot be sustained specially when this Court would find that senior to her like the petitioners, may be also others, were ignored for such consideration on 1.3.1997, when such promotion was notified of respondent no.6. That being so, this Court would set aside the order granting promotion to the respondent no.6 dated 1.3.1997 and remit the matter back to the Director, Secondary Education to re-consider the whole issue afresh. If upon such re-consideration of such matter, it is found that the petitioners do not qualify for promotion and no junior to them have been promoted in the SES, it would pass an order to this effect but on the 11 contrary, if it is found that any junior to the petitioners, who have already been promoted, he would also direct for their promotion from the date on which their juniors were given such promotion. In view of the fact that this Court has already quashed the order of promotion of the respondent no.6, the precedent case of the respondent no.6 will not be a ground for giving promotion to the petitioners but if the authorities would still hold the respondent no.6 to be entitled for promotion, they will have to consider the case of the petitioners for their promotion before re- notifying the promotion of the respondent no.6. In course of such examination, it will be open for the Director, Secondary Education to also look into the authenticity and correctness of the educational qualification on the basis of which the petitioners and respondent no.6 are claiming their promotion in the SES. Such an exercise must be completed by the Director, Secondary Education within a period of six months from the date of filing 12 of the representation by the petitioners and respondent no.6 along with a copy of this order. In the result this application is allowed and the impugned order dated 21.8.2000 (Annexure-17) is hereby quashed and the matter is remitted back for reconsideration in the light of aforesaid observations and directions. Rsh (Mihir Kumar Jha, J.)