IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 997 of 2009 SHYMA NAND MISHRA, S/O LATE NARESH MISHRA RESIDENT OF VILLAGE – PATSA, P.S. – HASANPUR, DISTRICT – SAMASTIPUR …………………. PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, OLD SECRETARIAT, PATNA 2. PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, NEW SECRETARIAT, PATNA 3. DIRECTOR, SECONDARY EDUCATION, NEW SECRETARIAT, PATNA ……………… RESPONDENTS ************* For the Petitioner: Mr. Pratap Sharma, Advocate For the Invervenor: Mr. Bipin Bihari Singh, Advocate For the State: Mr. Pushkar Narain Shahi, AAG-XIV *********** 10. 08.09.2011 The petitioner was appointed as Lecturer in a nationalized Government Secondary School, which was upgraded as +2 School. Lecturers were appointed, having post graduate degree. Petitioner was also appointed to the post of Lecturer and posted in Town High School, Munger. Prayer in this Writ Application is for a direction to Respondents for filling up the posts of Vice Principal / Principal / Headmaster of +2 Schools as well as High School by implementing the resolution of the State Government, dated 2 08.02.1999 accepting the recommendation of the Fitment Committee, whereby the State Government had decided to adopt Central pattern and to establish uniform School Administrative System on the pattern of Central Government. By filing I. A. No. 8542 of 2009, a prayer was made for amending the relief and the amended relief was for quashing Memo No. 3009, dated 04.09.2009 (Annexure – 10), whereby Regional Deputy Directors of Education were directed to prepare seniority list of trained graduate teachers (in fact trained post- graduate teacher) for promotion to the post of Headmaster. Further amended prayer is for quashing of notification no. 733, dated 23.06.1991, whereby the State Government framed Rules with regard to seniority of Teachers of Nationalized Secondary School by merging the services of +2 Lecturers in the cadre of Secondary School Teachers. From the pleadings of the parties, their affidavits and Counter Affidavits, it transpires that +2 Lecturers at the time of their appointment in the upgraded Nationalized Schools, were not the part of the cadre of Secondary School Teachers. The matter of determination of cadre of +2 Lecturers was under 3 consideration of the Government for a long time. Vide notification no. 733, dated 23.06.2009, necessary amendments were made in Bihar Nationalized Secondary School (Service Conditions) Rules, 1983. By this amendment, after serial no. 18, in Rule 2 of Bihar Nationalized Secondary School (Service Conditions) Rules, 1983, sub-section (b) was added in section 4 of Rule 20 with regard to Lecturers of +2 Schools. After the merger of cadre of +2 Lecturers in the cadre of teachers of the secondary school, the service conditions of +2 Lecturers are governed by the provisions of Bihar Nationalized Secondary School (Service Conditions) Rules, 1983 and +2 Lecturers are directly placed in senior scale of Teachers. Initially, untrained +2 Lecturers were not allowed the same pay-scale as trained +2 Lecturers. This was challenged by the Bihar State +2 Lecturers Association, through its President and Ors. by filing C.W.J.C. No. 7244 of 1999. The Single Judge rejected their claim, against which L.P.A. No. 323 of 2004 was filed by the Petitioners and the same was allowed, vide Order, dated 22.03.2004. The dispute related to two sets of pay-scale, allowed to the +2 Lecturers, who were appointed in the year 1987, pursuant to 4 Advertisement No. 1/1987. The qualification prescribed in the advertisement was post graduate degree in 2nd Class and there was no requirement of having a training degree for appointment to the said post. The Division Bench decided that the decision of the State Government to ignore claim of untrained +2 Lecturers with regard to parity of scale is arbitrary, discriminatory and not based on any rational or reasonable consideration. Since training was not a requisite qualification for appointment to the post of +2 Lecturers, as per the advertisement. After their appointment, there was no occasion to make any distinction between two classes of Lecturers on the basis of training qualification. It was held that classification could not have been made taking into consideration the mode of appointment, duty and responsibility and other relevant consideration, which was taken note of by the Fitment Appellate Committee, constituted by the State Government. Counsel for the petitioner submits that since the untrained teachers were also held to be eligible for same pay-scale, considering their mode of appointment, the duty and responsibility, now there is no reason for Respondents to discriminate them in 5 the matters of promotion to the post of Headmaster on this ground that they are untrained +2 Lecturers, whose services have now been merged in the cadre of secondary school teacher. The legal position, on consideration of different rules, guiding the service conditions of secondary school teachers and their eligibility for being appointed / promoted to the post of Vice Principal / Principal of +2 Schools as well as Headmaster of Higher Secondary Schools are as follows: “The State Government constituted a Fitment Committee-cum-Pay Revision Committee for allowing revised pay-scale to Teachers in Primary, Middle, Secondary and +2 Schools, taken over by the Government and under the administrative control of the Department of Human Resources Development. The revised pay-scale was to be provided them w.e.f. 01.01.1986. The Fitment Committee made recommendation in Chapter 16 of its report that - In Bihar for Nationalized Secondary Schools according to Bihar Nationalized Secondary School (Service Conditions) Rules, 1983, a Headmaster / Principal can be appointed, provided he /she has a graduation degree in Arts / Science / Commerce and is in 6 possession of B.Ed / Diploma in Teaching / T.B. or some training, notified as equivalent by the State Government as well as 10 years’ teaching experience, which is relaxable up to 7 years for SC / ST Ladies and Headmasters of the Schools under management of erstwhile private individuals. The Rules also provide that 20 percent of the post of Principals will be filled by direct recruitment and 80 % by promotion and the cadre of Principal will be of the State cadre. The Director, Secondary Education will be the Controlling Officer. The Fitment Committee recommended that though as per existing Rule, in Bihar post-graduate degree is not an essential qualification for appointment as Headmaster / Principal, but this need to be introduced.” On the basis of aforesaid recommendation of the Fitment Committee, the Government made provision that the Department of Human Resources Development will issue guidelines in the matters of prescribed qualification, training requirements and eligibility for recruitment, promotion and crossing of efficiency bar following the terms and conditions in force under the Central Government. In the Central Government, since minimum requisite qualification 7 for the post of Principal / Headmaster is Post- Graduate degree. The Government after due consideration decided to amend the provisions of promotion / direct recruitment to the post of Headmaster by amending some of the provisions under Bihar Nationalized Secondary School (Service Conditions) Rules, 1983. Accordingly, Bihar National Secondary School (Service Conditions) (Modified) Rules, 2005 was notified vide Notification No. 1092, dated 25.06.2005. As per the amended Rule, the minimum requisite qualification for the post of Headmaster shall be Post-Graduate degree in Arts / Science / Commerce, besides the other conditions. By this amended Rules, the earlier provisions that 20% vacancies of Headmasters are to be filled up by direct recruitment and 80% by way of promotion was also modified and 50% post of Headmaster is to be filled up by direct recruitment and rest 50% by promotion. Prior to the amendment of 1983 Rules, under section 4(ka)(1)(2) and (3)(a)(b) of 1983 Rules, eligibility for promotion to the post of Headmaster has been provided. The minimum eligibility criteria provided for promotion to the post of Headmaster under 4(ka)(a) and (2) was graduate degree in Arts / 8 Science / Commerce as well as Teachers Training B.Ed / Diploma / T.B. or some training notified as equivalent by the State Government. Under 2005 Amended Rules, section 4(ka)(1) was amended and the minimum requisite qualification for promotion to the post of Headmaster was post-graduate degree from any recognized institution. So far section 4(ka)(2) relating to Teachers training like B.Ed, Diploma in Teaching, T.B. or some training notified as equivalent by the State Government is concerned, was not amended. However, section 4(ka)(3)(b) of 1983 Rule was amended. Un-amended section 4(ka)(3)(b) of 1983 Rules provided that for the purpose of promotion to the post of Headmaster, the Teacher must possess at least 8 years teaching experience in senior selection grade or in the absence of this, he / she must have completed total 13 years of service, in the senior selection grade as well as subordinate grade altogether. As per the this provision, when gradation list of teacher for promotion to the post of Headmaster was being prepared, the State Government realized that requisite number of Teachers eligible for promotion to the post of Headmasters are not available in 9 comparison to the vacancies to the post of Headmasters. On consideration of this situation, amendment was brought under section 4(ka)(3)(b) of 1983 Rules. Under the modified Rules, the condition of senior selection grade has been relaxed to the extent that in absence of senior selection grade teachers, teachers, who are getting senior scale and have completed 20 years of service, can be promoted to the post of Headmaster. The State Government brought this amendment, through Bihar Nationalized Secondary School (Service Conditions) (Modified) Rules, 2005. Simultaneously the matter relating to entitlement of the +2 School Lecturers for their promotion to the post of Headmaster was also under consideration. Since +2 Lecturers were holding ex- cadre post, as such, determination of their cadre was also under consideration of the State Government. Following necessary procedures, vide notification no. 733, dated 23.06.2009, necessary amendments was made in Bihar Nationalized Secondary Schools (Service Conditions) Rules, 1983. Amending section 4 of Rule 20, by adding sub-rule (b) services of +2 Lecturers were merged with the cadre of Nationalized 10 Secondary School Teachers. As per the amended provision, service of +2 Lecturers were merged in the cadre of senior selection grade secondary school teachers. As a consequence of merger, a decision was taken to prepare a joint seniority list, in terms of different circulars, orders, issued by the Personnel and Administrative Reforms Department, Government of Bihar. The merger notification No. 733, dated 23.06.2009 (Annexure-9) also indicated that all conditions mentioned under rule 2 of 1983 Rules will be applicable in case of +2 Lecturers. Petitioner’s grievance is that despite +2 Lecturers service being merged in the cadre of senior selection grade teachers of nationalized secondary school teacher, they are not being considered for promotion to the post of Vice Principal / Principal / Headmaster of the Schools, ignoring the amended notification no. 733, dated 23.06.2009. A separate gradation list of only senior selection grade secondary school teachers have been prepared for being promoted to the post of Headmaster. In support of this contention, the gradation list published by the Department has been annexed to show that not a single name of +2 Lecturer has been 11 included in this list. As per the notification no. 733, dated 23.06.2009, combined gradation list should have been prepared, considering the eligibility and seniority of +2 Lecturers vis-a-vis senior selection grade secondary school teachers, but that has not been done. Counter Affidavit and Supplementary Counter Affidavits filed on behalf of the Director, Secondary Education as well as other Respondents, are not convincing and satisfactory since there was no answer to this question, raised by the petitioner. In the first Counter Affidavit, it was stated that vide order dated 04.09.2009, contained in Memo No. 309(10), Regional Deputy Directors of Education had been directed for sending names of trained Post- Graduate Teachers in SC / ST as well as General Categories, for preparing a seniority list for promotion to the post of Headmaster. Since it was not a general seniority list, but a seniority list for specific purpose, i.e., to give promotion to the post of Headmaster, as such, names of only those teachers, who possessed trained post-graduate degree were enlisted, Teachers, who fulfilled eligibility criteria, for being promoted to the post of Headmaster, as per 1983 12 Rules as well amended 2005 Rules, were enlisted in the seniority list. Service of the petitioner, though, has been merged in the cadre of senior selection grade secondary school teacher, despite this fact he is not eligible for being promoted to the post of Headmaster for the reason that he does not possess training degree only post graduate trained teachers are eligible for promotion and being enlisted in this seniority list. In support of this contention that only trained +2 Lecturers, whose services have been merged in the cadre of senior selection grade secondary school teachers, are eligible for promotion to the post of Headmaster, counsel for the State has referred 1983 Rules as well as amended 2005 Rules. Mr. Pushkar Narain Shahi, counsel appearing for the State has submitted that Rule 4(ka)(1) and 4(ka)(3)(b), providing eligibility criteria for promotion to the post of Headmaster, were modified and amended vide 2005 Rules. So far Rule 4(ka)(2), which provides that training degree is a requisite qualification for being promoted to the post of Headmaster is concerned, that was not amended. It means that for being promoted to the post of 13 Headmaster, one must possess post-graduate degree in Arts / Science / Commerce from any recognized institution, teachers’ training degree as provided under Rule 4(ka)(2) and 20 years teaching experience. Petitioner though fulfills the eligibility criteria with regard to his post-graduate as well as 20 years teaching experience in senior selection grade, but he does not fulfill the requisite qualification of training as provided under rule 4(ka)(2) of 1983 Rules. This was the reason that petitioner’s name was not included in the gradation list, prepared for giving promotion to the post of Headmaster. Counsel for the petitioner submits that he was appointed in pursuance to Advertisement No. 1/1983, pursuant to which only post-graduate degree was requisite qualification for appointment. In pursuant to this advertisement, trained as well as untrained post graduate candidates were appointed as +2 Lecturers. Subsequently, when they were discriminated in payment of their salary by providing two sets of pay- scales, the LPA Bench decided in their favour, holding that they can not be discriminated simply on account of being untrained, considering their mode of appointment, nature of work as well as other 14 consideration. The Government had earlier decided for sending untrained +2 Lecturers for procuring in- service teacher’s training, but considering the Division Bench Judgment, +2 Lecturers, undergoing teacher’s training were withdrawn from pursuing their course. Since +2 Lecturers were restrained from completing teachers training course on this consideration that they are equivalent to trained post-graduate teachers. Now, they can not be discriminated in the matters of promotion, on the ground of being untrained, and not fulfilling requisite qualification for being promoted to the post of Headmaster. It has also been submitted by the petitioner that Respondents have made wrong statement on affidavit that petitioner’s name has not been included simply because he is untrained. The reality is that even trained post-graduate teachers, eligible for being promoted to the post of Principal, have not been included in this gradation list. On perusal of the gradation list, I find that this is a correct statement. The counsel appearing for the State has no answer to this query as to why names of trained post-graduate teachers also have not been included in this list. Mr. P. N. Shahi has very fairly 15 admitted that the names of trained post-graduate teachers as per the 1983 Rules read with 2005 Modified Rules, as well as the notification no. 733, dated 23.06.2009, must have been included in the gradation list as per their seniority. Since it has not been done by the State Government, for no obvious reason, it must be done and this grievance must be redressed. I find that the petitioner has not challenged the vires of 1983 Rules as well as 2005 Rules, as well as notification no. 733, dated 23.06.2009. The 1983 Rules provided eligibility criteria, which included the training degree. No amendment was brought with regard to the necessity of training degree, as requisite qualification for promotion even by 2005 Rules. The notification no. 733, dated 23.06.2009 also provided that all conditions provided under Rule 4 of 1983 Rules will be applicable in case of +2 teachers, whose services have been merged in the cadre of selection grade nationalized secondary school teachers. All these Rules and notifications connected with eligibility for promotion, provided training degree as an essential qualification for being promoted to the post of Principal. Unless, vires of 16 these Rules are challenged and amended, petitioner can not claim for inclusion of his name in the gradation list, specially prepared for the purposes of promotion to the post of Headmaster, as he lacks requisite qualification for being promoted to the post of Principal. In the facts and circumstances of the case, the prayer of the petitioner with regard to quashing of Annexure – 10, whereby the Regional Deputy Directors had been asked to furnish names of trained post-graduate teachers for preparation of gradation list in order to give promotion to the post of Principals, has no merit. The relief prayed by the petitioner for a direction to the Respondents to include his name in the gradation list prepared for specific purpose of giving promotion to the post of Headmaster has also got no merit. These two prayers of the petitioner are rejected. However, the respondent authorities are directed to prepare a joint gradation list of senior selection grade nationalized secondary school teachers in view of the Government’s own decision consequential to the merger of the services of +2 school Lecturers in the cadre of secondary school 17 senior selection grade teachers. Common gradation list must be prepared in accordance with Rule of seniority. Respondents are further directed to prepare a fresh gradation list of trained post-graduate senior selection grade secondary school teachers with 20 years teaching experience, for giving promotion to the post of Headmaster, which will also included names of trained post graduate +2 teachers, whose services have now been merged in the cadre of senior selection grade secondary school teachers. Respondents will give promotion to the post of Headmaster, only after publication of modified gradation list of senior selection grade post-graduate trained secondary school teachers. This task must be completed by the Respondents within three months of production / communication of this order. Since the petitioner and other untrained post- graduate Teachers have been deprived from being promoted to the post of Headmaster, due to latches and lacunae on the part of the Department and its authorities, as such, it is desirable that immediate steps be taken and arrangement be made for sending petitioner’s as well as other similarly situated untrained +2 Lecturers, whose services now been 18 merged in the cadre, for undergoing teacher’s training degree. Steps in this regard also must be taken within three months from the date of production / communication of this order. With these observations and directions, Writ Application is dismissed. SKM (Mridula Mishra, J.)