IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8753 of 2003 Sukrita Kumari, wife of Sri Rajendra Prasad Singh, Gachhitola Begusarai, P.O. & District Begusarai at present working as Headmaster Rajkiya Middle School, Bagha, P.O. and P.S. District Begusarai … Petitioner Versus 1. The State Of Bihar through the Secretary, Department of Primary and Adult Education, Bihar, Patna 2. The Director, Primary Education, Bihar, Patna 3. Regional Deputy Director of Education, Munger 4. The District Education and Establishment Committee through its Chairman District Magistrate, Begusarai 5. District Superintendent of Education, Begusarai 6. Treasury Officer, Begusarai 7. Ram Bahadur Singh Assistant Teacher, Middle School Jaridpur (P.O.) District Begusarai … Respondents ---------------------------------- 8. 14.10.2011 Heard Dr. M.P.Shukla, learned counsel for the petitioner and the counsel for the State. Dr. M.P.Shukla, learned counsel for the petitioner, while assailing the impugned order dated 5.6.2003, as contained in Annexure 1 to the writ application, whereby and whereunder the promotion of the petitioner in B.A. trained scale of pay was cancelled, would submit that the entire basis for cancellation of promotion of the petitioner in B.A. trained scale of pay is in violation of the amended Rules, namely, Bihar Rajkiyakrit Prarambhik Vidyalaya Shikshak Pronati Niyamawali, 1993. Elaborating this aspect he would submit that the petitioner had already been promoted in I.A. trained scale of pay by an order dated 26.8.1980 with effect from 24.8.1976 and as such, she in view of amended Rules of 2001 would rank senior to respondent no.7 who was never promoted in I.A. trained scale of pay. He would accordingly submit that the very decision of Ram Bahadur 2 Singh (Respondent no. 7) being ranked senior, in violation of amended 2001 Rules cannot be sustained and therefore, the petitioner’s promotion in B.A. trained scale of pay with effect from 29.1.1991 needs to be restored by quashing the impugned order. Learned counsel for the State, on the other hand, has submitted that the promotion of the petitioner in B.A. trained scale of pay was assailed by respondent no.7 of this case in C.W.J.C.No. 1440/1999, wherein this Court had directed the competent authority to look into the grievance of respondent no.7 by getting the issue decided by the District Education Establishment Committee. It has been explained that thereafter a fresh gradation list was prepared under the approval of the District Education Establishment Committee, wherein respondent no.7 was placed at Sl.No. 93 as against the petitioner at Sl.No. 384. The authority had, therefore, found that the petitioner’s promotion in B.A. trained scale of pay ignoring the claim of his seniors including respondent no.7 was not justified and accordingly, the impugned order was passed cancelling the promotion of the petitioner. In the considered opinion of this Court once the petitioner has not assailed the seniority list in which she was placed at Sl.No. 384 she cannot be allowed to indirectly challenge the same only by assailing the impugned order dated 5.6.2003. The seniority position of the petitioner, therefore, will have to be treated at Sl.No. 384 and if the petitioner has not come out with a case either in the writ petition or in reply to the counter affidavit 3 that any person junior to her, namely, below Sl.No. 384 had been given such promotion in B.A. trained scale of pay with effect from 29.1.1991 or on an earlier date, she cannot be allowed to retain her such promotion in B.A. trained scale of pay, especially when she has not produced the original order by which her promotion was made in B.A. trained scale of pay, namely, the order dated 22.7.1997. In any event now the whole issue relating to promotion on the post of B.A. trained teacher has to undergo a fresh exercise in view of the directions issued by the Full Bench in the case of Ramnath Prasad Singh vs. the State of Bihar & ors., reported in 2009(3) PLJR 384, wherein it was held as follows: “9. In the light of the above, we are of the view that a fresh seniority list has to be prepared in accordance with the Promotion Rules, 1993 and joint seniority list prepared in accordance with the directions of the Division Bench in Naresh Jha’s case (supra) and the draft Rules created in 2006 subject to approval of this Court with regard to promotions cannot be acted upon. We direct the Government to prepare a fresh list and make consequential promotions and transfers according to law. No separate orders are necessary. In view of the interim order of status quo granted promotions were not made for the last 10 years. In the above circumstances, we direct the Government to make separate seniority lists for promotion to Grade-4 for Arts and Science teachers afresh and thereafter to prepare a consolidated list for promotion as expeditiously as possible. The draft list should be published within three months from the 4 date of receipt of a copy of this judgment and the final seniority list shall be thereafter published and promotions and transfers made in accordance with law.” At this stage Dr. Shukla would draw attention to an earlier unreported Division Bench judgment in the case of Yugeshwar Yadav & ors. vs. the State of Bihar & ors., C.W.J.C.No. 9138/1993, disposed of on 6.3.1998, wherein it was held that the teachers promoted in I.A. trained scale of pay prior to 1.1.1986 would rank senior to the Matric trained teachers even after merger of the cadre in view of 1993 promotion Rules. To that extent he has also placed reliance on the amended Rules notified by the State Government on 21.8.2001, the relevant whereof reads as follows: 2- “fcgkj jktdh;d`r izkjafHkd fon~;ky; f'k{kd izksUufr fu;ekoyh 1993 ds fu;e&¼1½ esa ,d ijUrqd tksM+k tkuk%& mDr fu;ekoyh ds fu;e&¼1½ esa fuEufyf[kr ijUrqd tksM+k tk;xkA%& ^^ijUrqd fnukad 1-1-86 ds iwoZ lE;d :i ls fu;er% ,oa 1-1-86 dks dk;Zjr eSfVzd izf'kf{kr f'k{kd 1-1-86 ;k mlds iwoZ lE;d :i ls fu;qDr@izksUur ,oa 1-1-86 ;k mlds iwoZ dk;Zjr bUVjehfM,V izf'kf{kr f'k{kdksa ls duh; gksaxsA** In the considered opinion of this Court now when a direction has already been given by the Full Bench in the case of Ramnath Prasad Singh (supra) for drawing the fresh seniority list for giving promotion on the post of B.A. trained teacher, the exercise had to be taken up for all the teachers including the petitioner and therefore, the case of the petitioner for promotion in B.A. trained scale of pay will also abide by the directions issued 5 by the Full Bench in the case of Ram Nath Prasad Singh (supra). In other words, if the petitioner in the revised gradation list prepared in terms of the direction given by the Full Bench in the case of Ramnath Prasad Singh (supra) would be placed within the number of post available for promotion in B.A. trained scale of pay, her promotion even after her retirement shall be notified with effect from the due date. As the petitioner has already retired and the time limit fixed in the judgment of the Full Bench in the case of Ramnath Prasad Singh (supra) of six months has already expired, this Court hopes and believes that a final decision with regard to giving promotion to the petitioner in B.A. trained scale of pay if not already taken will be taken strictly in accordance with law by the District Education Establishment Committee within a period of four months from the date of receipt/ production of a copy of this order. Let it be made clear that this Court has not interfered with the impugned order of cancellation of promotion of the petitioner but in case the petitioner is found entitled for grant of such promotion from any retrospective date, she will also be entitled for payment of her salary from that date from which her such fresh promotion in B.A. trained scale of pay is notified. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/