IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5280 of 2002 Ramani Mohan Singh, Son of late Dinanath Singh, Resident of Village and Post Gaurabdih, District Munger, At present residing at Mohalla Gayatrinagar Purab Sarai, Munger, District Munger. ---------- Petitioner Versus 1. The State of Bihar. 2. The Director, Secondary Education, Bihar, Patna. 3. The District Education Officer, Munger. 4. The School Service Board, Bihar, Patna through its Chairman. ----------- Respondents ----------- For the Petitioner : Sri Rajendra Prasad Singh, Sr. Adv. For the State : Sri S.K. Mandal, S.C.-XV. ---------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (19/07/2010) Heard Mr. Rajendra Prasad Singh, learned senior counsel appearing on behalf of the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application for issuance of appropriate writ(s)/ direction(s) to the respondents for promotion w.e.f. 2.10.1980 and for payment of arrears of difference of salary to the petitioner with effect from 2.10.1980 to 31.12.1999 for the post of Headmaster with bank interest rate granting promotion of the petitioner as Headmaster with effect from 2.10.1980 after deduction what has been paid to him with effect from 2.10.80 to 2 31.12.99 in the scale of Assistant Teacher and fixing the pension of the petitioner for the Post of Headmaster with effect from the date of his retirement i.e. 31.12.99 and for payment of the same to him after deduction what has been paid to him as pension fixing the same for the Post of Assistant Teacher. And/or for any other appropriate relief(s) to the petitioner for which he may be found entitled in the eye of law.” Mr. Singh, while pressing the aforementioned prayer, would submit that if the Commission had made recommendation for grant of promotion to the petitioner on 25.4.1998 and the same still could not be acted upon till the date of retirement of the petitioner on 31.12.1999, the subsequent order of the Director, Secondary Education dated 26.11.2004 filed during the pendency of this writ application depriving the petitioner for grant of promotion on account of his retirement, would amount to arbitrary exercise of power. He would submit that such claim of promotion of the petitioner, being against the prescribed quota, the respondents were required to notify such promotion so that the petitioner could get benefit in the 3 matter of pay-fixation from 2.10.1980 to 31.12.1999. Counsel for the State, on the other hand with the help of the counter affidavit would submit that the Circular No. 510 dated 20.11.1981 did not envisage the concept of automatic Time Bound Promotion rather it only meant considering the case of the Teachers of a particular school treating them to be unit and therefore, when the petitioner has not been able to pin point even a single case where any one of his juniors were granted such promotion on a date earlier to the retirement of the petitioner, he cannot claim promotion as a matter of right in the form of Time Bound Promotion. In this context, he would place reliance on the recommendation of the Commission dated 25.4.1998, which only go to show that the Commission also had not given such recommendation a retrospective effect from 2.10.1980, rather the same was made operative only from the date of recommendation i.e. 25.4.1998 itself. There is no difficulty in understanding the heartburning of the 4 petitioner but then the respondent State and its officials have treated the case of the petitioner under the concept of regular promotion, which would envisage the continuance of the person in service on the date which such promotion is to be notified, It is true that the sense of an expectation and resultant frustration had crept in the mind of the petitioner on account of not being given such promotion even from the date of recommendation of the Commission and in process also depriving him to get the financial benefits but, then, whenever such an action is questioned in law, it will have to be answered in the strict terms of service jurisprudence which is very clear that if there was no concept of automatic promotion in the Circular dated 20.11.1981 for either from the date of recommendation of the Commission or from the date of vacancy as would be apparent from its following extract ^^---------5- iz/kkuk/;kid ds fjDr inksa ij izksUufr gsrq iz/kkuk/;kid dh ;ksX;rk j[kus okys fo|ky; fo'ks"k ds lHkh f'k{kdksa ds lEcU/k esa v|ksfyf[kr lwpuk] ewy lsok vfHkys[kksa ls mudk lR;kiu dj rFkk uhps dafMdk 6 esa of.kZr vfHkys[k lR;kfir dj vius Li"V eUrO; ds lkFk ftyk f'k{kk inkf/kdkjh] 5 funs'kd ¼ek/;fed f'k{kk½ dks HkstsaxsA ¼i½ ekU;rk izkIr ek/;fed fo|ky; esa izFke fu;qfDr dh frfFk ,oa lsok lekfIr dh frfFkA ¼i½ oRrZeku fo|ky; esa fu;qfDr dh frfFkA ¼i½ tUe frfFkA ¼i½ fu;qfDr ds le; ;ksX;rkA ¼i½ Lukrd gksus dh frfFkA ¼i½ mPprj ;ksX;rk,a izkIr djus dh frfFk@frfFk;kaA ¼i½ izf'kf{kr gksus dh frfFkA ¼i½ oRrZeku osruekuA ¼i½ oRrZeku osrueku ikus dh frfFkA ¼i½ vfHk;qfDrA 6- funs'kd fdlh fo|ky; fo'ks"k ds fy, ojh;rk dze ls vf/kdre vf/kdre rhu f'k{kdksa ds uke v|ksfyf[kr vfHkys[kksa ds lkFk izksUufr gsrq fo|ky; lsok cksMZ dks vxzlkfjr djsaxsA ¼d½ f'k{kd dh lsok iqfLrdkA ¼[k½ foxr 5 o"kksZa dk xksiuh; pfj= iqfLrdkA ¼x½ vU; laxr vfHkys[k ftuls f'k{kd ds dk;Z ,oa vkpj.k ij izdk'k iM+rk gksA 7- fo|ky; lsok cksMZ lEcU/kh vfHkys[kks ds vk/kkj ij viuh vuq'kalk jkT; ljdkj dks HkstsxkA cksMZ izksUufr ds ekeys esa fo|ky; vFkok f'k{kd ls lh/ks i=kpkj ugha dj lHkh i`PNk;s ek/;fed f'k{k funs'kd dks lEcksf/kr djsxkA 8- izkIr vuq'kalkvksa ds vk/kkj ij funs'kd ¼ek/;fed f'k{kk½&lg fo'ks"k lfpo izk/kkuk/;kidksa dks izksUufr lEcU/kh vkns'k tkjh djsxkA 9- ftu fo|ky;ksa esa iz/kkuk/;kid ds in ds fy, visf{kr ;ksX;rk j[kus okys f'k{kd ugha gksxk ogka iz/kkuk/;kid ds in lh/ks fu;qfDr ls Hkjs tk;saxsA** 6 the petitioner cannot claim it as a matter of right from such a retrospective date Promotion normally is to be made operative only from the prospective date. It is only the Time Bound Promotion envisaging completion of certain number of years of service which has to be notified even from a retrospective date. This aspect of the matter in fact is no longer res-integra, inasmuch as, a case from this Court it was decided by the Apex Court holding that regular promotion is to be made operative only from the date of notification of the order. The Apex Court in the case of Bihar State Electricity Board & Anr. Vs. Chitranjan Kr. Birnavay & Anr. reported in 2001(3) PLJR 156 (S.C.) had held that regular promotion cannot be claimed from the date of vacancy and in that regard it was laid down that: "...... The respondent's non- promotion w.e.f. 1.3.1982, as claimed by him, cannot be held to have conferred any right of promotion on that date particularly when the seniors to the Respondents were considered for promotion only in 7 March and April 1986. In the aforesaid promises the impugned direction of the High Court directing promotion of the Respondent to the post of Under Secretary w.e.f. 1.3.1982 cannot be sustained in law......." As a matter of fact even this court on the earlier occasion while considering the same grievance of the petitioner in C.W.J.C. o. 4528 of 1995 in its order dated 14.7.1995 had not found the petitioner eligible for such retrospective promotion w.e.f. the date of vacancy inasmuch as when the post of Headmaster of his school was filled up by a regular headmaster and was questioned by him, it was only held as follows:- "....... The petitioner who is at present working as Acting Headmaster of Town High School, Munger has filed the present application for quashing the order dated 26.6.95 passed by the Director, Secondary Education by which the respondent no. 4 has been posted as Headmaster in the said school. The petitioner has challenged the aforesaid order primarily on the ground that the vacancy to the post of Headmaster in the school in question occurred prior to 2.10.80 that is on the date when the school 8 in question and taken over under the provision of Bihar Non-Government Secondary School (Taking over Management and Control) Act and as such the said vacancy has to be filled up from the eligible teachers of the said school by treating the same as independent unit. It is well settled by now that if vacancy is prior to 2.10.80 then the school is to be treated as Trade endent Unit and if in any teacher of the school fulfils the requisite criteria for from to the Headmaster then he should be promoted as Headmaster. But it does not mean that he should be promoted and should in the same school for the simple reason that upon take over of the school all the employees have become government servant and after promotion even by treating the school as Independent Unit the teacher can be transferred to some after places. Accordingly, the petitioner cannot have grievances as far the posting of respondent no. 4 as Headmaster in the Town High School Munger in concerned. So far the second grievance of the petitioner is concerned that he is not being promoted in terms of letter no. 510 dated 20.11.81 to the post of Headmaster it appears that the said matter is pending before the 9 Director, Secondary Education, vide Annexure-6. In that view of the matter, the Director Secondary Education is directed to dispose of the matter within a period of three months from the date of receipt/production of a copy of the order. It goes without paying that if the petitioner is found fit for promotion by treating the vacancy prior to 2.10.80 then he should be promoted and posted of Headmaster." Thus if the vacancy of the Headmaster of the school was also filled up on 26.6.1995 the petitioner cannot claim retrospective promotion w.e.f. 2.10.1980 in his own school due to want of vacancy. If however the petitioner would claim promotion on any other vacancy on the post of Headmaster with retrospective effect he will have to prove that juniors to him were given such promotion and only in that case his promotion can be given with retrospective effect from the date any of his juniors were given such promotion. This aspect of the matter however has not at all been pleaded by the petitioner and therefore the counter affidavit filed only on 12.7.2010 after service of a copy on the 10 counsel for the petitioner is also completely silent on this aspect this Court would, therefore give liberty to the petitioner to even now demonstrate before the authority that any junior to him in the cadre of Assistant Teacher was given promotion with effect from a date till he remained in service i.e. 31.12.1999 and in the event the petitioner would furnish such proof, the respondents would be duty bound to reconsider their decision by reviewing their order dated 26.11.2004 which infact has also not been assailed by the petitioner in this writ application, rendering this writ application infructuous. That being so, this Court would not find any merit in this writ application and the same is accordingly dismissed with the aforementioned liberty. Patna High Court Dated the 19th July 2010 AFR/Rsh (Mihir Kumar Jha, J.)