IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12461 of 2002 Balchand Gahlaut, Son of Late Karu Gahlaut, Resident of Village Paranpura, Police Station Sirdala, District Nawada. --------- Petitioner Versus 1. The State of Bihar, through the Commissioner-cum-Secretary, Primary and Adult Education, Government of Bihar, New Secretariat, Patna. 2. The Director, Primary Education, Government of Bihar, New Secretariat, Patna. 3. The Regional Deputy Director, Magadh Division, Gaya. 4. The District Superintendent of Education, Nawada. 5. The Headmaster, Middle School, Paijna, Block Akbarpur, P.O. Paharpur, District Nawada. ---------- Respondents ----------- 3 28.06.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- 1(i) For a direction on the respondent-authorities to provide the petitioner B.A. trained scale with effect from the date his juniors have been granted such scale. (ii) For a further direction on the respondent authorities to consider the case of the petitioner for his promotion to the post of Headmaster against any vacant post and for the grant of consequential benefits thereof from the date his junior has been given such promotion and benefits.” Mr. Dhruba Mukherjee, learned counsel for the petitioner, with reference to the aforementioned prayer, would submit that all said and done it is now an admitted case as would also be borne out from the counter affidavit that the petitioner was all along senior to one Ram Dayal Chaudhari at all point of time 2 and yet Mr. Chaudhari was given the Graduate Trained Scale of Pay to the exclusion of the petitioner. He in this context has referred to the statement in paragraph no. 16, 17 & 18 of the writ application, which reads as follows:- “16. That from the above seniority list, it would be evident that one Ram Bhaju Mahto has been placed at Serial No.16 and one Ram Dayal Chaudhari has been placed at serial no.28 since both of them are junior to this petitioner. 17. That from the above seniority list, it would be manifest and clear that the petitioner joined on 30.6.1975 and was granted Junior Matric scale with effect from 1.4.1981, Senior Matric trained scale with effect from 1.4.1984 and I.A. trained scale from 17.12.1987, whereas, the said juniors, namely, Ram Dayal Chaudhari joined on 30.6.1976, that is, after one year from the date of joining of the petitioner, got the Junior Matric scale with effect from 1.4.1981 and Senior Matric trained scale with effect from 1.4.1984. 18. That at this stage it is stated that said junior Ram Dayal Chaudhari was not only granted I.A. trained and B.A. trained scale illegally without the recommendation of the District Establishment Committee, but he has further been awarded with the post of Headmaster of Middle School, Medhkuri under Meskaur Block of Nawada district in 2001, whereas though the petitioner is admittedly senior to said Ram Dayal Chaudhari, the petitioner has neither been granted the B.A. trained scale, nor been considered for the post of Headmaster against any vacant post. Said Ram Dayal Chaudhari, before his posting as Headmaster, was a Teacher in Middle School, Kuhila of Akbarpur Block in the district of 3 Nawada.” On the basis of the aforesaid pleadings, Mr. Mukherjee would submit that when the same has also not be categorically denied in the counter affidavit filed by the respondents, the natural presumption would be that the petitioner has been wrongly denied the promotion at least from the date the juniors including Ram Dayal Chaudhari was given such promotion. Though the counsel for the State wanted to explain this aspect with the help of his counter affidavit but then ultimately he could discover that the paragraph nos. 11 & 12 of the counter affidavit which deals with the aforementioned crucial paragraphs no. 16 to 18 of the writ application as quoted above, have not been controverted so far it relates to the seniority position of the petitioner vis-à-vis Ram Dayal Chaudhari. Paragraph nos. 11 & 12 of the counter affidavit reading as follows; “11. That with regard to statement made in paragraph 15 and 16, it is stated that no gradatin list of B.A. and B.Sc. Trained teachers has been finalized after 1994 by the deptt/state govt. and the matter of finalization is still under consideration in the deptt. hence at this stage the respondent is not required to make any comment on this point. 12. That with regard to statement made in paragraph no.17,18,20,21,23 and 25, under reply it is humbly that the writ petitioner was not awarded trained gradation scale, because his name was not included in that seniority list.” in fact would only create an impression that it was largely on 4 account of the name of the petitioner missing from the seniority list that he had to suffer in the matter of grant of B.A. Trained Scale of Pay. Nonetheless, this Court would not put a final word in this regard, inasmuch as, grant of B.A. Trained Scale of Pay has virtually become an endless zigzag story. The concept of grant of B.A. Trained Scale of Pay being not only dependent on the qualification of being Graduate Trained but also dependant on a number of vacancies for each year in district cadre. It is true that seniority also has to be followed and in the event any junior is legally and validly granted such promotion in B.A. Trained Scale of Pay, the senior automatically becomes entitled if he possessed the required qualification for the same as prescribed in 1993 Rules. All these questions, however, being matter of fact and having been not really clarified in the counter affidavit, the issue will require fresh determination by the competent authority. In view of the fact that the petitioner is a Teacher of Middle School, such competent authority will be the District Superintendent of Education, who after making the examination in capacity of Secretary to District Education Establishment Committee will have to place the matter before the said Committee, which is the appointing and controlling authority of the teachers of primary and middle school. This court would accordingly give liberty to the petitioner to file a self-contained representation along with all the documentary evidence of his being senior to the persons who have been given B.A. Trained Scale of Pay and in the event such a 5 representation is filed by the petitioner, the same shall be disposed of by the District Establishment Committee through its Secretary, District Superintendent of Education within a period of four months from the date of filing of the representation. It goes without saying that in the event the petitioner is found entitled for such B.A. Trained Scale of Pay, its actual monetary benefit would also be extended to him from the same date from which his junior counterparts were given such benefit. Let it be however made clear that this Court has not decided the claim of the petitioner and therefore, it would be open for the District Establishment Committee to review the whole situation for deciding the case of the petitioner strictly in accordance with law. It goes without saying that if the petitioner is given Graduate Trained Scale of Pay, he would also be entitled for his consideration for promotion on the post of Headmaster, inasmuch as, the petitioner cannot be allowed to work under a junior and if junior to him already has become Headmaster, the petitioner also will be entitled for being considered on such promotion on the post of Headmaster. Therefore, the authorities having decided the claim of the petitioner with regard to the grant of B.A. Trained Scale of Pay would also be required to decide this claim of the petitioner as with regard to the promotion on the post of Headmaster which will be gone into and decided by the authority after the decision is taken on the grant of B.A. Trained Scale of Pay to the petitioner. 6 However, this exercise must also be completed in next three months from the date of such decision. Before parting with this order, it must be made clear that if no junior other than Ram Dayal Chaudhari has been given such promotion in B.A. trained scale of pay and the respondents have already taken a decision of cancelling the promotion of the aforesaid Mr. Chaudhari and implemented the same or would do so instead of promoting the petitioner because they may trigger claim of promotion in B.A. trained scale of pay of others who are senior to the petitioner and Mr. Ram Dayal Chaudhari, a clear speaking order to this effect would be passed by the concerned authority in the same period for its being communicated to the petitioner. In such event also the claim of promotion of the petitioner in B.A. trained scale of pay will be considered in the light of observations and directions in the case of Ram Nath Prasad Vs. State of Bihar & Ors. reported in 2009(3)PLJR 384. With the aforementioned observations and directions, this writ application is disposed of. Rsh (Mihir Kumar Jha, J.)