IN THE HIGH COURT OF JUDICATURE AT PATNA (LETTERS PATENT APPELLATE JURISDICTION) LPA No.15 of 2008 1. RAJDEO SINGH Son of Sri Dashrath Singh, Science Teacher Upgraded Midle School, Goria Dera, Phulwarisharif, P.S. Janipur, Distt. Patna. 2. Harendra Choubey,son of Late Sri Ram Choubey, Science Teacher, Primary School, Ramjee Chak, Danapur, P.S. Digha, Distt. Patna. ……………………..Appellants. Versus 1. THE STATE OF BIHAR 2. The Secretary Cum Commissioner, Human Resources Development Department, government of Bihar, Patna. 3. The Director, Primary Education, Govt. of Bihar, Patna. 4. The District Education Establishment committee, Patna, its Chairman Cum District Magistrate, Patna. 5. The District Superintendent of Education, Patna. 6. Sri Surya Nath Singh, Science Teacher, Abhasik Middle School, Barh, Patna. 7. Sri Kameshwar Prasad, Science Teacher, Middle School, sonaru, Fatuha, Patna. 8. Sri Raghu Nandan Prasad, Science Teacher, Middle School, Punaichak, Gardanibagh, Patna. 9. Sri Nand Kishore Sharma, Science Teacher, Middle School, Maner, Patna. ………………………..Respondents. For the Appellants:- Mr. Rajendra Prasad Singh, Sr. Advocate. For the Respondents: Mr. V.M.K. Sinha, S.C.III. ----------- PRESENT. THE HON’BLE JUSTICE SMT. T. MEENA KUMARI. THE HON’BLE MR JUSTICE MIHIR KUMAR JHA. ………… ORDER. (01.12.2010) …….. 12 This appeal arises out of order dated 3.12.2007 in C.W.J.C. No. 420 of 2007, whereby and whereunder, the learned Single Judge has dismissed the aforesaid writ petition of the Appellants-writ petitioners seeking basically the relief for grant of their B.Sc. trained scale of pay w.e.f. 1.4.1991, the date from which respondent nos. 6 to 9, allegedly their junior, are said to have been given such promotion. 2. In order to appreciate the issue involved in this appeal it would be necessary to take into account the material facts. The appellants-writ petitioners were initially appointed as 2 Assistant Teachers in the Primary Schools on 3.3.1974 as untrained matriculates. The respondent nos. 6 to 9 who had been acquiring qualification of matriculation and also of the teachers training course passed by them in the year 1976 were appointed as matric trained teachers initially on stipend on 21.11.1980 and later on in the prescribed pay scale w.e.f. 1.4.1981. By virtue of the existing seniority rules they being matric trained were senior to the appellants-writ petitioners, who as noticed above, were untrained teachers with only qualification of matriculation. Later on the appellants-writ petitioners had passed the Intermediate examination in Science in the year 1983 and had also acquired the qualification of training in the year 1984, by virtue of which they were given the pay scale of I.Sc. Trained teacher w.e.f. 27.1.1984. Later on all of them, namely, the appellants-writ petitioners and respondent nos. 6 to 9 had passed their B.Sc. examination in the year 1989-90 and when on 9.7.1993, Bihar Taken Over Elementary School Teachers Promotion Rule 1993 (hereinafter referred to as the 1993 Rules) was brought into force with effect from the retrospective date, i.e. 1.1.1986, a seniority list was prepared in 4.7.1995 wherein the respondent nos. 6 to 9 in the zone of seniority list of 160 teachers of Patna District Trained Graduate Science Teachers were placed at Sl. Nos. 47, 58, 59 and 65, whereas, the two appellants-writ petitioners were placed at Sl. Nos. 145 and 146 respectively. 3. It is to be noted that when the said seniority list was circulated appellant no.1 had filed a representation on 23.2.1995 for correction of his seniority position on the strength of 3 his date of acquiring B.Sc. qualification, whereafter he was given an opportunity of hearing by the District Superintendent of Education, Patna on 9.5.1995, but his inter-se seniority, vis-à-vis respondent nos. 6 to 9 had remained un-altered and the respondent nos. 6 to 9 were granted promotion in the B.Sc. trained scale of pay on 7.7.1995. Even at that stage the appellants-writ petitioners had filed their representation on 6.1.1996 and 12.2.1996 respectively claiming promotion in the B.Sc. trained scale of pay w.e.f. 1.4.1990, i.e. anterior date to the date of promotion of respondent nos. 6 to 9 by taking a plea of there being error in seniority list of 1995. It, however, appears that the decision of promotion of respondent nos. 6 to 9 was not altered. 4. The appellants-writ petitioners thereafter had remained silent for next nine years before filing their writ application in this Court some time in the year 2005. Their such writ application, C.W.J.C. No.5815 of 2005 was disposed of by order dated 3.7.2006 which reads as follows:- “The petitioners by this writ application have prayed for issuance of directions upon the respondents to pay them B.Sc. trained scale with effect from 1.4.1990 and 1.4.1991 as their juniors including respondent nos. 5 to 8 have been promoted in B.Sc. trained scale with effect from 1.4.1991. It is contended by counsel for the petitioners that respondent nos. 5 to 8, who are junior to the petitioner, were granted B.Sc. trained scale, vide order as contained in annexure-8 dated 7.7.1995, but it was not given to the petitioners for the reasons best known to the authorities. The petitioners thereafter went on representing before the authorities concerned, but till date their grievances have not been redressed nor they have been given the admissible scale. The petitioners may have a case for grant of B.Sc. trained scale, but this writ application, in may opinion, should not be 4 entertained as they are approaching this Court almost after ten years of the accrual of the cause of action. The petitioners, as it is said, have represented their case before the authorities concerned. Accordingly, the petitioners may pursue the matter departmentally for redressal of their grievances which would be considered and disposed of by the authorities concerned in accordance with law expeditiously and not beyond a period of three months from the date of receipt/production of a copy of this order. With this direction/observation, this application is disposed of.” 5. From the aforesaid order it would become clear that this Court had categorically refused to entertain the writ petitioner and had declined to interfere either with the promotion of respondent nos. 6 to 9 or for allowing promotion in B.Sc. trained scale of pay to the appellants-writ petitioners w.e.f. the date claimed by them, i.e. 1.4.1990 and 1.4.1991 on the ground of delay and had left them to pursue their departmental remedy. 6. The appellants-writ petitioners however had filed their fresh representation on 24.7.2006 wherein apart from other facts they had given reference to the aforesaid order of this Court dated 3.7.2006 for claiming their promotion in the B.Sc. trained scale of pay w.e.f. 1.4.1990 and 1.4.1991 and the selection grade of the B.Sc. trained scale of pay w.e.f. 1.4.2002 and 1.4.2003 which came to be rejected by an order dated 7.12.2006 of the competent authority:- “;g vkns'k C.W.J.C. la[;k 5815@05 jktnso flag ,oa vU; ouke jkT; ljdkj ,oa vU; esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns’k ds vkyksd esa onhx.k }kjk lefiZr vH;kosnu ds fu’iknu ikfjr fd;k tk jgk gSA oknhx.k dze'k% Jh jktnso flag lgk;d f'k{kd m- e/; fo|ky; xksfM+;k Msjk Qqyokjh”kjhQ rFkk Jh gjsUnz pkScs l0 f’k{kd izk0 fo0 ugj ij nkukiqj&1 }kjk ;kpuk dh xbZ gS fd muls duh; f”k{kd izfroknh la0 5 ls 8 rd dks Lukrd foKku izf’kf{kr ds osrueku esa izksUufr nh xbZ gS] bl fy;s mUgsa Hkh Lukrd 5 foKku izf’kf{kr dk osrueku dze’k% 1990 ,oa 1991 ls Lohd`r djrs gq, iz/kkuk/;kid ds in ij inLFkkfir fd;k tk;A izLrqr ekeys esa ekuuh; mPp U;k;ky; }kjk fuEu fyf[kr vkns’k”ikfjr fd;k x;k gSA The petitioners may have a case for grant of B.Sc. trained scale, but this writ application, in my opinion, should not be entertained as they are approaching this court almost afgter ten years of the accrual of the cause of action. The petitioners, as it is said, have represented their case before the authorities concerned. Accordingly, the petitioners may pursue the matter departmentally for redressal of their grievances which would be considered and disposed of by the authorities concerned in accordance with law expeditiously and not beyond a period of three months from the date of receipt/production of a copy of this order. mijksDr ds vkyksd esa onhx.k }kjk fnukad 24-7-06 dks vH;kosnu lefiZr fd;k x;k rnuqlkj fnukad 02-09-06 dks oknhx.k ds ekeys dh lquokbZ dh xbZA ftlesa muds }kjk “kS{kf.kd ,oa iz’kS{kf.kd izek.k i= lk{; ds :I esa miLFkkfir fd;k x;kA rnuqlkj laxr lafpdk esa jf{kr dkxtkr ,oa dk;kZy; esa miyC/k vU; vfHkys[kksa dh leh{kk dh xbZA leh{kksijkar fuEufyf[kr rF; Li’V gqvkA 1&oknhx.k fu;qfDr ds le; vizf’kf{kr Fks tcfd izfroknhx.k fu;qfDr ds le; izf’kf{kr Fks A 2&oknhx.k 27&01&84 dks izf’k{k.k dh ijh{kk esa mRrh.kZ gq, gSa A 3&oknhx.k 1989 esa Lukrd dh ijh{kk mRrh.kZ gq, tcfd izfroknhx.k 1989 ds iwoZ ls gh Lukrd izf’kf{kr Fks A 4&izksUufr fu;ekoyh 1993 ds vkyksd esa dEi;wVj }kjk fufeZr ojh;rk lwph dh fLFkfr fuEuor~ gS d&Jh jktnso flag] oknh la[;k 1 dk uke dzekad 146 rFkk Jh gjsUnz pkSos oknh la[;k 2 dk uke 147 ij vafdr gS A [k&Jh lw;ZukFk flag] izfroknh la[;k 5 dk uke dzekad 48 ij] Jh j/kquUnu izlkn izfroknh la[;k 7 dzekad 60 ij ,oa Jh uUn fd’kksj ”’kekZ izfroknh la[;k 8 dk uke dzekad 66 ij vafdr gS A** mijksDr ls Li’V gS fd oknhx.k ls izfroknh la[;k 5 ls 8 ojh; gS] u fd duh; gSA rnuqlkj in dh miyC/krk] vgZrk] ojh;rk ,oa jksLVj fcUnq ds vk/kkj ij izfroknhx.k ,oa vU; dh izksUufr nh tk pqdh gSA ;gka ;g vafdr djuk izlkafxd gS fd izksUufr gsrq ojh;rk dh vk/kkj ek= fu;qfDr frfFk gh ugha gS cfZYd ojh;rk dk vk/kkj fu;qfDr frfFk] tUe frfFk] ;ksX;rk ,oa osrueku dh Lohd`fr frfFk Hkh gS] ds vk/kkj ij ojh;rk lwph dk fuekZ.k fd;k tkrk gSA ojh;rk lwph dh fLFkfr mij n”kkZ;k tk pqdk gS ftlls Li’V gksrk gS fd rRdky dk;kZy; esa miyC/k Lukrd foKku izf’kf{kr ds osrueku esa izksUufr dk nkok ugha curk gSa blls ;g Li’V gksrk gS fd tc Lukrd izf’kf{kr osrueku dk gh nkok ugha curk gS rks iz/kkuk/;kid ds osrueku Lohd`r djus dk dksbZ iz’u gh ugha mBrk gSA mijksDr of.kZr rF;ks ds vkyksd esa oknhx.k ds nkok dks vLohd`r djrs gq, muds }kjk lefiZr vH;kosnu dk fuLrkj fd;k tkrk gSA 6 g0@& jke lkxj izlkn flag ftyk f’k{kk v/kh{kd] iVukA Kkikad 9445 @ iVuk] fnukad 7-12-06 @ 7. It is the aforementioned order dated 7.12.2006 which was made subject matter of the connected writ petition C.W.J.C. No. 420 of 2007, wherein the appellants-writ petitioners had prayed for the following relief:- “That this is an application for issuance of appropriate writs, order(s), direction(s) for quashing of an office order issued vide memo No.9445 dated 7.12.06 by the District Superintendent of Education, Patna whereby and whereunder petitioners representation dated 24.7.06 filed in view of Hon‟ble Court‟s order dated 3.7.06 passed in C.W.J.C. No.5815 of 2005 has been rejected. And also for issuance of direction to pay the B.Sc. trained scale to the petitioners w.e.f. 1.4.1990 and 1.4.1991 as their juniors including respondent nos. 6 to 9 have been promoted in B.Sc. trained scale w.e.f. 1.4.91.” (underlining for emphasis) 8. The learned Single Judge by his order dated 3.12.2007 in C.W.J.C. No.420 of 2007 had rejected their aforementioned prayer and while dismissing the writ application had also recorded the following findings:- “Two petitioners, namely, Rajdeo Singh and Harendra Choubey, have joined this writ petition for a direction to the respondent authorities to give to them the benefit of B.Sc. trained scale with effect from 1.4.90 and 1.4.91, respectively, the dates on which their juniors (respondent nos. 6 to 9) were so given the money benefits. It appears that the petitioner had earlier moved this Court by preferring C.W.J.C. No.5815 of 2005, which was disposed of by order dated 3.7.2006 (Annexure 16), whereby the petitioners were directed to pursue the matter departmentally for redresssal of their grievance. Their representation has since been rejected by order dated 7.12.2006 (Annexure 1), wherein it has been found that the petitioners were untrained teachers at the time of their entry in the service whereas respondent nos. 6 to 9 were trained graduates. It has been further found that the two petitioners rank at sl. No. 146 and 147, respectively, of the gradation list, 7 whereas respondent nos. 6 to 9 rank much higher than them. It thus appears to me that the petitioners have not been able to establish their claim for grant of the benefits from the dates claimed herein. The claims have been rejected for valid reasons. Learned counsel for the petitioners places reliance on paragraphs 31 and 32 of the writ petition in an effort to establish that they are senior to respondent nos. 6 to 9. The same are self serving statements of the petitioners and are wholly unsubstantiated by documentary evidence. The impugned order cannot be faulted. The writ petition is accordingly dismissed.” 9. Assailing the aforesaid order Mr. Rajendra Prasad Singh, learned Senior Counsel appearing on behalf of the appellants-writ petitioners has submitted that the competent authority while passing the impugned order dated 7.12.2006 had, in fact, made an error in holding either the appellants-writ petitioners to be junior to respondent nos. 6 to 9 or to be bound by the earlier seniority list of the year 1995 especially when the said seniority list was never circulated. He has further submitted that the issue of inter-se seniority between the matric trained teacher and the I.Sc. trained teacher having been settled by the Division Bench judgment of this Court dated 6.3.1998 in C.W.J.C. No.9138 of 1993 (Yugeshwar Yadav & Ors Vs. the State of Bihar & Ors), the appellants-writ petitioners were entitled tobe treated to be senior to respondent nos. 6 to 9 and consequently also entitled for promotion in the B.Sc. trained scale of pay from 1.4.1990/1.4.1991, the date on which the respondent nos. 6 to 9 were granted such promotion in the B.Sc. trained scale of pay. 10. Per contra, learned counsel for the State supporting the order of the learned Single Judge has submitted that 8 the appellants-writ petitioners cannot be allowed to raise an issue of inter-se seniority as against respondent nos. 6 to 9 which would have an effect of unsettling the settled seniority position of last 30 years ever since respondent nos. 6 to 9 were appointed as matric trained teachers at a point of time when the appellants-writ petitioners were admittedly untrained matric teachers. He has also submitted that merely because the appellants-writ petitioners had passed their I.Sc. examination in the year 1983 and the training examination in the year 1984 and were given the pay of I.Sc. trained teacher scale of pay, that could not have improved their inter-se seniority as against respondent nos. 6 to 9 inasmuch as even as per the earlier rule issued by the Government notification dated 18th December, 1984, there was concept a three categories of teachers, namely, teachers of trained graduate, teachers of Intermediate trained graduate and teachers of matric trained and promotion was to be earned from the matric trained to Intermediate trained and Intermediate trained to graduate trained. He has therefore laid emphasis that when the appellants-writ petitioners were never given promotion in the I.Sc. Trained scale of teachers, their being given I.Sc. trained pay scale only on the basis of their acquiring qualification of I.Sc. trained in no way whatsoever could have made them senior to respondent nos. 6 to 9 and others who from the inception were Matric trained teachers. Learned Counsel for the State has also in this context placed reliance on the earlier inter party order of this Court dated 3.7.2006 in C.W.J.C. No. 5815 of 2005 to buttress his submission that once this Court had refused to entertain their such plea on the 9 ground of delay, the same issue of earning promotion w.e.f. 1990- 91 could not be re-opened only by obtaining an order on their fresh representation. 11. In our considered opinion the writ application of the appellants-writ petitioners was fit to be dismissed on the ground of delay alone, inasmuch as, the appellants-writ petitioners in the garb of challenging the impugned order dated 7.12.2006 in fact have claimed same relief of B.Sc. trained scale pay w.e.f. 1990-91 which was denied to them earlier by this Court in their earlier writ petition. Infact they having filed a fresh representation and obtained order thereon have virtually raised the same issue of their seniority and promotion as against respondent nos. 6 to 9 which, as noted above, is a cause of action of the year 1991 to 1995. If today the claim of the appellants-writ petitioners for their revision in the seniority list of the year 1995 is upheld it would cause real upheaval in the settled seniority of 160 teachers especially when their such seniority list of the year 1995 has also been acted upon way back in the year 1995 by giving promotion to number of persons including respondent nos. 6 to 9 figuring at SL. Nos. 47, 58, 59 and 65 wherein the appellants-writ petitioners were placed at Sl. Nos. 145 and 146. Allowing such belated claim of the appellants-writ petitioners, in fact, would give fresh cause of action to at least more than 100 other teachers whose names have been placed at SL. Nos. 66 to 144 of 1995 seniority list for claiming similar relief of grant of B.Sc. trained scale of pay w.e.f. 1.4.1990. In fact, it was solely on this ground alone that on an earlier occasion this Court in its order dated 3.7.2006 had refused 10 to entertain the writ application of the appellants-writ petitioners. 12. By now, it is also well settled that public interest in the administration requires that the settled seniority should not be lightly disturbed and unsettled after a long lapse of time. Reference in this connection may be made to the following passage of the judgment of Apex Court in the case of „Maloom Lawrence Cecil D’Souza Vs. Union of India’ reported in AIR 1975 SC 1269, wherein it was held as follows:- “Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should a least be possible to ensure that matters lime one‟s position in the seniority list after having been settled for once should not be liable to be reopened after lapse of may years at the instance of a party who has during the intervening period chosen to keep quiet. Backing up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.” 13. This Court, in fact, is of the considered opinion that the exercise of discretion against granting relief on the ground of delay and laches is ultimately in aid of ensuring that settled seniority is not disturbed. The principle is based on pragmatic considerations. If a seniority list is invalidated long after its publication and in the meantime employers and employees have acted upon it resulting in promotion being granted in accordance with the list over a number of years and covering a number of persons, it would not only be highly unreasonable and unfair to put 11 such promotions in jeopardy but the resultant administrative chaos and inconvenience could be unmanageable. There could also be serious financial repercussions on the employer. It would be difficult for the employer to ask those who have been promoted to revert back to the feeder posts or to refund the financial benefits of such promotion. Reference in this connection may be made to the judgment of the Apex Court in the case of „Rabindra Nath Bose Vs. Union of India’ reported in AIR 1970 SC 470 as also in the case of „G.C.Gupta Vs. N.K. Pandey’ reported in AIR 1988 SC 268 and in the case of „B.S. Bajwa Vs. State of Punjab’ reported in AIR 1999 SC 1510, wherein it has been consistently held that the judicial review may be declined where there has been inordinate delay in questioning the seniority. Thus, in our considered opinion the delay itself in the present case would be fatal to the appellants-writ petitioners especially when their earlier writ application being C.W.J.C. No.5815 of 2005 was refused to be entertained by this Court on this very ground as would be apparent from the order of this Court dated 3.7.2006. 14. We, however, would not like to dismiss this appeal by affirming the order of the learned Single Judge, only on the ground of delay and laches especially when the learned Single Judge has also gone into the merits of the case. As noted above, the entry of the appellants-writ petitioners as teachers in the year 1974 was as untrained matric teachers and in fact they remained so even on the date when respondent nos. 6 to 9 were appointed as matric trained teachers in the year 1990-81. Thus, only because they had passed their Intermediate of Science examination in the 12 year 1983 or had acquired the qualification of training in the year 1984 could not have made them senior if they were never promoted in the I.Sc. trained scale of teachers at a point of time when there were three categories of teachers as has been also noticed in paragraph 11 in the judgment of the Division Bench in the case of Yugeshwar Yadav (Supra). In this context the order dated 31.7.1984 passed in the case of appellant-writ petitioner no.1 and the order dated 29.9.1984 in the case of appellant-writ petitioner no.2 would go to show that they had been merely given I.Sc. trained scale of pay, but in terms of cadre rules of 1984 they were never given any such promotion to the exclusion of respondent nos. 6 to 9 and therefore if 1993 Rules was given retrospective operation w.e.f. 1.1.1986 and all the teachers of Intermediate trained grade and matric trained grade were granted the same basic pay scale of Rs.1200-2040/- by placing them in Grade-I of the teachers of 1993 Rules, their earlier inter-se seniority had also remained un-affected, inasmuch as, in no seniority list the appellants-writ petitioners claimed to have been placed above respondent nos. 6 to 9 by virtue of their being granted I.Sc. trained scale of pay. 15. As noted above, when the gradation list (seniority list no. 2) was also drawn in terms of 1993 Rules in strict application of its Rules 7 and 8, the seniority position of respondent nos. 6 to 9 above the appellants-writ petitioners was kept intact by placing them at SL. Nos. 47, 58, 59 and 65 as against the appellants-writ petitioners at SL. Nos. 145 and 146. In fact, this was also done completely in consonance with the 13 provisions of Rule 7(2) which reads as follows:- “Seniority list no. 2 (which shall be for promotion to Grade-4)- (i) This list shall be prepared separately for arts and science teachers. (ii) The teachers shall be placed in this list in the following orders:- (a) Trained graduate working in Grade-3; (b) Trained graduate working in ghrade-2; (c) Trained graduate working in grade-1 and who have completed minimum 8 years of service in grade-1." 16. It has to be noted that neither the appellants- writ petitioners nor the respondent nos. 6 to 9 were working in Grade-2 or Grade-3 post which under the 1993 Rules was defined to be matric trained senior scale and matric trained selection scale and in fact on 1.1.1986 all of them were treated to be in matric trained scale of pay of Rs.1200 to Rs. 2040/-. Thus, respondent nos. 6 to 9 having been appointed as matric trained teacher right from inception in the year 1980-81 were all along senior to the appellants-writ petitioners, who as noted above, were untrained matric teachers at the