IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5801 of 2001 MUSAFIR ROY, son of late Kailash Roy, resident of village Pakwalia, P.O. Goraipur, P.S. Awatar Nagar, District Saran … Petitioner Versus 1. THE STATE OF BIHAR, through the Commissioner cum Secretary, Human Resources Department, Bihar, Patna 2. The Director, Primary Education, Bihar, Patna 3. The Divisional Commissioner, Saran at Chapra 4. The District Magistrate, Saran at Chapra 5. The Deputy Development Commissioner, Saran at Chapra 6. The District Superintendent of Education, Saran at Chapra 7. The District Education Officer, Saran at Chapra 8. Ram Sagar Pandit, son of not known, Middle School, Mahammada Garkha 1, Saran 9. Rama Nand Divedi, son of not known, Jabeshwar Middle School, Mauna Chapra, Saran 10. Kashi Nath Singh, son of not known, Kumna Middle School, Jalalpur 1, District Saran … Respondents ----------- 3. 26.8.2010 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “(i) For issuance of writ in the nature of mandamus or any other appropriate writ/writs, order/orders, direction/directions for commanding the State respondents to grant the B.A. trained scale to the petitioner with effect from the date of passing his B.A. examination with all consequential monetary benefits and also to grant the B.A. trained selection scale with effect from the date when the petitioner became eligible for the same with all 2 consequential monetary benefits and further to grant his due time bound promotion with effect from the due date as his time bound promotion with all consequential monetary benefits. (ii) For issuance of writ in the nature of certiorari or any other appropriate writ or writs/ order or orders, direction/ directions for quashing the order dated the 4th February, 1994, issued under memo no. 197, as contained in Annexure 3.” Counsel for the petitioner with respect to the aforementioned prayer would submit that the decision of the authority by the order dated 4th February, 1993 denying the petitioner promotion on the post of B.A. trained scale of pay was wholly unjustified and in fact when the same was pointed out by the petitioner by filing a series of representation followed by legal notice, no decision was taken on the same and therefore, the petitioner had to file this writ application on 1.5.2001. Counsel for the State, on the other hand, would submit that during the pendency of this writ application the whole issue as with regard to grant of promotion in B.A. 3 trained scale of pay stands settled by the judgment of the Full Bench of this Court in the case of Ram Nath Prasad Singh vs. The State of Bihar & ors., reported in 2009(3) PLJR 384, wherein a direction was given to prepare and issue a fresh gradation list for giving such promotion. He would also submit that pursuant to the said direction the gradation list was also prepared on 30.3.2010 in which the name of the petitioner has been placed at serial no. 181. He has also submitted that an order has been issued by the Director of Primary Education dated 4.1.2010 whereby and whereunder such promotion is not to be given with retrospective effect and therefore, the petitioner cannot get the benefit of promotion even if his name has been included at serial no. 181 of the gradation list of the teachers of the district of Saran. There are two aspects which would really come in the way of the petitioner from getting relief. Earlier the writ petition of the petitioner was filed in the year 1991 for the same relief and this Court had by its order dated 15.9.1992 remitted the matter to the District Education 4 Establishment Committee. The District Education Establishment Committee after considering the case of the petitioner on 27.1.1993 had rejected the case of the petitioner by holding as follows: Þfnukad 27-1-93 dks LFkkiuk lfefr dh cSBd dh dk;Zokgh dh izfrfyfi %& dk;Zokgh la[;k &3 lh0MCyw0ts0lh0 la[;k 7048@91 eqlkfQj jk; cuke` jkT; ds ekeys esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns”k fnukad 15-9-92 dks izkIr gqvk] ij fopkj fd;k x;k bl ;kfpdk ds }kjk Jh eqlkfQj jk; lgk;d f”k{kd] e/; fo|ky;] /kukSjk] xM+[kk ds ch0,0 izf”kf{kr osrukeku dk nkok fd;k gSa ojh;rk lwfp ds vuqlkj Jh jk; eSafVªd izf”kf{kr laoxZ ds duh; izoj dksfV ds Øekad 109 ij budk uke gS] bl izdkj eSfVªd izf”kf{kr ds duh; izoj dksfV esa 108] eSfVªd izf”kf{kr ds ojh; izoj dksfV ds lHkh f”k{kd rFkk vkbZ0,0 izf”kf{kr ds lHkh f”k{kd buls ojh; gSA buesa 232 ,sls f”k{kd gSa ftudh ;ksX;rk oh0,0 izf”kf{kr dh gS vkSj tks buls ojh; gSA foHkkxh; vf/klwpuk la[;k 2440 fnukad 18-12-94 ds vuqlkj vkbZ0,0 izf”kf{kr ds ojh; izoj dksfV ds f”k{kdksa dks ojh;rk] vkj{k.k ,oa fjfDr ds vk/kkj ij ch0,0 izf”kf{kr dk osrueku` Lohd`r djus dk izko/kku gSA bl izdkj Jh jk; dk nkok lgh ugha gSA vr% loZlEefr ls buds nkos dks vLohd`r fd;k tkrk gSA g0@& ;equk fxfj g0@lh0 ds feJk ftyk f”k{kk v/kh{kd lg lfpo ftyk inkf/kdkjh lg ftyk f”k{kk LFkkiuk lfefrv/;{k] ftyk f”k{kk LFkkiuk lfefr A Kkikad 197 @& Nijk fnukad 4 Qjojh] 1993Þ It is not in doubt that the petitioner had received copy of such order dated 4.2.1993, inasmuch as he had filed his protest to the said decision on 12.3.1994 (Annexure 4). In that view of the matter, this writ application filed after eight years of the impugned order rejecting the claim of the petitioner for grant of B.A. trained scale of pay must be held to be grossly over delayed. 5 Secondly, the plea of the petitioner now taken after the decision of the Establishment Committee that at least three persons, namely respondents no. 8 to 10 were such persons who were junior to the petitioner is not based on any documentary evidence. Mere giving of date of appointment of some teacher or date of passing of examination of the petitioner vis-à-vis respondents no. 8 to 10 by itself would not clinch such issue, inasmuch as the plea of discrimination once raised by a party has to be established in order to get a relief on that ground alone. There is no document to show that respondents no. 8 to 10 are the junior to the petitioner. Thus now when the Full Bench having upheld 1993 Rules for promotion in B.A. trained scale pay, having its retrospective operation since 1.1.1986 had once again directed for drawing a fresh gradation list and such promotion had to be given only on the basis of such new gradation list, the case of the petitioner can be considered for grant of B.A. trained scale of pay only if he can now show from the present gradation list that anyone junior to him was given 6 such promotion and he was also allowed to also retain it in terms of 1993 Rules. In that view of the matter, this writ application is disposed of with a liberty to the petitioner to file a compact representation in the light of the observation made above by pointing out the name of such persons who despite being junior to the petitioner in the latest gradation list dated 30.3.2010 had still been given and also allowed to retain the benefit of such promotion in B.A. trained scale of pay. If the petitioner can pinpointedly show such cases, in that event, the District Superintendent of Education having examined the same will place the case of the petitioner with his views before the District Education Establishment Committee for a final decision and the said Committee will take its own decision without being guided by the order issued by the Director of Primary Education dated 4.1.2010, inasmuch as in that event if the juniors to the petitioner were allowed to hold the post of B.A. trained scale of pay and the petitioner was denied such promotion at the relevant point of time, the respondents 7 cannot now deprive the same to the petitioner on the ground of such promotion being not allowed from a retrospective date. On the other hand, if it is found that none of the juniors to the petitioner were given such promotion and that respondents no. 8 to 10 also at the relevant point of time when they were given B.A. trained scale of pay were not part of the same cadre of teachers to which the petitioner belongs, the petitioner would not be given the benefit of promotion in B.A. trained scale of pay till he would qualify for the same on the basis of his eligibility and seniority. Such exercise however must be completed within a period of six month from the date of receipt/production of a copy of this order and the petitioner also must be given a copy the order passed on his representation. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/