IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5041 of 2002 MATHURA PRASAD PANJIAR, S/O LATE BISHWANATH PANJIAR, R/O VILLAGE AND P.O.-BASTI JALAL, P.S.-DIGHWARA, DISTRICT-SARAN (CHAPRA). ………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH SECRETARY-CUM- COMMISSIONER, WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. DIRECTOR, WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. PROMOTION COMMITTEE, WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. ASSISTANT DIRECTOR, WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5. DEPUTY DIRECTOR, WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. …………RESPONDENTS. ----------- 4 03.03.2010 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for a direction to the respondents to grant him junior selection grade scale with effect from 15.9.1988 and senior selection grade scale with effect from April, 1992, the dates from which his juniors were granted the same. A further prayer has been made for a direction to the respondents to pay him monetary benefits of such grant of scale. Along with the writ application, petitioner has produced provisional gradation list of graduate trained teachers as Annexure- 2. The list shows that the petitioner is at 2 serial no. 171. A subsequent order of promotion of incumbents in the junior selection grade scale has been annexed as Annexure-4 and learned counsel for the petitioner points out that the persons who were below in the provisional gradation list at serial nos. 173, 174, 175 and 176, were granted junior selection grade scale with effect from 15.9.1988 and the last incumbent with effect from 1.12.1988. He submits that as the petitioner was senior to the said persons, he was also entitled for grant of junior selection grade with effect from 15.9.1988 at least. However, he was not granted the same. Subsequently, another list of promotion to junior selection grade scale was also issued vide Annexure-7, but the petitioner did not find his name there also. Accordingly, he filed representations before the Director, Welfare, Government of Bihar vide Annexure-8, 9 and 10, which remained unconsidered. Hence, he filed this writ application. Subsequently petitioner has also filed a supplementary affidavit, bringing on record some more facts and documents, from which it appears that, on account of absence from duty in 3 the school on 26.9.1988, he was put under suspension by order dated 13.12.1988 vide Annexure-11. A proceeding was held and finally by order dated 14.12.1990, vide Annexure-12, he was awarded punishment of censure and it was also held that he will not be entitled for any further payment of the month of September, 1988 except the subsistence allowance. However, it was observed that the period of suspension shall be counted as period spent on duty. Petitioner filed his appeal which was disposed of by the Secretary, Welfare, by order dated 15.4.1993, as contained in Annexure-14, by which the order of punishment of censure was affirmed with the modification that the petitioner will be entitled to full salary of the period of the month of September, 1988. Learned counsel for the petitioner submits that the date of incident was 26.9.1988 for which he was suspended and finally awarded punishment of censure. As his juniors have been allowed junior selection grade scale with effect from 15.9.1988, petitioner definitely becomes eligible for the same at list from that date, which was admittedly prior to the said date of 4 incident. Therefore, the respondents could not deny him junior selection grade scale on account of an event of a date subsequent to the date of his eligibility and on account of proceeding held for the same. A counter affidavit has been filed by the respondents. In the counter affidavit, the same facts, about absence of the petitioner from school on 26.9.1988 and holding of the proceeding and punishment to him, have been reiterated. However, it has also been stated that there was some allegation of defalcation against the petitioner in 1996 itself, as the amount received by him for maintenance etc. of the hostel was not found properly spent. The vouchers which the petitioner submitted were also found forged. Subsequently it was found that the petitioner had deposited the difference of amount through Bank Draft with the respondents. In support of this submission, a letter bearing no. 6333 dated 23.11.1999 is mentioned as Annexure-D. However, when this Court turned to Annexure-D, it appeared that the said letter no. 6333 dated 23.11.1999 is an order of the office 5 of the Director, Welfare, granting promotion to the teachers to junior selection grade scale with effect from the dates mentioned against each names as contained in the list. This list shows that 138 teachers were allowed junior selection grade scale from different dates and date much subsequent to 15.9.1988. The name of the petitioner does not find place in this list also. This list does not support the pleadings made by the respondents in paragraph 6 of the counter affidavit in respect of the alleged defalcation by the petitioner. There is also nothing on record to substantiate the stand of the respondents or that any action was taken against the petitioner in respect of the alleged defalcation by him. No order is also annexed with the counter affidavit to show that any decision was taken by the respondents to deny him the benefit of promotion to junior selection grade scale and subsequent promotion to senior selection grade scale. Therefore, this stand of the respondents in respect of the alleged defalcation by the petitioner is rejected as unsubstantiated from the records. So far as incident of absence of the 6 petitioner from duty on 26.9.1988 and subsequent proceeding and punishment of censure to him is concerned, the same is admitted, but apparently, the same is subsequent to the date of his eligibility for grant of junior selection grade scale which has to be 15.9.1988 at least. Therefore, there being no material on record to show that there was any proceeding or complaint against the petitioner pending with the respondents prior to 15.9.1988, the date from which his juniors were granted the junior selection grade scale, this Court is of the opinion that the respondents could not deny the consideration of case of the petitioner for grant of junior selection grade scale, at least from 15.9.1988. In the circumstances, this writ application is allowed. The respondents are directed to consider the case of the petitioner for grant of junior selection grade scale with effect from 15.9.1988 and allow him all consequential benefits of the same positively within three months from the date of receipt/production of a copy of this order. So far as grant of senior selection 7 grade scale with effect from April, 1992 is concerned, the respondents shall consider the same also and if no orders withholding, denying or disentitling the same to the petitioner have been passed, they shall pass orders in respect of the same also in accordance with law, within the same time. Arvind/ (J. N. Singh, J.)