IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3947 of 2002 Chandra Nath Jha, Son of late Raj Rakkhan Jha, permanent resident of Village Murli Chandwa, P.S. Udakishunganj, District Madhepura, at present residing at Mohalla Hatiagachi, Ward No. 25, P.S. and District Saharsa. ------- Petitioner Versus 1. The State Of Bihar through the Secretary, Secondary, Primary and Adult Education Department, Government of Bihar, Patna. 2. The Director, Primary Education, Bihar, Patna. 3. The Commissioner, Kosi Division, Saharsa. 4. The District Magistrate-cum-Chairman, District Education Establishment Committee, Madhepura. 5. The Regional Deputy Director of Education, Kosi Division, Saharsa. 6. The District Superintenent of Education, Madhepura. 7. The Area Education Officer, Udakishunganj, District Madhepura. ------------- Respondents ----------- 7 07.07.2010 Heard Mr. Gyanand Roy, learned counsel for the petitioner and counsel for the State. The prayer of the writ petitioner in this application reads as below:- “2(i) For quashing the relevant portion of the order of the District Superintendent of Education, Madhepura contained in Memo No. 685-6 dated 11th August, 2000 (Annexure-1). (ii) For commanding the respondents to consider the case of the petitioner for promotion to the post of Headmaster with effect from the due date and accordingly grant him promotion to the post of Headmaster and thereafter grant all consequential benefits 2 including payment of difference of salary and revision of post- retiral benefits. (iii) For commanding the respondents to make payment of the salary to the petitioner of the period 1.6.1993 to 28.7.1994 and from 16.12.1994 to 18.12.1994 in view of the orders of the District Magistrate, Madhepura and the Commissioner, Kosi Division, Saharsa.” Mr. Roy, while pressing for the aforementioned reliefs, would basically concentrate on the promotion of the petitioner on the post of Headmaster as also payment of salary for the period June, 1993 to 28.7.1994. Mr. Roy would submit that since the petitioner’s junior, namely, Deo Narayan Yadav was already given such promotion on the post of Headmaster on 29th January, 1994, the petitioner will also be entitled for getting such promotion with effect from the same date if not earlier. This aspect of the matter as asserted in paragraph nos. 59, 60, 61 & 62 of this writ application, which reads as below:- “59. That it will not be out of place to mention that one Sri Dev Narayan Yadav, Assistant teacher, Middle 3 School, Rani Patti West, Anchal – Kumarkhand, district Madhepura was granted B.A. trained scale and was also promoted to the post of Headmaster vide Memo No. 92-10 dated 29th January, 1994. 60. That according to the seniority list, published on the basis of the direction issued by this Hon’ble Court in C.W.J.C. No. 3986/1993, the name of the petitioner in the seniority list is at serial No. 10 in the list of matric trained teachers, who are having B.A. qualification, whereas the name Deo Narayan Yadav in the said seniority list has been placed at serial No. 96. 61. That the petitioner was granted Matric trained scale with effect from 18.5.1960, whereas Deo Narayan Yadav was granted Matric trained scale with effect from 1.8.1970. 62. That the said Deo Narayan Yadav was granted B.A. trained scale with effect from the date of passing of the order vide Memo No. 92-10 dated 29th January, 1994, whereas the petitioner was granted B.A. trained scale with effect from 1.1.1989 vide Memo No. 208-14 dated 3rd September, 1995.” has been dealt with by the respondents in paragraph no.10 of the counter affidavit, which reads as below:- “10. That it is stated that as alleged by 4 the petitioner that one Deo Narayan Yadav who was junior to the petitioner have been promoted to the post of Headmaster. In this regard it is submitted that it is true that petitioner was appointed on the post of matric trained scale in the year 1960 and Deo Narayan Yadav was appointed on matric trained scale in the year 1970 but the Deo Narayan Yadav passed B.A. in the year 1978 much prior to 01.01.1986 and having requisite qualification he moved before this Hon’ble Court in CWJC No. 12348/92 and the then District Superintendent of Education promoted him in the light of order of this Hon’ble Court dated 08.12.1992 as per recommendation of the District Superintendent of Education Deo Narayan Yadav was promoted vide Memo No. 9210 dated 29.01.94 and Deo Narayan Yadav also retired from service in the year 2005.” Thus, it becomes clear that whatever seniority the petitioner had in the Matric Trained Scale of Pay i.e. initial grade of post, the same was lost by him when Deo Narayan Yadav, being junior to him, had passed the B.A. Examination in the year 1978 and based on that qualification was also given promotion as per the prevalent rules 5 for filling up the vacancy prior to 1.1.1986. Deo Narayan Yadav, in fact, was given promotion in terms of the order of this Court dated 8.12.1992 and consequently in view of the admitted fact by the petitioner in paragraph no. 13 of the writ application that he had passed the examination equivalent to the B.A. i.e. Sahitya Alankar Examination only in December, 1987, he cannot claim of benefit of grant of B.A. Trained Scale of Pay prior to Deo Narayan Yadav. Once this aspect becomes clear that no junior to the petitioner was given such promotion, the date given to the petitioner for his B.A. Trained Scale of Pay i.e. 1.1.1989 cannot be faulted with either on fact or in law. The reliance placed by the learned counsel for the petitioner on a judgment of the Division Bench of this Court in the case of Bali Ram Choudhary & Ors. Vs. The State of Bihar & Ors. in CWJC No. 4352 of 1993 and its analogous cases disposed of by a common judgment dated 16th March, 1994 in no way would improve the case of the petitioner even if he was a petitioner therein. The Division 6 Bench in this case, while considering the offer given by the counsel for the State for summarizing the manner of consideration for grant of promotion in B.A. Trained Scale of Pay, in fact, only recorded that such vacancy taking place between 1.4.1981 to 31.12.1985 will be filled up in accordance with Government Notification No. 2440 dated 18.12.1984. The 1984 notification does not contemplate either grant of B.A. Trained Scale of Pay to a person who has not passed the B.A. Examination or its equivalent examination. In that view of the matter, this Court would find no support for the petitioner at least from the judgment of Bali Ram Choudhary (supra), inasmuch as, the petitioner had admittedly passed such an examination after 1.1.1986, a cut off date under the 1993 rules for giving promotion only in terms of the Rules. That being so, the first part of the claim of the petitioner as with regard to the retrospective promotion from the date of Deo Narayan Yadav must fail and is accordingly 7 rejected. As with regard to the claim of payment of salary for the period June, 1993 to 28.7.1994, the consistent stand of the respondents is that the petitioner was absent from the school and therefore, once he was found to have not worked in the relevant period, he would not be entitled for payment of salary. Counsel for the petitioner would, however, submit that since the petitioner was having some sort of animosity or grudge against the Headmaster, it was he who had marked the petitioner absent despite his remaining present and working in the school. Unfortunately, when the petitioner was asked to lead evidence about his working and for which there was also an order passed in the writ application followed by contempt application, the petitioner could not demonstrate any such proof of his working for the period June, 1993 to 28.7.1994. Mr. Pandey, however, would submit that the petitioner still can prove this fact as with regard to his working in the said period. This Court, therefore, considering 8 the aforementioned limited prayer of the petitioner as with regard to the payment of his salary for the period June, 1993 to 28.7.1994, would remit the matter back to the District Superintendent of Education who now would pass a fresh order if the petitioner produces cogent and clinching evidence of his working in the school in the relevant period. In the event, the petitioner would file a representation for this purpose and would enclose his evidence of working, the District Superintendent of Education will pass his order within three months from the date of receipt/production of a copy of this order. It is, however, made clear that on such claim of salary of the petitioner, the District Superintendent of Education will not be in any way prejudiced by his earlier order dated 11th August, 2000 (Annexure-1) or his subsequent order dated 17th August, 2001 (Annexure-A to the Counter Affidavit). With the aforementioned observations and directions, this application is disposed of. Rsh (Mihir Kumar Jha, J.)