IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3456 of 2007 Swarnlata Sinha, W/o Late Tribeni Prasad Singh, resident of Village + P.O. Barail, P.S. Supaul, Dist. Supaul. ----- Petitioner Versus 1. The State of Bihar. 2. District Superintendent of Education, Saharsa. 3. Deputy Director Education, Koshi Pramandal, Saharsa. 4. Collector, Saharsa. 5. Director, Primary Education, Bihar, Patna. 6. Chief Secretary, Bihar, Patna. -------- Respondents ----------- 3 09.09.2011 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application is for grant of Graduate Trained Scale of Pay and its consequential benefit. Earlier when this case was heard on 12.8.2011, this Court had found that there was no explanation whatsoever on behalf of the respondents for non-consideration of the case of the petitioner for grant of her B.A. Trained Scale of Pay. In fact, there was no counter affidavit at all filed by the respondents and in such a situation, this Court had passed the following order:- “Miss. Mazumdar, in support of the aforementioned prayer, would submit that even when the petitioner was placed at serial no.473 in the last Gradation List, which was in operation till she remained in service, she had 2 not been given promotion on the B.A. Trained Scale of Pay whereas Suryakant Jha and Kameshwar Singh placed below her were given such promotion in B.A. Trained Scale of Pay as also the higher post of Headmaster with effect from 1.8.1986 and as such, the petitioner’s continued deprivation of her promotion in higher post and pay-scale had seriously prejudiced her not only in the matter of payment of her salary but also the consequential retirement benefit. In this case, learned counsel for the State, having not answered aforesaid facts asserted in the writ application, has very conveniently raised the question of delay in filing of the writ application. According to him, the petitioner, having retired with effect from 1.2.1997, could not have raised such belated claim of her promotion after ten years. In the considered opinion of this Court, the delay in filing of the writ application in the present case may not adversely affect the petitioner, inasmuch as, there are two elements involved out of such promotion claimed by the petitioner. The first one being with regard to the retrospective promotion with financial benefits and the other being the retirement benefit to which she would become entitled if such promotion is given from the date her juniors were given such promotion. The latter part is a recurring cause of action, inasmuch as, the petitioner would stand 3 deprived of her retirement benefit which she could have earned, had her promotion been given in time. Moreover, the whole position as with regard to the grant of promotion in the B.A. Trained Scale of Pay on account of 1993 Rules made effective from 1.1.1986 had remained fluid and the same was subjudice for a long time in this Court wherein earlier the vires of the Rules was unsuccessfully challenged which was followed by a series of writ petitions assailing the application and working out of Rules. Infact all such disputes could got settled only by the judgment of the Full Bench in the case of Ram Nath Prasad Singh Vs. The State of Bihar & Ors. reported in 2009(3)PLJR 384 wherein the direction had been given to issue a fresh Gradation List as on 1.1.1986 for considering the case of promotion of all the eligible teachers in B.A. trained scale. In that view of the matter, after the judgment of the Full Bench in Ram Nath Prasad Singh (supra) even a retired employee like the petitioner would be entitled for being considered for her promotion at least from the date on which her juniors were given such promotion in B.A. trained scale. Now the counsel for the State will have a great difficulty because he has not filed the counter affidavit and does not know anything about the inter- se seniority position of the petitioner. He is also not in a position to inform this Court as to 4 whether the direction of the Full Bench in the case of Ram Nath Prasad Singh (supra) has been carried out in the district of Saharsa. In such a situation the respondents having failed to file their counter affidavit in more than last four and half years will have to now answer themselves by appearing before this Court. It is accordingly directed that the District Programme Officer, Saharsa, being the present authority replacing the District Superintendent of Education, Saharsa must appear in person with his counter affidavit explaining the fact as to whether the fresh Gradation List in terms of the judgment of the Full Bench in the case of Ram Nath Prasad Singh (supra) has been issued and whether the case of the petitioner for her promotion in B.A. trained scale has been considered. He would also explain as to why the counter affidavit in this case was not filed in this Court for a period of almost four and half years and along with counter affidavit, he will also produce receipt showing payment of cost of Rs. 5,000/- after depositing the same in the name of Patna High Court Legal Services Authority.” Today, a counter affidavit has been filed by the District Program Officer cum 5 District Education Officer, Saharsa in which it has been stated that the promotion given to the alleged two juniors to the petitioner, namely, Kameshwar Prasad Sigh and Surya Kant Jha, having been found to be illegal, has already been cancelled by the District Education Establishment Committee in December, 1996. Though no order showing cancellation of promotion of the aforesaid two persons in B.A. Trained Scale of Pay has been annexed but, then, as District Education Officer, appearing in person, has stated this fact, there would be no question of disbelieving the aforesaid stand. Once the promotion to the alleged two juniors have been cancelled, the petitioner cannot claim promotion with retrospective effect from the date such two juniors were given promotion in the B.A. Trained Scale of Pay. That, however, will not mean that the petitioner’s case for promotion in B.A. Trained Scale of Pay would not be considered till eternity. The second limb of the stand taken by the respondents in the counter affidavit that though the petitioner was M.A. and B.Ed. and yet had obtained her appointment on the 6 post of Matric Trained Scale of Pay by suppressing her qualification would also not stand as a bar for earning her promotion in the B.A. Trained Scale of Pay. The respondents did not cancel the appointment of the petitioner till she had continued in service and in fact, she was allowed to retire as also giving the post retirement benefit. Therefore, the petitioner would stand in the queue of the Matric Trained Teacher from the date of her appointment and would be entitled for the same consideration of promotion as other Matric Trained Teachers of the district Saharsa would be entitled. It is also not in doubt that on account of 1993 Rules abolishing the concept of I.A. Trained Scale merging with the Matric Trained Scale, the respondents were required to draw a new seniority list and decide the case of promotion with effect from 1.1.1986, the date from which the 1993 Rules came into force. The explanation of the District Education Officer in his counter affidavit that such gradation list, despite direction given by the Full Bench in the case of Ram Nath Prasad Singh Vs. The State of Bihar & Ors. reported in 2009(3) PLJR 384 has not been 7 framed as yet, would only reflect the deliberate violation of the direction given in the order by the Full Bench of this Court wherein only a period of six months was fixed for preparation of the gradation list on the basis of 1993 Rules. The District Education Officer as also the Collector of the district, before whom such gradation list is said to be pending for approval, are in contempt and would be well advised to purge themselves by immediately notifying the said gradation list by way of finalizing it and publishing it for its being acted upon for the purpose of consideration for promotion in the B.A. Trained Scale of Pay from the post of Headmaster. Faced with this situation, the District Education Officer would submit that he will ensure that the final gradation list would be prepared in terms of the direction of the Full Bench of this Court will be notified and published within a period of three months from today. He has further assured that the vacancy on the post of B.A. Trained Scale of Pay and/or Headmaster will be filled up strictly on the basis of the 8 aforesaid gradation list and if the petitioner till the date of her retirement would be found entitled for such promotion in the B.A. Trained Scale of Pay/Headmaster, an appropriate order would be issued for her promotion from the due date. He has further submitted that this exercise will be also completed within a period of three months from the date of publication of final gradation list. In that view of the matter, this writ application is disposed of with a direction to the District Education Officer, Saharsa to consider the case of the petitioner for grant of her promotion in B.A. Trained Scale of Pay and/or Headmaster strictly in accordance with law and in terms of 1993 Rules. It is, however, made clear that if this exercise is not completed and a final order is not passed and communicated to the petitioner in a total period of six months from today, the District Education Officer, Saharsa, appearing in person today, shall be held personally liable for violation of the order of this Court. It goes without saying that if the 9 petitioner would be entitled for any financial benefit on account of such promotion and/or revision of her pension that would also be extended to her within one month from the date of notifying of her promotion. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)