IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9106 of 2001 SABIHA KHATOON Versus THE STATE OF BIHAR & ORS For the petitioner : Mr.Prabhakar Jha,Adv. For the State : Mr.Prabhat Kumar,J.C.to G.A.3 with CWJC No.8424 of 2001 RAN VIJAY SINGH & ANR Versus THE STATE OF BIHAR & ORS For the Petitioner : Mr.Bijay Kr.Pandey,Adv. For the State : Mr.P.K.Singh,J.C. to G.A.1 ---------- 12. 30/06/2009 Heard learned counsel for the petitioners and learned counsel for the State. Due to similarity of facts and issues, these two writ applications are being taken up together and disposed of by this common order. Petitioners of the second case, who were teachers in different schools of the District, had earlier come to this court raising a grievance that in spite of they being qualified for grant of B.A. Trained scale and consequent promotions to the post of Headmaster, their cases have been ignored and teachers junior to them appearing in the gradation list were granted that scale and were promoted to the post of Headmaster. In the said writ application, this Court did not examine the issue on merits and directed the petitioners to exhaust departmental - 2 - remedy by filing representations before the District Education Establishment Committee. Accordingly, petitioners filed their representations before the District Education Establishment Committee concerned. Their representations were considered and finding them to be eligible for grant of B.A. Trained scale and for promotion to the post of Headmaster, by dint of the fact that their juniors had been promoted, petitioners of both the cases were granted the same by resolution dated 1.10.1997. From the said resolution of the District Education Establishment Committee, which is annexed as Annexure-6 in the first case and Annexure-9 in the second case, it appears that the cases of other candidates, besides these petitioners, were also considered by the District Education Establishment Committee. Petitioners thereafter continued as such. However, it appears that later on, some enquiry was made and on the orders of the then Director, Primary Education, matter was again placed before the District Education Establishment Committee which by its resolution dated 9.6.2001 withdrew the earlier resolution passed by the Establishment Committee - 3 - dated 1.10.1997 holding the promotions to the petitioners to be bad and directed for recovery of the amount paid to them during this period on account of such promotion. In view of this resolution of the Establishment Committee, impugned orders, as contained in Annexure-1 and 1/A in the second case and Annexure-1 in the first case, were issued from the office of the District Superintendent of Education canceling the promotions of the petitioners and ordering for recovery of the amount paid to them during the period. When the second case was taken up on 9.7.2001, on the request of learned counsel for the State, four weeks time was allowed to file counter affidavit in the case. However, this Court directed that the impugned order, as contained in Annexure-1 and 1/A, shall not be given effect to in the meanwhile. In the first case also by order dated 4.12.2001 the operation of the impugned order, Annexure-1, was stayed. In view of the said interim orders of this Court, it is claimed that petitioners have continued in the B.A.Trained Scale and on the post of Headmaster and have since superannuated. - 4 - Now, the question remains whether petitioners are entitled to receive their post retiral benefits treating them as having continued in B.A.Trained scale and having retired from the post of Headmaster, or not. From the earlier order of this court as well as from the pleadings in these cases, it is apparent that the petitioners’ claim is based on the ground that juniors to the petitioners, namely, Haridwar Pandey and Ram Naresh Pandey have been granted B.A.Trained scale and also promotion to the post of Headmaster. From the gradation list, annexed as Annexure-2 to the second case, it appears that the name of petitioner no.1 Ran Vijay Singh appeared at serial no.29 whereas name of Haridwar Pandey appeared at serial no.33 and the name of petitioner no.2 Sri Niwas Tiwary appeared at serial no.37 whereas name of Ram Naresh Pandey appeared at serial no.38. It is pleaded that this gradation list was finally approved by the respondent Director, Primary Education to which there is no denial in the counter affidavit. So far as petitioner of the first case is concerned, she has claimed that she was senior to the said - 5 - two persons and in fact senior to the petitioners of the second case also. So far as ground for canceling the promotion of the petitioners mentioned in Annexure-1 of both the cases and Annexure-1/A of the second case are concerned, the same has not been challenged specifically in the pleadings nor has been challenged by learned counsels for the petitioners in both the cases during hearing of the cases. In the circumstances, it has only to be considered as to in case juniors to the petitioners have been allowed to continue in the scale of B.A. Trained and have been allowed to superannuate from the post of Headmaster and consequent thereto have been allowed to draw death-cum-post retiral benefits, whether petitioners should also receive the same in the like manner. Since the entire claim of the petitioners revolves around the claim of parity with their juniors, namely, Haridwar Pandey and Ram Naresh Pandey, this Court feels it proper that in the matters of payment of death-cum-retiral benefits also petitioners should be given parity with their juniors specially when on the basis of - 6 - interim orders of this Court petitioners are said to have continued in B.A.Trained scale and on the post of Headmaster and superannuated as such. In the circumstances, this Court directs respondent no.2 to make enquiry and find out with regard to the treatment given to the said Haridwar Pandey and Ram Naresh Pandey in the matter of grant of death-cum-retiral benefits to them and respective position of the five incumbents in the gradation list. In case, respondent no.2 finds that the said two persons were indeed junior to the petitioners and were given death-cum-retiral benefits treating them as having continued in B.A.Trained Scale and having superannuated on the post of Headmaster and they or their heirs are still being granted benefits as such, he shall pass orders for grant of similar benefits to the petitioners also. The matter with regard to grant of death-cum-retiral benefits to the petitioners shall be enquired into in the manner indicated above, if necessary, after hearing the petitioners and final decision in the matter shall be taken with consequential orders of release of their dues within four months from the date of receipt/production of a - 7 - copy of this order. However, in case, respondent no.2 does not find petitioners entitled for the same inspite of they being senior to the said two persons, he shall pass speaking order assigning specific reasons for the same and shall give a copy of the same to the petitioners with copies of all relevant documents for coming to that conclusion. So far as order of recovery passed vide Annexure-1 is concerned, petitioners were granted promotion by the District Education Establishment Committee vide its resolution dated 1.10.1997, which was a competent body to grant such promotion and by dint of that promotion petitioners drew their salary in B.A.Trained scale and on the post of Headmaster. Therefore, this Court is of the view that no recovery should be made from the petitioners of the amount received by them in terms of resolution dated 1.10.1997. Thus, the order with regard to recovery passed by Annexure-1 in both the cases and Annexure-1/A in the second case is hereby quashed. Since the petitioners are said to have continued in B.A.Trained Scale and on the post of Headmaster on the basis of interim orders passed - 8 - by this Court and they have superannuated, therefore, no specific order for quashing of cancellation of their promotion is required to be passed. Both the writ applications are disposed of with the above observations and directions. Pradeep/ (J. N. Singh, J.)