IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3287 of 2007 Surendra Prasad (since dead), son of Sri Thakur Mahto, resident of village Ashanagar, P.O. Soh Sarai, P.S. Bihar Sharif, District Nalanda, at presently posted as Assistant Teacher, Middle School, Bandoh, Bhaganbigha, Rahui (Nalanda) … Petitioner Versus 1. The State Of Bihar through the Secretary, Human Resources Development Department, Bihar, Patna 2. The Director, Primary Education, Bihar, Patna 3. The District Magistrate cum Chairman, District Education Establishment Committee, Nalanda 4. The District Superintendent of Education cum Secretary, District Education Establishment Committee, Nalanda … Respondents ---------------------------------- 2. 10.8.2011 I.A.No. 4786/2011 For the reasons mentioned in this application the prayer made therein for substitution of the sole petitioner is allowed and the heirs named in paragraph no.5 of the application are directed to be substituted after deleting the name of the original petitioner, in view of the fact that even after the death of the original petitioner the monetary claim on the basis of promotion of the original petitioner in B.A. trained scale could still be pressed by his heirs and legal representatives. C.W.J.C. No. 3287 of 2007 Coming to the merits of this case this Court would find that the original petitioner had filed this writ application for grant of his B.A. trained scale with effect from 22.8.1979 and also grant him promotion on the post of Headmaster from due date. Learned counsel for the petitioner would submit that when the juniors to the original petitioner were given such B.A. trained scale in the year 1981, the original petitioner would 2 definitely be entitled for grant of such pay scale from the date of his passing of B.A. examination i.e. 22.8.1979. He has further relied on an order of this Court dated 21.6.2006 in C.W.J.C.No. 1960/2005 (Prem Prakash Arya vs. the State of Bihar & ors.). Learned counsel for the State, on the other hand, has pointed out that the petitioner had filed a writ application which was dismissed as withdrawn on the prayer of his counsel without giving any liberty to file a fresh writ application and therefore, this writ application is not maintainable. He has further submitted that the original petitioner had a misconception about grant of B.A. trained scale of pay. It is not automatic from the date on which a teacher would acquire a qualification of graduation. Thus, assailing the prayer of the petitioner for grant of his B.A. trained scale of pay with effect from 22.8.1979 it has also been contended by the learned counsel for the State that the concept of seniority in the mind of the original petitioner has also carried a misconceived notion about the concept of seniority, inasmuch as when the petitioner himself had become trained on 14.10.1977 was given Matric trained scale of pay with effect from the said date he cannot claim promotion in B.A. trained scale of pay within a space of two years with effect from 22.8.1979. In the considered opinion of this Court there being no liberty left with the original petitioner for pursuing the same cause of action in view of the earlier order of this Court dated 1.8.2006 in C.W.J.C.No. 10848/2005, this writ application is fit to be dismissed only on the aforesaid ground, inasmuch as the earlier 3 order of this Court had read as follows: “ In the High Court of Judicature at Patna. C.W.J.C.No. 10848 of 2005 Surendra Prasad … Vs. State and ors. 2. 1.8.2006 After some argument, counsel for the petitioner seeks permission to withdraw this application enabling the petitioner to represent his case ventilating his grievances before the authorities concerned. This application is, accordingly, dismissed as withdrawn.” There being no fresh cause of action in the writ application, inasmuch as no order was passed on any representation filed by the petitioner, his writ application for the following relief: “I. For issuance of appropriate direction order of writ in the nature of mandamus commanding the respondent no. 3 and 4 to dispose of the representation dated 21.11.2006 and 23.12.2006 filed by the petitioner in pursuance of the order dated 1.8.2006 passed by this Hon‟ble Court in C.W.J.C.No. 10848/2005. II. For issuance of appropriate direction, order or writ in the nature of mandamus commanding the respondents to grant the petitioner B.A. trained scale from the date of passing of B.A. examination, i.e. from 22.8.1979. III. For issuance of appropriate direction, order or writ in the nature of mandamus commanding the respondents to promote the petitioner on the post of the Headmaster.” 4 is definitely not maintainable. However, taking into account that the respondents in their counter affidavit have brought an order dated 4.9.2008 on record, whereby and whereunder the earlier representation filed by the petitioner was rejected, this Court would entertain the writ application only against the said order dated 4.9.2008, inasmuch as now directing the substituted petitioners to file a fresh writ application for challenging this order would be burdening them with obligations which was supposed to be carried out by the original petitioner and/or the learned counsel who had advised him to file such a writ application even without there being a fresh cause of action. In that view of the matter, this Court has gone into the correctness of the order dated 4.9.2008 though the same has not been specifically challenged despite service of copy of the counter affidavit on the counsel for the petitioner on 21.10.2008. From reading of the said order, contained in Annexure „A‟ two things are very clear, namely, that the original petitioner was appointed in a private school by the Managing Committee on 13.12.1970 and such school was taken over on 15.11.1976. The petitioner was an untrained Matric at the time of take over of the school and his services were actually taken over as an untrained Matric. In that view of the matter, when the petitioner had himself passed the Teachers Training Examination on 14.10.1977 he could not have got anything more than Matric trained scale of pay in the existing structure of the post of teachers wherein Matric trained 5 teacher post was the basic post and the post of I.A. trained and B.A. trained being further promotional post respectively. Thus, it is clear that the issue of the petitioner‟s seniority will have to be also decided among teachers who had become Matric trained either by way of appointment or being adjusted on the Matric trained post teacher after 14.10.1977. In that view of the matter, this Court would not be in a position to accept the submission of the learned counsel for the petitioner that the persons named in paragraphs no. 11 and 12 of the writ application were junior to the original petitioner merely because their date of appointment as a teacher was later in comparison to the original petitioner. It has to be kept in mind that the seniority of such persons will have to be gone into on the basis of their becoming Matric trained teacher and consequently gaining the post of I.A. trained teacher before being reckoned eligible for being considered and given the B.A. trained scale of pay/ post Headmaster. There is no detail as with regard to the aforementioned persons as to when they were given the Matric trained scale of pay and I.A. trained scale of pay. One thing, however, is clear from reading of the order dated 14.9.2006, wherein one Prem Prakash Arya was allowed promotion in B.A. trained scale of pay with effect from 1.4.1985, that the persons named in paragraphs 11 and 12 did not fall in the category of teachers in which the petitioner was placed. As a matter of fact it has been clarified that Kapildeo Prasad, Ramhari Sao and others were the teachers of a Primary School controlled by the Notified 6 Area Committee whose services had already been taken over under section 3(1)of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 with effect from 1.1.1971. Thus, those teachers could not be junior to the petitioner whose services was taken over as a Matric trained teacher with effect from 15.11.1976, the date on which his school was taken over under section 3(3) of 1976 Act. Therefore, the issue of seniority as raised by the original petitioner is based on half baked materials and cannot be relied especially when the District Superintendent of Education in the order dated 4.9.2008 had specifically asked the petitioner to give details of those persons against whom he had claimed his seniority. The aspect which would again disentitle the petitioner for claiming promotion on the post of B.A. trained with effect from 22.8.1979 will be if the petitioner‟s original promotion/ absorption as a Matric trained teacher dated 14.10.1977 cannot be shifted in view of the fact that he acquired qualification of teacher, he cannot claim the B.A. trained scale of pay in a space of two years because he had not completed the Kalawadhi as prescribed in the existing Rules. More over, the seniority of the petitioner after his completing graduation course on 22.8.1979. Thus the seniority of the petitioner will have to be reckoned only from the year 1979 amongst all the eligible persons but if the petitioner had not been given the next higher post of I.A. trained scale of pay as on 22.8.1979, his seniority again will not be reckoned for the purposes of B.A. trained scale of pay, inasmuch as in the existing Rules there was a concept of 7 Matric trained post and its promotional post being I.A. trained post for which again there was a prescribed period of Kalawadhi of minimum five years. In that view of the matter, the petitioner could not have been granted I.A. trained scale of pay prior to 14.10.1984 and retrospective order passed by the D.S.E. on 20.10.1986 giving him the benefit of I.A. trained scale of pay on 14.10.1977, the promotional pay trained scale, would definitely require reconsideration because a person cannot be granted both Matric trained scale of pay and I.A. trained scale of pay with effect from the same date. In any event even if the date of promotion of the petitioner in I.A. trained scale of pay and Matric trained scale of pay becomes the same he cannot claim his automatic promotion from the date he had passed his B.A. examination, inasmuch as again on passing of B.A. examination his seniority will be reckoned amongst the qualified persons who had already completed training and graduation prior to 22.8.1979. It has to be further kept in mind that from 1.1.1986 the post of I.A. trained teacher was abolished under 1993 Rules and both the post of Matric trained and I.A. trained was merged. In that view of the matter, after 1993 Rules came into force giving its retrospective operation w.e.f. 1.1.1986 the original petitioner could have claimed his promotion in B.A. trained scale of pay only if he could have shown that any gradation list prepared after 1.1.1986 had been acted upon in which any junior to him was given such promotion. There is no detail of any such person who is said to have given promotion after 1.1.1986, inasmuch as all the persons 8 cited by the petitioner in paragraphs 11 and 12 of the writ application had not only retired from service but were also given B.A. trained scale of pay prior to 1.1.1986. In that view of the matter, this Court must hold that the petitioner‟s promotion in B.A. trained scale of pay is not possible from any date prior to 1.1.1986. The petitioner, therefore, at best can be entitled for promotion on the post of B.A. trained on any date after 1.1.1986 provided that in the newly drawn gradation list in terms of the judgment of the Full Bench of this Court in the case of Ram Nath Prasad Singh vs. State of Bihar & ors., reported in 2009(3) PLJR 384, the petitioner is shown to be senior to any person who have been granted such promotion in the B.A. trained scale of pay on or after 1.1.1986. In that view of the matter, as the District Superintendent of Education (now the District Programme Officer), Nalanda has to get the decision of the District Education Establishment Committee on the newly drawn gradation list in terms of the direction given by the Full Bench of this Court in the case of Ram Nath Prasad Singh (supra), this Court would direct the District programme Officer to place the case of the substituted petitioners for consideration of promotion of the original petitioner in B.A. trained scale of pay only with effect from any date after 1.1.1986 on which any of his junior had been given such promotion till the date the petitioner had remained in service i.e. 20.4.2011. If in such exercise it is found that the petitioner was entitled for promotion in B.A. trained scale of pay, the respondents 9 after obtaining the orders of the District Education Establishment Committee would notify promotion of the original petitioner so that the substituted petitioners could at least get the financial benefit in the matter of arrears of pay as also revision of retirement benefits. In order to expedite the matter this Court would give liberty to the substituted petitioner no.1, the widow of the original petitioner, to file a representation before the District Programme Officer, Nalanda enclosing a copy of this order, whereafter the said representation will be placed with full details before the District Education Establishment Committee and the resultant decision with regard to promotion of the petitioner in B.A. trained scale of pay would be taken within a period of six months from the date of filing of the representation by the substituted petitioner no.1. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/