IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4641 of 2000 CHANDRA BHUSHAN SHARMA, son of Jamuna Prasad Sharma, resident of village-Salimpur, Police Station- Bakhityarpur, District Patna. Versus 1.THE STATE OF BIHAR 2.Director, Primary Education, Government of Bihar, Patna. 3.District Magistrate, Patna. 4.Deputy Superintendent of Education, Patna. 5.Gopal Prasad Singh, Middle School Nanauri, Dhanalura, Police Station-Dhanarua, District Patna. 6.Udit Narayan Singh, Sanskrit Middle School, Masaurhi, Police Station Masaurhi, District Patna. 7.Krishna Murari Prasad, Middle School Bahbahopur, Police station Fatuah, District Patna. 8.Rajni Bhushan Singh, Middle School Ranauti, Police Station Bakhtiyarpur and District Patna. 9.District Superintendent of Education, Patna. ----------- 9 07.07.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “(i)To grant to the petitioner promotion to grade IV with retrospective effect from April, 1985; (ii)To grant to the petitioner promotion to grade VII with retrospective effect and to post him as a Headmaster with effect from May, 1993; (iii)To quash the office order dated 28.1.99 contained in memo no.193; Patna dated 1.2.99 under the signature of the District Superintendent of Education, Patna whereby the respondent Nos. 5, 6, 7, 8 and 9 were promoted to the post of Headmaster; (iv)To declare that the respondent Nos. 5, 6, 7, 8 and 9 are junior to the petitioner as Headmaster (in grade VII); (v)To direct the respondent authorities to prepare a seniority list of the teachers of the primary schools of the Patna district.” With regard to the aforementioned prayer while counsel for the petitioner would contend that the petitioner stands 2 discriminated in the matter of grant of B.A. trained pay scale as also the post of Headmaster, the respondents at long last have came out with their defence that the whole matter was subjudice in L.P.A. No.985 of 1996, 1137 of 1996 and 1138 of 1996, wherein the provisions of 1993 Rules had been challenged and those L.P.As. were ultimately disposed of on 21.4.2009 with certain observations and directions. It has also been brought to the notice of this Court that in terms of the directions given by this Court in the aforementioned L.P.As. disposed of by a common order dated 21.4.2009, gradation list of B.A. trained teachers (Arts) has been prepared and in the said gradation list the name of the petitioner finds place at Serial No.340. The District Superintendent of Education, Patna who has personally appeared before this Court has also assured this Court that that as the petitioner is in the zone of consideration the final decision and order regarding grant of his promotion in B.A. trained scale of pay and other similarly situated persons would be taken and issued within a period of a fortnight. He has, however, made it clear that such pay scale would be given to the petitioner only with prospective effect and the petitioner would be entitled to draw salary in the said scale of pay from the date of joining after such notification of promotion is issued. The claim of the petitioner for his promotion on the post of Headmaster has however been not admitted and an explanation in this regard has been given that the same is not admissible to him in terms of the provisions of promotion Rules 3 1993 under which only such candidate who have passed Post Graduation examination and has worked for five years as B.A./B.Sc. trained teacher alone are eligible for consideration for the post of Headmaster. It has been also asserted that the petitioner does not fulfill the prescribed qualification and therefore he cannot be promoted on the post of Headmaster. Since this part of the stand of the respondent is not sought to be controverted by Mr. Manish Kumar, learned counsel for the petitioner, this Court would hold that the petitioner will be only entitled for promotion in the B.A. Trained scale of pay for which notification must be issued as has been undertaken by the District Superintendent of Education himself within a period of two weeks from the date of receipt/production of a copy of this order. At this stage Mr. Manish Kumar, leaned counsel for the petitioner would press his claim for promotion from the date his juniors, namely, respondent nos. 5 to 8 had been given such B.Sc. trained scale of pay and would submit that the issue stands covered by the judgment of the Division Bench of this Court in the case of „Naresh Jha & Ors. Vs. The State of Bihar & Ors.’ reported in 1994 (2) P.L.J.R. 348. This Court first of all would find that the Division Bench in the case of Naresh Jha (Supra) even after noticing 1993 Rules, namely, Bihar Taken Over Elementary School Teachers Promotion Rules, 1993, had not set aside the rule requiring separate consideration of promotion in B.Sc. trained scale of pay and B.A. trained scale of pay. In fact, this Court in paragraph 8 of 4 the said judgment had held that it is not necessary to go into the controversy as to whether the classification between Arts and Science teachers for the purpose of promotion to Grade 4 is rational or not. Once this conclusion was arrived at by the Division Bench the Rules which prescribes for separation consideration for promotion to B.Sc. trained scale of pay as also B.A. trained scale of pay, there would be no difficulty in holding that the petitioner cannot challenge the promotion given to respondent no. 5 to 8 who belong to Science faculty and have been given promotion in B.Sc. trained teacher scale of pay. Admittedly, in the schools there are different sub- cadres of teachers in which Science and Arts candidates are not to be mixed up. The promotion rule itself provides for separate consideration of the Science and Arts teachers and as such there will be no scope for entertaining the grievance of the petitioner with regard to his being left out as he belongs to the Arts faculty and was eligible for consideration of promotion in only B.A. trained scale of pay not B.Sc. trained scale of pay. Since the petitioner has not cited any example of any junior to him who has been given promotion in B.A. trained scale of pay and as such his plea discrimination must be and is hereby rejected. With the aforementioned observations/directions this application is accordingly disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)