IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.9001 OF 2004 SITARAM CHOUDHARY, SON OF LATE SUKESHWAR CHOUDHARY, RESIDENT OF MOHALLA VIJAY NAGAR, POLICE STATION PATRAKAR NAGAR, POST OFFICE LOHIANAGAR, DISTRICT PATNA-800020 ………………PETITIONER VERSUS 1. THE BIHAR INTERMEDIATE EDUCATION COUNCIL, REPRESENTED THROUGH ITS CHAIRMAN, BIHAR INTERMEDIATE EDUCATION COUNCIL, BUDHA MARG, PATNA-800001 2. THE CHAIRMAN, THE BIHAR INTERMEDIATE EDUCATION COUNCIL, BUDHA MARG, PATNA, PIN 800001 3. THE SECRETARY, THE BIHAR INTERMEDIATE EDUCATION COUNCIL, BUDHA MARG, PATNA, PIN 800001 4. THE LALIT NARAYAN MITHILA UNIVERSITY REPRESENTED THROUGH ITS VICE CHANCELLOR, DARBHANGA 5. THE PRINCIPAL, MAHAKAVI KALIDAS SMARAK MAHAVIDYALAYA, TRIMUHAN, CHANDAUNA, DARBHANGA 6. THE BIHAR SCHOOL EXAMINATION BOARD THROUGH IT CHAIRMAN, SINHA LIBRARY ROAD, PATNA 7. THE CHAIRMAN, THE BIHAR SCHOOL EXAMINATION BOARD, SINHA LIBRARY ROAD, PATNA 8. THE SECRETARY, THE BIHAR SCHOOL EXAMINATION BOARD, SINHA LIBRARY ROAD, PATNA ……………………………………………………………………………RESPONDENTS ********* FOR THE PETITIONER :- MR. SUDHIR SINGH, ADVOCATE MR. RABINDRA KR. TIWARY, ADVOCATE MR. RAGHWANAND, ADVOCATE MR. RANJEET KUMAR, ADVOCATE FOR UNIVERSITY :- MR. SANTOSH KUMAR JHA, ADVOCATE FOR THE BOARD :- MR. PIYUSH LAL, ADVOCATE *************** 9 10/02/2011 The petitioner was deputed from the Lalit Narayan Mithila University to work as an Assistant in the Bihar Intermediate Education Council, now known as the Bihar School Examination (Senior Secondary) Board (herein after referred to as „the Board‟). The initial deputation of the petitioner was made on the basis of an advertisement by the Board contained in Annexure-29. The advertisement invited persons for appointment as an Assistant in the Intermediate Council in the pay scale of 2 284-372 and 348-570 along with usual allowances. The advertisement specified that those persons who were already employed may also be taken on deputation and would be allowed to get deputation allowance as per the rules. The petitioner on the basis of the advertisement was appointed on deputation and was working on the pay scale of 284-372 as he had three years experience on the post to which he was initially appointed. For a short period i.e. between the periods 01.06.1985 to 19.01.1987, the Intermediate Council was dissolved. After the revival of the Intermediate Council, it took a decision to absorb the petitioner in service vide Annexure-13 dated 11.02.1987. I may refer to the contents of Annexure-13 to explain the terms under which the petitioner was absorbed back into the services of the Intermediate Council. The Board has specifically used the term that the petitioner would be absorb in service and would be allowed to join in terms of the letter, “iqu% ;ksxnku dh frfFk ls lgk;d ds :i esa fd;k tkrk gSA”, meaning thereby that the petitioner was allowed to rejoin on the post of an Assistant. It has further been specified that the period under which the petitioner has stood relieved from the Intermediate Council would be counted as period in service and that all emoluments were to be 3 paid for the two years, subject to the approval of the original employer. By Annexure-17 issued on 26.07.2004, the petitioner has been reverted back to the post of a Routine Clerk on the ground that on the date when he was appointed, which has been treated to be 19.01.1987, he did not possess the requisite qualification of having a graduate degree, according to the 1985 rules. A show cause was issued by the impugned order to the petitioner. This order is under challenge by the writ petitioner on several grounds. Learned Counsel appearing on behalf of the petitioner submits that the petitioner at the time when he initially joined the Intermediate Council, on deputation, against an advertisement, on the post of Assistant, there was no requirement of having a graduate degree, the rule envisaging that the Assistant should have a graduate degree, came in the year 1985 and, therefore, it would not be applicable in the case of the petitioner. A counter affidavit has been filed on behalf of the Board in which they have taken a stand that the petitioner was appointment in the year 1987 by the Board, at which time, the 1985 rules had already come into existence, which required that an Assistant should possess the minimum qualification of having a graduate 4 degree. Besides the aforesaid contention, it has also been submitted that since the petitioner do not have a graduate degree, he could not have been promoted to the post of Assistant Secretary which had not been sanctioned on the date on which the petitioner was promoted to the post i.e. from 01.12.1993 and, therefore, the impugned order is perfectly justified. Having heard the rival contentions on behalf of the parties, it is apparent to this Court that at the time when the petitioner was asked to join the Intermediate Council, he did not require to possess a graduate degree as if that had been the case, the Board would not have accepted his services at the first instance. It is further clear that the petitioner was allowed to work in the Intermediate Council after facing an open selection through Advertisement No. 4 of 1982 dated 01.02.1982 (Annexure-29) and, therefore, the Intermediate Council was already aware of the facts regarding the qualification etc. of the petitioner at that stage. Having worked for the period 1982 to 1985 regularly, the deputation of the petitioner came to a stop because of the dissolution of the Intermediate Council in the year 1985. It is also relevant that after the Intermediate Council was re-constituted, the petitioner was again permitted to join as an Assistant in the Intermediate Council and he was absorbed in 5 service from the date on which he was appointed. What is very relevant to show that the petitioner was treated to be in continuous service of the Intermediate Council is the fact that the Intermediate Council has accepted that the period of absence would be treated to be extra-ordinary leave and the petitioner was given all the monetary benefits for the two years between 1985 to 1987. These facts lead to the conclusion that the Board treated the petitioner to be in continuous service of the Intermediate Council, although he was on deputation at the time when he initially joined but later was appointed and the period of service as a deputationist was counted for the purposes of being treated as period in regular service. The next importation document is the consideration of the petitioner‟s case to the post of Assistant Secretary. Annexure-1 which is the order by which the petitioner was promoted to the post of Assistant Secretary which indicates that the order has been passed in light of the order of this Court passed in CWJC No. 1805 of 1996 dated 28.08.1998. The writ application was filed for the following prayers. “(i). That the petitioner‟s joining on 16.11.1995 as section officer of Bihar Intermediate Education Council (hereinafter referred to as Council) be accepted and he be given a proper assignment commensurate to 6 his posting in service. (ii) That his service for the period of his absence i.e. from 13.12.1990 to 15.11.1995 (four years eleven months three days) be regularized in accordance with the rules. (iii) That he be paid the salary for the period 1.6.1985 to 18.02.1987 for which leave has been sanctioned (Annexure-6). (iv) That he be paid the salary as section officer consequent upon his promotion from 20.1.1987 to 12.12.1990 (Annexure-7).” This Court after hearing the parties directed that the Chairman of the Intermediate Council should dispose of the representation of the petitioner by a reasoned order within a period of one month from the date of receipt/production of such representation. While considering the representation, Annexure-1 was issued in which the Intermediate Council took a decision that the petitioner should be promoted to the post of Assistant Secretary. In reply thereto, Counsel for the petitioner refers to Annexure-13 which is the order issued by the Director, Secondary, Primary and Adult Education Department, Government of Bihar on 03.12.1994 by which they have sanctioned one post of Assistant Secretary. It is submitted that since 7 the consideration by the Board was made on 09.04.1999, the petitioner has rightly been promoted to the post which was sanctioned on the date on which the order was passed. However, it seems that the Board has doubted the fact that the actual date for grant of sanction could only be treated from 03.12.1994 whereas the petitioner has been promoted to the post of Assistant Secretary with effect from 01.12.1993. The Board would have to consider what is to be done between the period 01.12.1993 to 03.12.1994 as obviously the post of Assistant Secretary was not sanctioned by the State Government during the interim one year period. Perhaps, the date of the petitioner‟s promotion would need to be shifted by the Board in accordance with the sanction order. On the basis of the aforesaid discussions, this Court does not find that the Board is justified in reverting the petitioner to the post of Routine Clerk by holding that he is not duly qualified for the post of Assistant on the basis of 1985 rules. Accordingly, the order dated 26.07.2004 as contained in Annexure-17 to the writ application is hereby quashed. This application is thus allowed. Anand ( Sheema Ali Khan, J. )