IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8438 of 2001 RAMASHANKAR PRASAD, son of Sri Ramnandan Prasad, resident of village Bhadahkhurd, post office Mahodipur, Police Station Siwan (Muffasil), District Siwan, at presently posted as a Assistant Teacher in Government Middle School, Lohganjar, Post Office Chhitanpur, Police Station Ziradei, District- Siwan. ………….Petitiioner. Versus 1. THE STATE OF BIHAR 2. The Director Human Resources Department (Primary Education), Bihar, Patna. 3. The Regional Deputy Director of Education Chapra, District- Saran. 4. The District Magistrate, Siwan. 5. The District Education Officer, Siwan, District Siwan. 6. The District Superintendent of Education, Siwan, District Siwan. 7. The Sub-Divisional Education Officer, Siwan, District Siwan. 8. Mainuddin Mian, presently posted as a Headmaster, in Government Middle School, Bindusar, Post Office Bindusar, Police Station Siwan (Muffasil), District Siwan. 9. Ram Rekha Prasad, presently posted as a Headmaster, in Government Middle School S. K. G. Siwan, Post Office S. K. G. Siwan, Police Station Siwan District Siwan. … Respondents. ----------- 6. 05.07.2010 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ petition reads as follows:- “1. That by way of this writ application the petitioner craves indulgence before this Hon’ble Court for issuance of a writ in the nature of “Mandamus’ or other appropriate writ/writs, direction/ directions, order/orders, for commanding the respondents to give promotion to the petitioner from 13.3.1989 on the post of the Headmaster in Government Middle School under Siwan District and thereafter give Consequesion benefit, whereby 2 and whereunder the persons i.e. respondent nos. 8 and 9 and other persons, who were junior to the petitioner in rank and file have got promotion to the post of Headmaster from 13.3.1982 and where as petitioner was much senior to the same.” Aforementioned prayer of the petitioner would go to show that the cause of action for such promotion arose if not on any other date at least on 13.3.1989 inasmuch as it is claimed that juniors to the petitioner were given promotion on the post of Headmaster to his exclusion. This writ petition came to be filed on 6.7.2001 and in such a writ petition cause of action of the year 1989 could not have been in fact raised on the ground that it was wholly stale and belated. The reliance placed by the petitioner on the gradation list will also be of no avail inasmuch as the respondent in their counter affidavit have taken a plea that the petitioner did not fulfil the requisite qualification and criteria for being promoted on the post of Headmaster. In this context, paragraph no. 3 of the counter 3 affidavit reads as follows:- “3. That, the present writ application has been filed by the petitioner for grant of promotion in the scale of Headmaster from 13.3.82 and to provide consequential benefits attached to the post. The claim of petitioner is not genuine since all the vacant posts of Headmaster till 31.12.1985 has already been filled up by the then District Education Establishment Committee. From 1.1.1986 the minimum qualification for the post of Headmaster is post graduate i.e. Master Degree and at least 5 years of minimum experience of service in graduate trained scale, therefore no promotion to the post of Headmaster has been given to the petitioner.” There is no denial to the aforementioned fact by the petitioner by filing any rejoinder affidavit and therefore this Court must hold that the petitioner was not qualified to hold the post. As with regard to plea of discrimination about juniors were given such benefit, respondents have again explained this aspect in paragraph 4 of the counter affidavit and it has been explained that even promotion given to so- called juniors to the petitioner was cancelled by order dated 24.8.1995 and the 4 same became subject matter of pending writ petition with an interim order. The statement of paragraph 4 of the counter affidavit has also not been controverted and therefore once this Court would come to hold that even alleged promotions were not justified, this Court cannot issue a direction to the respondents to perpetuate the illegality. As noted above, respondents have again taken a clear stand in paragraph 6 of the counter affidavit wherein the demarking line of the post of Headmaster upto 31.12.1985, based on earlier criteria and there being a new criteria with effect from 1.1.1986 has been explained by taking a plea that earlier vacancies up to 31.12.1985 were filled up from the eligible persons and several seniors to the petitioners could not be accommodated against such vacancies and the petitioner therefore also could not be promoted against vacancy of Headmaster prior to 1.1.1986. In paragraph 6 of the counter affidavit, the question of the petitioner has been explained and the same reads as follows: “ 6. That all the vacant posts of the Headmaster till 31.12.1985 has been filled up by 5 the then District Education Establishment Committee. There are so many teachers working in B. A. trained scale and senior to the petitioner have not been given promotion to the scale of Headmaster. Moreover, from 1.1.86 for their promotion to the post of Headmaster the minimum qualification is post graduate and at least five years experience in Graduate Trained scale.” This aspect has also not been controverted by the petitioner and therefore this Court must hold that this writ petition has no merit and is fit to be dismissed. It is ordered accordingly. kanchan (Mihir Kumar Jha, J.)