IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1695 of 1993 NAWAL KISHORE DAS & ANR Versus STATE & ORS ----------- 6 26 .8.2008 The only question that arises in this writ application is whether the petitioners who are Assistant Teachers would be entitled to receive a higher pay scale of I.A. trained from the year1977. The petitioners have retired during the pendency of this writ application. The facts of this case are that the petitioners were appointed in the year 1971 and before their appointment they took the teachers training course in the year 1966 to 1968. The petitioner no. 1 acquired the degree of I.A. in the year 1975 and completed his graduation in 1981, whereas petitioner no. 2 completed his I.A. in 1961 and B.A. in 1965. The petitioners claim that they were appointed much earlier to the respondents in Government service as Assistant Teachers and they also claim that they acquired the qualification of Intermediate and B.A. much before the respondents. It is their grievance that they were denied the scale of I.A. trained whereas the respondents 10 to 30 were given the scale of I.A. trained from the years 1977 to 1982 and were also given the scale of B.A. trained sometime in the year 1988 and 1989. The State has filed an affidavit in which they have taken a stand that the seniority list of women teachers is maintained separately and the seniority of teachers in the rural area and the urban area is also maintained separately and the petitioners who are teachers in the rural area were not entitled to promotion as per the seniority list maintained by the education department with respect to teachers posted in the schools in 2 the rural areas. The stand of the respondents is that the letter no. 3676 dated 21.10.1970 deals with the preparation of seniority list of teachers of Non-Government schools. This letter has been superceded by letter no. 4557 dated 15.12.1976 and as such is not helpful to the respondent State in justifying their actions. Letter no. 3905 dated 31.7.1978 which the State has relied upon in fact does not help the State in justifying the reasons for granting higher scale of I.A. trained/B.A. trained to the respondents, ignoring the claim of petitioners. Sub-clause 4 of Clause 1 of the letter states that the teachers of urban area and Assistant Teachers of rural areas could be transferred and posted in schools at rural or urban areas irrespective of their earlier posting. Thus this letter does not envisage a separate list of teachers for urban and rural areas. Letter no. 1952 dated 23.9.1982 clearly states that promotion should be granted in accordance with criteria laid down in letter no. 4557 dated 15.12.1976. Thus, the stand of the State is not at all tenable in view of their own averments. In fact there is no provision for maintaining a separate seniority list of Teachers who are working in schools situated in Rural or Urban Areas, as also there is no provision for preparing a separate seniority list for women. The State Government has issued a letter no. 4557 dated 15.12.1976 which deals with the appointment, posting, promotion, transfer, provision for leave, disciplinary proceedings and construction and maintenance of Non-Government Primay Schools. The said letter has been issued under Section 8 of Bihar Non-Government Elementary 3 Schools (taking over of control) Act, 1976 (hereinafter referred to as the „Act‟). Clause 3 of letter no. 4557 deals with the manner in which the seniority list would be prepared. It specifically states that the seniority list of teachers who have the qualification of Matric Trained, Intermediate Trained and B.A. Trained would be maintained separately. Sub Clause Gha (?k) of Clause 2 provides that the promotion in the graduate trained scale will be given to graduate trained teachers posted in intermediate trained scale on the basis of their seniority determined with reference to date of initial appointment. Sub Clause Ja (t) of Clause 2 provides that every year the seniority list of eligible teachers uptil 31st of December shall be prepared latest by the end of 7th February of the next year. Under the heading “promotion” certain criteria has been laid down by letter no. 4557 dated 15.12.1976, Sub-Clause (p) and Sub- Clause (N) of Clause (2) are relevant for the purpose. Sub-Clause (p) reads as follows:- (p) efgyk ,oa iq:Ô f’k{kdksa dh ojh;rk lwph ,d lkFk cukbZ tk,xhA (N) iwoZor~ nsgkrh ,oa Ógjh {ks=ksa dh vuqØe lwph vyx&vyx cusxhA f’k{kdksa dh lsok lekfIr ij nsgkrh ,oa Ógjh {ks=ksa dh lfEefyr vuqØe lwph cusxhA From the aforesaid Clauses it is quite clear that the seniority list with respect to teachers working in the rural areas and the urban areas would be separately maintained by the department and it is also apparent that the promotion would be made from the seniority list as mentioned in clause 7 of the letter no. 4557. 4 rRdky iwoZor~ nsgkrh {ks+= ,oa Ógjh {ks= esa izksUufr vyx&vyx nh tk;xh ,oa blds fy, mudh lwph Hkh vyx&vyx cukbZ tk;xhA vuqeksfnr lwph ls ojh;rk Øe esa ftyk f’k{kk v/kh{kdA voj&izeaMy f’k{kk inkf/kdkjh izoj dksfV dk osrueku Lohd`r djsaxsA Learned counsel for the petitioner however, referred to letter no. 1085 dated 4.12.1985 also issued under Section 8 of the Act which provides that from 1st of January, 1979 a combined list of teachers working in the rural and urban areas would be prepared. It was further resolved by the Education Department that the transfer, posting and promotion would be granted to the teachers in accordance with the combined list prepared by the department. Learned counsel therefore, submits that the provisions for promotion as provided under letter no. 4557 have been amended by letter no. 1085 dated 30th March, 1984 and thus after 1979 a combined list of all the teachers working in elementary schools were to be maintained and seniority list was to be fixed and promotion to the higher scale granted in accordance with the seniority and the vacancy in the scale. The stand of the State as mentioned earlier is that the petitioners would not be entitled to promotion as they were working in the rural areas and a separate seniority list was maintained for such teachers. Annexure-1 is the chart prepared by the petitioner which indicates the date on which the petitioners and the respondents were appointed and were granted I.A. trained scale. On perusal of this chart it appears that the petitioners 1 and 2 were not granted I.A. trained scale 5 whereas the respondents were granted the scale. In fact some of the respondents were granted the scale after the cut off date as mentioned in letter no. 1085 which is 1.1.1979. Therefore, the contention of the respondent State at paragraph 3 that the respondents were granted the higher scale as they were teachers working in town areas is not tenable in view of the circular issued by the respondents. No doubt the petitioner would have no case for the purpose of grant of higher scale in case of those respondents who were promoted prior to 1.1.1979 by virtue of the fact that they were working in the urban areas as before 1.1.1979 the seniority list of teachers working in urban areas was maintained separately. I do not agree with the submission made on behalf of the State that the Education Commissioner had directed vide letter no. 1952 dated 23.9.1982 to promote teachers because they were governed by the earlier circular i.e. 4557 specially in view of the fact that the petitioners were appointed in 1971 whereas the respondents were appointed, between the years 1972 to 1976. It cannot be said that the respondents have been granted a higher scale to I.A. trained and B.A. trained because they were being governed by the circular no. 4557. The scale was granted in the year 1982 to the respondents and the matter was considered in the year 1982 and on the date of consideration the provision for maintaining separate seniority list of teachers working in urban and rural areas if there was any such provision, had already been amended and as such the petitioners could not have been denied the higher scale on this ground. After discussing the relevant provisions of the two circulars 6 which cover the field for grant of the higher scale of I.A. trained and B.A. trained, I hold that the petitioners are entitled to receive the higher scale of I.A. trained and also B.A. trained as they are senior to the respondents have acquired the requisite qualifications before the respondents and were entitled to be considered by the District Establishment Committee from the cut off date i.e. 1.1.1979 in accordance with the posts that were available and vacant at that time. In the result the petitioners should file a representation along with a copy of this order and the Commissioner-cum-Secretary, Primary Education should dispose of their representations in the light of the observations aforesaid within a period of three months and pay the legal dues if the petitioners are entitled to the scale of I.A/B.A. trained within a period of three months after passing the order. The writ application is allowed to the extent mentioned aforesaid. Sanjay/A.F.R. (Sheema Ali Khan, J.)