Patna High Court CWJC No.14924 of 2007 (02) dt.30-11-2011 IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.14924 OF 2007 ========================================== ABID ANSARI, S/O LATE HAQUE RASHUL MIYAN, R/O VILLAGE AND POST OFFICE KOCHAS, DISTRICT ROHTAS, AT PRESENT (RETIRED) HEADMASTER, MIDDLE SCHOOL, SIWAN, P.O, DHANEJ, DISTRICT ROHTAS. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE SPECIAL SECRETARY CUM DIRECTOR (PRIMARY EDUCATION), BIHAR, NEW SECRETARIAT, PATNA. 3.THE DISTRICT EDUCATION ESTABLISHMENT COMMITTEE, ROHTAS THROUGH ITS CHAIRMAN DISTRICT MAGISTRATE, ROHTAS(SASARAM). 4.THE DISTRICT SUPERINTENDENT OF EDUCATION, ROHTAS(SASARAM). ………………………RESPONDENTS. WITH CIVIL WRIT JURISDICTION CASE NO.15548 OF 2007 ========================================== RAM BACHAN SINGH, S/O LATE SARDARI SINGH, R/O VILLAGE JARLAHI MATHIA, POST OFFICE MANI, POLICE STATION BIKRAMGANJ, DISTRICT ROHTAS AT PRESENT (RETIRED) HEADMASTER, MIDDLE SCHOOL BANSAGAR, CIRCLE KARAKAT, DISTRICT ROHTAS. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE SPECIAL SECRETARY CUM DIRECTOR (PRIMARY EDUCATION), BIHAR, NEW SECRETARIAT, PATNA. 3.THE DISTRICT EDUCATION ESTABLISHMENT COMMITTEE, ROHTAS, THROUGH ITS CHAIRMAN, DISTRICT MAGISTRATE, ROHTAS(SASARAM). 4.THE DISTRICT SUPERINTENDENT OF EDUCATION, ROHTAS, SASARAM. ………………………RESPONDENTS. ========================================== 02 30-11-2011 Heard counsel for the parties. In both these writ applications, the petitioners are aggrieved by an order dated Patna High Court CWJC No.14924 of 2007 (02) dt.30-11-2011 12.10.2007 passed by the Special Secretary cum Director, Primary Education, Bihar, wherein, their claim for retrospective promotion in the B.A trained scale w.e.f. 01.04.1981 has been rejected. Mr. Uma Kant Verma, learned counsel appearing on behalf of the petitioners in both these cases has submitted that a settled event could not be unsettled and the petitioners having been already given promotion by the competent Authority on the post of B.A. trained teacher on 01.10.1997 w.e.f. 01.04.1981, ought to have been not subjected to cancellation of their promotion. In this regard, he has also submitted that at the relevant point of time the seniority list had made them entitled to claim their promotion from the date their juniors were given such promotion. He has accordingly, submitted that the impugned order passed by the Special Secretary cum Director, Primary Education is wholly without jurisdiction as also erroneous and therefore it should be quashed. Mr. A.K Upadhayay as also Mr. Neeraj Nandan, learned counsels appearing for the State in these two cases on the other hand have Patna High Court CWJC No.14924 of 2007 (02) dt.30-11-2011 submitted that the issue relating to the promotion of the petitioners in the B.A trained scale had a spiral story, inasmuch as, the petitioners claim to be the victim on account of their juniors being given promotion in the B.A trained scale, which alone led to some sort of rectification by also allowing them promotion in the B.A trained scale w.e.f 01.04.1981, was itself bad inasmuch as ultimately it was discovered that even senior to the petitioners were not given such promotion in B.A trained scale. They have also explained that in fact there was no proper seniority list prepared in which the names of all the eligible persons were included. Mr. Upadhayay in this regard has specifically pointed out that at the time of considering the case of the promotion of the petitioners, a gradation list of only 8 persons was drawn which was wholly illegal in view of the earlier rules contemplating year wise preparation of gradation list of all qualifying teachers for the promotion of the post of B.A/B.Sc trained scale. In the considered opinion of this Court, all these aspects are now not required Patna High Court CWJC No.14924 of 2007 (02) dt.30-11-2011 to be gone into on account of two reasons. Firstly, the Government in the year 1993 had framed statutory rules for grant of promotion which was given retrospective effect w.e.f 01.01.1986. Secondly after the promotion of the petitioners was cancelled and the matter was remitted back, their cases had to be reconsidered strictly in accordance with 1993 Rules which had envisaged the manner of drawing the gradation list of all the eligible persons by altogether abolishing the concept of I.A trained post and infact from the post of matric trained teacher, to the post of B.A trained teacher. The issue relating to finalization of the seniority as contemplated in 1993 Rules also had been in dispute for which was ultimately settled by the judgment of the Full Bench in the case of Ram Nath Singh & Ors vs The State of Bihar & Ors, 2009(3) PLJR 384, wherein, a direction has been given for preparation of fresh gradation list and to consider the cases of all the eligible persons in terms of the revised gradation list. Such gradation list to be prepared in terms of the judgment of the Full Bench had to include not Patna High Court CWJC No.14924 of 2007 (02) dt.30-11-2011 only the names of the working teachers who had become eligible for promotion w.e.f. 01.01.1986 but also the name of the petitioners. In that view of the matter, the petitioners' case also has to be now considered for grant of B.A trained scale w.e.f the date their juniors in the said gradation list have been allowed to retain their promotion in the B.A trained scale and/or given such promotion in the B.A trained scale. Admittedly, the promotion given to the petitioners were cancelled and they have not been restored as yet. The petitioners therefore, would be also entitled for consideration of their cases in the B.A trained scale, in the light of the observation and direction given in the judgment of the Full Bench in the case of Ram Nath Singh (supra). Since the direction of the Full Bench granting the period of six months for drawing such gradation list has already been completed, this court hopes and believe that the gradation list of the matric trained teachers of Rohtas district must have been finalized and even the case of promotion on the basis of the fresh gradation list could have been taken. If such Patna High Court CWJC No.14924 of 2007 (02) dt.30-11-2011 decision in the case of petitioners who have already retired in the year 2001 have already been taken, the District Programme Officer will only inform the petitioner with regard to such decision but if for any reason whatsoever their cases has not yet been considered for grant of promotion on the post of B.A. trained teacher the same must be done forthwith and the final decision as with regard to giving promotion in the B.A trained scale from due date must be taken and communicated to the petitioner within a period of six months from the date of receipt/production of a copy of this order in view of fact that entitlement of the petitioners including the fixation of their pension will depend on such decision of the Authorities as with regard to the grant of B.A trained scale. At the same time, this Court must make it clear that the earlier promotion given to the petitioners on 01.10.1997 before its being rescinded by the impugned order in the earlier writ petition and being affirmed in the impugned order of this writ application would not entail any adverse consequence on the petitioner, so far it relates to recovery of Patna High Court CWJC No.14924 of 2007 (02) dt.30-11-2011 any amount already paid to them by reason of such promotion given to them on 01.10.1997. As a matter of fact, the petitioners cannot be subjected to any recovery as there was no misrepresentation on their part and if the procedure meant for promotion was not followed by the Authorities that cannot make the petitioners liable to refund such amount. If, however, no recovery has been made from the petitioners they will not be entitled to claim monetary benefit on the basis of cancellation of their promotion. With the aforementioned observation and direction, this application is disposed of. RANJAN (Mihir Kumar Jha, J)