IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11129 of 2002 1. Navlesh Kumar Singh, Son of late Gauri Shankar Singh, Resident of Purani Bazar, Ward No. 6, P.S. Madhepura, District Madhepura, at present Headmaster, Middle School, Jitapur Circle, Murliganj, District Madhepura. 2. Mahabir Prasad Singh, (aged 46 years), Son of late Jalandhar Prasad Singh, Resident of Village Rahto, P.S. Kumarkhand, District Madhepura, at present Headmaster Middle School, Dhruvjotti Circle, Madhepura West, District Madhepura. 3. Ram Saran Yadav (aged 49 years), Son of late Raghuni Yadav, Resident of Village + P.O. Amrito, P.S. Sonwarsa, District Saharsa, at present Headmaster Middle School, Madhuban, Circle Madhepura West, District Madhepura. 4. Shiv Narayan Mehta (aged 51 years), Son of late Lal Chand Mohanpur Chumakh, P.S. Bihariganj at present Assistant Teacher, Middle School, Chausa. ---------- Petitioners Versus 1. The State of Bihar. 2. The Director, Administration-cum-Joint Secretary, Education Department, Bihar, Patna. 3. The Director, Primary Education, Bihar, Patna. 4. The Regional Deputy Director of Education, Koshi Division, Saharsa. 5. The District Magistrate-cum-Chairman, District Establishment Commissioner, Madhepura. 6. The Deputy Development Commissioner, Madhepura. 7. The District Education Officer, Madhepura. 8. The District Superintendent of Education, Madhepura. --------- Respondents ----------- 3 25.06.2010 Heard Mr. Ganesh Prasad Singh, learned senior counsel for the petitioner and counsel for the State. Mr. Ganesh Prasad Singh, learned senior counsel for the petitioner while pressing the writ application with regard to the following relief:- “1. That this is an application for issuance of a writ in the nature of certiorari for quashing the office order 2 issued under the signature of the District Superintendent of Education, Madhepura, dated 1.8.2002, whereby and whereunder the petitioners’ promotion to the posts of Headmaster, with retrospective effect has been cancelled and new date has been given against their names from which they will be entitled for the B.A. (trained) scale and the petitioners are further directed to deposit the excess salary which they have been paid because of wrong promotion in one installment in the Treasury and further for issuance of a writ in the nature of mandamus directing and commanding the respondent-authorities not to disturb the petitioners’’ present scale of salary as well as the posts upon which they are working and for issuance of any other appropriate writ, order or direction for which the petitioners may be found legally entitled to in the facts and circumstances stated hereinafter.” has submitted that as the impugned order passed by the Director and the consequential order passed by the District Education Officer had sought to visit the petitioners with civil and evil consequence including recovery, they were required to be given an opportunity of hearing but the same was never extended to them. He would, therefore, assail the impugned order only on the ground of violation of principle of natural justice. 3 Counsel for the State on the other hand, who has not filed any counter affidavit in this case with reference to the documents on record in the writ application, would submit that when this Court in CWJC No. 339 of 1993 had remitted the matter to the Director to hold an enquiry as with regard to ascertaining the fact regarding grant of headmaster’s scale to the petitioners who were arrayed as respondents in that case on account of the seniors, the writ petitioners of CWJC No. 339 of 1993, being not given such promotion, the Director had only called for the relevant papers and having looked into them had recorded his findings that the promotion given to the petitioners prior to promotion of their seniors was unjustified and accordingly, the District Superintendent of Education should place the matter in the meeting of the District Education Establishment Committee, whereafter, the necessary decision should be taken in accordance with law. He has further referred to a show-cause notice issued by the District Superintendent of Education to the petitioner 4 no.1 dated 19th February, 2001 to substantiate that an opportunity of hearing was given to the petitioner and therefore, the plea of violation of principle of natural justice is wholly unsustainable. Mr. Singh in reply would submit that it is true that the District Superintendent of Education, Madhepura had given notice but that was only amount to post facto notice, inasmuch as, the Director himself had already taken a decision which was only sought to be complied by the District Education Establishment Committee and therefore, the two impugned orders would still be deemed to be in violation of principle of natural justice. In order to appreciate the aforementioned submissions, it would be first necessary to notice as to the genesis of the impugned order. In this regard, it would appear that a writ application, CWJC No. 339 of 1993 was filed in this Court by Kriti Narayan Mandal and others assailing the order granting promotion on the post of Headmasters to the petitioners, who were made respondent 5 nos. 4 to 7 in that writ application. This Court, having noted the aforementioned submissions of petitioners of CWJC No. 339 of 1993 had passed the following order on 16.3.1994:- “This writ application has been filed by the petitioners seeking quashing of the alleged orders of promotion granted to respondents 4 to 7 and 10 in B.A. trained scales and for a further a direction to recover the excess amount of salary drawn by those respondents in the said scale. 2. According to the petitioners, they and the private respondents are working as assistant teacher in the taken over schools situated in the district of Madhepura. By detailing various facts relating to the qualifications and appointments of the petitioners and the private respondents, it has been sought to be established that the District Superintendent of Education, Madhepura, has favoured the respondents concerned by illegally granting promotion in B.A. trained scale, which is contrary to the principles and law applicable to the maters of promotion in the cadre of assistant teachers of taken over elementary schools. 3. In our opinion, this matter needs to be examined and thoroughly looked into by the Director, Primary Education at the first instance. Accordingly, it is directed that the respondent-Director will call for the entire records relating 6 to the promotion granted to the concerned respondents and examine the validity thereof. If he finds that any illegality has been committed in granting such promotion he will pass appropriate orders in accordance with law. It is also directed that in case he finds that the District Superintendent of Education or any other authority had acted malafidely in showing undue favour to any assistant teacher then suitable disciplinary action should be taken against such erring officer. 4. the writ application is, accordingly, disposed of with the aforesaid directions. No cost.” It thus becomes clear that in compliance of the aforesaid order, the Director had called for the records from the office of the District Superintendent of Education and thereafter had passed an order holding that grant of promotion to the petitioners and denial of the same to the petitioners of CWJC No. 339 of 1993, who were admittedly seniors to the petitioners, was wholly unjustified. It was also recorded that while these petitioners were granted promotion with effect from 1.10.1988, 19.3.1991 and 1.4.1991, others were granted such promotion only with effect from 7 16.9.1993. On these findings, the Director had come to the conclusion that the writ petitioners could not have been granted promotion prior to 16.9.1993, the date on which their seniors were given such promotion. Having held so, the Director had remitted the matter to the District Education Establishment Committee for reconsidering the whole matter with regard to the grant of promotion and in case it was found that the promotion of the petitioners could not been given prior to 16.9.1993, recovery could also be made from the petitioners after cancelling their promotion. In the opinion of this Court, such an order passed in compliance of the direction given by this Court limited to a fact finding enquiry held by the Director cannot be said to be a final order, inasmuch as, the matter was still left open to the competent authority, namely, the District Education Establishment Committee. It is not in doubt that after passing of the said order by the Director on 5.2.2001, the District Superintendent of 8 Education by his letter dated 19.2.2001 had issued show-cause notice as also fixed date for appearance of the petitioners by way of personal hearing in terms of the order of this Court passed in CWJC No. 339 of 1993. In such notice, the petitioners were also asked to produce the letter of appointment order of promotion as also necessary certificates of their educational and training qualification. It is, thus, clear that the petitioners were given notice as also an opportunity of hearing before passing of the actual impugned order dated 1.8.2002 by D.S.E., Madhepura on the basis of which recovery has already been effected from the petitioners. Thus, this Court would find the principles of natural justice was strictly adhered to while passing the impugned order by District Superintendent of Education, Madhepura. It has to be also noted that when this writ application was taken up for the first time under the heading ‘For Admission’ on 30.9.2002, this Court had also not been satisfied with any of the documents brought 9 on record that the petitioners were actually given such promotion with effect from 16.9.1993. It has to be held that the earlier promotion given to the petitioners was itself bad. Such a bad order, if has been rescinded, the technical plea of rule of natural justice can not come to the rescue of the petitioners. This Court, therefore, is satisfied that the order passed by the Director and the District Superintendent of Education as contained in Annexure 18 & 19 does not suffer from any infirmity and is infact a fall out of the direction given by this Court in the order dated 16.3.1994 in CWJC No. 339 of 1993. At this stage, learned senior counsel would point out that the petitioner no.1 would be entitled for grant of matric trained scale of pay with effect from 28.7.1985. In the opinion of this Court such plea cannot be entertained for examining the impugned order, inasmuch as, the main zone of controversy as remitted by this Court was not with regard to the date of promotion of the 10 petitioner no.1 nor any relief to this effect has been claimed by them in this writ petition. In fact, such belated claim of the petitioner no.1 can also not be entertained specially when he had accepted his promotion w.e.f. 1.10.1988 without any demure or protest. Moreover, once any antedating of promotion of petitioner would be allowed the same would again have spiraling effect as others being senior to him including the petitioners of CWJC No. 339 of 1993 would again claim their promotion w.e.f. 28.7.1985. This Court can never allow this endless exercise to go on and on specially when it has found no factual or legal error in the impugned orders. It is, however, made clear that non- interference of this Court in the writ application filed by the petitioners would not mean that the petitioners’ promotion in the headmaster’s scale of pay would stand debarred for ever. Therefore it is observed that they would be also entitled for consideration of their such promotion from due date and in any event prior to their juniors being given such promotion. 11 In the light of the aforementioned observations and findings, this application must be held to be devoid of any merit and the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)