IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.10011 OF 2004 1. VISHWANATH SINGH, SON OF LATE SRIDHAR SINGH, RESIDENT OF VILLAGE KAURA, POLICE STATION JAGDISHPUR, DISTRICT BHOJPUR. AT PRESENT, HEADMASTER MIDDLE SCHOOL, GHUGHUA, ARRAH MOFASSIL, DISTRICT BHOJPUR 2. UPENDRA NARAYAN SINGH, SON OF ALTE AWADH SINGH, RESIDENT OF VILLAGE DERATH, POLICE STATION AGION (SAHAR), DISTRICT BHOJPUR. AT PRESENT HEADMASTER, MIDDLE SCHOOL, CHANDA, TARARI, DISTRICT BHOJPUR 3. NARENDRA PRASAD SINGH, SON OF LATE RAM CHANDRA SINGH, RESIDENT OF VILLAGE IYER, POLICE STATION IYER, DISTRICT BHOJPUR. AT PRESENT HEADMASTER, MIDDLE SCHOOL, BARNAWA, JAGDISHPUR, DISTRICT BHOJPUR 4. MAHESHWAR PANDEY, SON OF DIN DAYAL PANDEY, RESIDENT OF VILALGE NAUHAR, POLICE STATION GAUHARA, DISTRICT BHOJPUR. AT PRESENT HEADMASTER, MIDDLE SCHOOL, EKWARI, SAHAR, DISTRICT BHOJPUR 5. LAXMAN PRASAD, SON OF LATE SHEO PRASAD RAM, RESIDENT OF VILLAGE EKAUNA, POLICE STATION BARHARA, DISTRICT BHOJPUR. AT PRESENT, HEADMASTER, MIDDLE SCHOOL, PIPRA, JAGDISHPUR, BIHIA, DISTRICT BHOJPUR 6. MITHILESH KUMAR SINGH, SON OF LATE SHEO KUMAR SINGH, RESIDENT OF VILALGE KURMURI, POLICE STATION TARARI, DISTRICT BHOJPUR. AT PRESENT, HEADMASTER, MIDDLE SCHOOL, PAUNA (GIRLS) AGION, DISTRICT BHOJPUR 7. SHIV KUMAR CHOUDHARY, SON OF SHRI SHEO PARSAN CHOUDHARY, RESIDENT OF VILLAGE MANIYACH, POLICE STATION SANDESH, DISTRICT BHOJPUR. AT PRESENT, HEADMASTER, MIDDLE SCHOOL, KUIYA, EKAUNA, BARHARA, DISTRICT BHOJPUR 8. SURAJDEO PRASAD SINGH, SON OF LATE MAHANGU SINGH, RESIDENT OF VILLAGE JETHWAR, POLICE STATION TARARI, DISTRICT BHOJPUR. AT PRESENT HEADMASTER, MIDDLE SCHOOL, KAKILA, JAGDISHPUR, DISTRICT BHOJPUR 9. CHANDRA SHEKHAR SINGH, SON OF SHRI KESHAV PRASAD SINGH, RESIDENT OF VILALGE DEORIA, POLICE STATION KOILWAR, DISTRICT BHOJPUR. AT PRESENT, HEADMASTER, MIDDLE SCHOOL, HAT POKHAR, JAGDISHPUR, DISTRICT BHOJPUR 10. DINESH PRASAD SINGH, SON OF SHRI GUPTESHWAR SINGH, RESIDENT OF VILLAGE ANDHARI, POLICE STATION CHAURI (SAHAR), DISTRICT BHOJPUR. AT PRESENT, HEADMASTER, MIDDLE SCHOOL, BIRAMPUR, KOILWAR, DISTRICT BHOJPUR 11. VIJAY KUMAR PANDEY, SON OF SHRI LALAN PANDEY, RESIDENT OF VILLAGE BASAO KALA, POLICE STATION SIKRAUL LAKH, DISTRICT BUXAR. AT PRESENT, HEADMASTER, MIDDLE SCHOOL, UMRAONGANJ SAHPUR, DISTRICT BHOJPUR …………………………………………………………………………..PETITIONERS VERSUS 1. THE STATE OF BIHAR 2 2. THE SECRETARY, DEPARTMENT OF PRIMARY AND ADULT EDUCATION, GOVERNMENT OF BIHAR, VIKASH BHAWAN, PATNA 3. THE DIRECTOR, PRIMARY EDUCATION, GOVERNMENT OF BIHAR, VIKASH BHAWAN, PATNA 4. THE DISTRICT EDUCATION ESTABLISHMENT COMMITTEE, BHOJPUR, THROUGH ITS SECRETARY, I.E. DISTRICT SUPERINTENDENT OF EDUCATION, BHOJPUR AT ARRAH 5. THE DISTRICT MAGISTRATE, BHOJPUR AT ARRAH 6. THE DEPUTY DEVELOPMENT COMMISSIONER, BHOJPUR AT ARRAH ……………………………………………………………………………RESPONDENTS ********** 4 08/12/2010 The 11 petitioners had filed CWJC NO, 13476 of 2000 claiming that he was entitled to be granted promotion to the post of Science Gradutate Teacher with effect from 11.04.1983. In the writ application aforesaid, the petitioners 1 to 10 filed an intervention application making the same claim. The writ application was disposed of on 06.04.2001 with a direction to the authorities to act as per the gradation list, contained in Annexure-I/3 of the intervention application and to take a decision in accordance with law so far as the case of the petitioner vis-à-vis others including the intervenors, within a period of three months. The order passed in CWJC No. 13476 of 2000 was challenged by the State of Bihar by filing LPA No. 407 of 2002, which was disposed of on 12.11.2003 with a further direction that the authorities may reconsider the gradation list and if the petitioners are entitled to the said promotion, the benefit should be given to them. In 3 compliance of the orders of this Court passed in the aforesaid writ application, Annexure-7 was issued granting promotion to the petitioner with a rider that it would be from the date on which Annexure-7 was issued. Similarly, Annexure-7/1 deals with the order passed in the writ application as well as the L.P.A. and thereafter the petitioners’ were granted promotion from the date on which the said order was issued i.e. 25.03.2004. Being aggrieved with Annexure-7 and Annexure-7/1, this wit application has been filed with a prayer that the petitioners should be given the pay scale of the promotional post from the date on which other juniors to the petitioners were granted the pay scale. Counsel appearing on behalf of the State submits that the orders impugned are in accordance with Rule 58A of the Bihar Service Code and Rule 74 of the Bihar Financial Rules, it is submitted that the petitioners would not be entitled to grant of the pay scale of the promotional post in view of the fact that they have not worked on the promotional post. Counsel for the petitioners relies on a decision of this Court in the case of Awadhesh singh vs. The State of Bihar & Others [2005 (1) PLJR 297] to submit that in similar circumstances, this Court after considering the provisions of Rule 58A of the Bihar Service Code and 4 Rule 74 of the Bihar Financial Rules has come to the conclusion, that where the promotion has not been granted because of the inaction of the authorities in question, a Government servant cannot be deprived of such benefit on account of inaction or failure on the part of other persons. This is also the view of the Supreme Court in the case of State of Kerala & Others vs. E. K. Bhaskaran Pillai [2007 (3) PLJR (SC) 26]. All the facts aforesaid are accepted by this Court. The question that arises before this Court is that even if the petitioners are entitled for grant of higher scale and promotion to the post of headmasters, as a result of grant of such scale, the question whether there is vacancies against the post of Headmasters has not been indicated either by the petitioners or by the State. The only reason that the petitioners have been granted such higher scale and granted promotion is because other juniors to the petitioners were granted the scales. The Court has not taken into account whether there were any vacancies for the post of Headmasters, when the persons juniors to the petitioners were granted the scale, at the time when the petitioners were granted the scale. This Court would not have interfere with the impugned Annexure-7, if the promotion were on notional basis, however, considering that juniors to the petitioners have 5 been granted the promotion as well as the scales, it would be most unfair to discriminate against the petitioners and deprive them of the scale that they are entitled to. I, therefore, hold that the petitioners would be entitled to the grant of the higher scale from the date on which juniors to the petitioners/similarly situated persons have been granted the scale. The concerned authorities are directed to pass the order granting scale, after confirming the facts stated aforesaid within a period of four months from the date of receipt of a copy of this order. This writ application is thus allowed. Anand ( Sheema Ali Khan, J. )