IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2541 of 2004 1. GANESH CHOUDHARY 2. UMESH PRASAD CHOUDHARY, BOTH SONS OF RAM SAGAR CHOUDHARY (SUBSTITUTED PETITIONERS VIDE M.J.C. NO. 3587 OF 2001, I.A. NO. 71 OF 2003) ORDER DATED 4.7.2003, RESIDENT OF VILLAGE/PO TAJPUR, DISTRICT BEGUSARAI WHO RETIRED (NOW DEAD) AS HEAD MASTER, PRIMARY SCHOOL JIT BAJITPUR BACHHWARA WEST, DISTRICT BEGUSARAI. ---------------------------------------------------------------------------------------------- PETITIONERS Versus 1. THE STATE OF BIHAR THROUGH COMMISSIONER AND SECRETARY, PRIMARY, SECONDARY AND ADULT EDUCATION, VIKASH BHAWAN, PATNA. 2. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, VIKASH BHAWAN, PATNA. 3. THE DISTRICT EDUCATION ESTABLISHMENT COMMITTEE, BEGUSARAI THROUGH ITS CHAIRMAN, DISTRICT MAGISTRATE, BEGUSARAI. 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, BEGUSARAI. -------------------------------------------------------------------------------------------- RESPONDENTS ************ 6 7.12.2010 Petitioner was a teacher in the elementary school. The erstwhile petitioner died claiming his time bound promotion. Ram Sagar Choudhary moved this Court by filing CWJC No. 7726 of 1998 which was disposed of on 29.9.1999 with a direction that the second time bound promotion of the petitioner should be considered by the District Superintendent of Education, Begusarai within a period of two months. Thereafter the contempt application was filed numbered as M.J.C. No. 3589 of 2000. The stand of the State was that the petitioner was not entitled to the second time bound promotion as he had already got the first time bound promotion and because of the fact that the calculation of 2 25 years would be from 1.4.1969, which would actually entitle the petitioner to be granted second time bound promotion on 1.4.1994. The scheme for grant of time bound promotion expired w.e.f. 1.1.1986. It has also been stated that the scheme for grant of time bound promotion expired on 1.4.1986 and, therefore, petitioner was not at all entitled for grant of second time bound promotion. The contempt application was disposed of with liberty to the petitioner to challenge the impugned order as contained in Annexure-6. Counsel for the State refers to the circular 10770 dated 30.12.1981. Sub clause (vii) of Clause 11 provides that the government servants who have already been promoted or for getting higher scale due to merger or upgradation would be entitled to further time bound promotion unless specifically ordered by the State Government. This resolution of the Government has been relaxed vide memo no. 4245 dated 16.7.1985 wherein Clause 2 of the notification has relaxed the Clause 11(vii) and allowed time bound promotion to such persons who have been granted earlier promotion, if, others senior 3 to him have also been given the same benefit. Learned counsel for the petitioner submits that the interpretation of the State in calculating the time bound promotion from the date of grant of the first promotion of the petitioner is not justified. There is no rule or regulation which envisages such a calculation. Counsel infact refers to the resolution dated 30.12.1981 which deals with the time bound promotion. Sub clause (ii) of Clause 11 reads as follows: “If an employee who is otherwise fit for promotion and has not been able to get a single promotion by 10 years of service notwithstanding the fact that a specified percentage of the cadre is already provided in the different levels of promotion inclusive of the selection grade, he should be promoted to the junior selection grade at the end of the tenth year.” Sub clause (iii) of Clause 11 further provides as follows: “If an employee, although otherwise found fit for a second promotion, has not been able to secure a second promotion by the 25th year of his service notwithstanding the fact that a specified percentage of the cadre is already provided in the different levels of promotion inclusive of the selection grade, he should be promoted to the senior Selection grade at the end of the 25th year.” Apparently the State is interpreting the term „service‟ from the date on which the earlier promotion/time bound promotion has 4 been granted. The word service would mean the date on which the petitioner joined his service. The language of the Clause does not speak of the date of grant of time bound promotion or the date on which the promotion was granted for the purposes of computing 25 years in service. This interpretation does not appear to be correct. The question before this Court is, therefore, whether the other persons similarly situated and senior to the petitioner have been granted the same benefit. This aspect would have to be considered by the Director, Primary Education after taking into account the gradation list. It would have wide implications, therefore, the Director, Primary Education would definitely require some tome to consider this aspect and place it before the Principal Secretary, Human Resources Department before passing any final order in the case of the petitioner. The matter is remitted back to the Director, Primary Education who should pass an appropriate order after consulting and getting the approval of the Principal 5 Secretary, Human Resources Department, within a period of six months. An argument has also been advanced on behalf of the counsel for the State that the petitioner‟s services would be counted from the date he became a trained teacher although he was in service since 1960. There is no material before this Court to support such a submission. Counsel for the petitioners on the other hand refers to Annexure-3 i.e. letter no. 1147, dated 17.6.1995 to contend that the submissions made by the counsel for the State that the petitioner‟s services would be treated from the date he was promoted as an assistant teacher. This aspect of the matter may also be considered while considering the case of the petitioner. This writ application is disposed of with the aforesaid observations and directions. Sanjay ( Sheema Ali Khan, J.)