IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15869 of 2007 ====================================================== 1. Jagat Narayan Singh, son of late Ram Vilash Singh, V.P.Singh Adarsh Uchch Vidalaya, Hasanpur, Vaishali, Resident of village Birpur, Post Ramnagar Karai, P.S. Bhadh, District Patna 2. Rameshwar Rai, son of Sitab Lal Rai, Janata Uchh Vidyalaya, Panapur, Dharampur, Vaishali, resident of village Siwan Mohalla, Post Jhauganj, P.S. Chachkala, District Patna 3. Chandrika Rai, son of Shri Daroga Rai, Janata Uchh Vidalaya, Panapur, Dharampur, Vaishali, resident of village Kutubpur, Post Garjaul, P.S. Bhagwanpur, District Vaishali 4. Dev Babu, son of Sri Ambika Singh, Raj Kishore Uchh Vidyalaya, Yusufpur, Hajipur, Vaishali, resident of village Khargpur, P.S. Phulwari Sharif, District Patna 5. Amir Prasad, Son of late Thaga Pd. Yadav, Sahyogi Uchh Vidyalaya, Panapur, Dharampur, Vaishali, resident of village Cheharkala, P.S. Goraul, District Vaishali 6. Gautham Bhakt son of late Harihar Bhakt, G.A. Inter Vidyalaya, Hajipur, Vaishali, resident of village Mahnar Maliktola, P.S. Mahnar, District Vaishali 7. Pramod Kumar Rai, son of Vindhyachal Rai, S.M.S. Uchh Vidyalaya, Dighi, Hajipur, Vaishali, resident of village + Post Purendaha, Rajwara, P.S. Sonbarsa, Distrtict Sitamarhi 8. Ram Nath Singh, son of late Maheshwar Singh, Uchh Vidyalaya Singhara, Vaishali, resident of village Phulbariya, Post Morganagar, P.S. Mahua, District Vaishali 9. Janardan Prasad Sinha, son of late Mohit Singh, G.A. Uchh Vidyalaya, Bhagwanpur, Vaishali, resident of village Bileshnupur Badey, P.S. Bhagwanpur, District Vaishali 10. Rajeshwar Prasad Singh, son of late Dhanushdhariu Singh, Rajendra Vidya Mandir (Uchh Vidyalaya) Maker Saran, resident of village Rakunbagha, P.S. Maker, District Chapra 11. Sri Niwas Pandey, son of Rup Narayan Pandey, S.M.S. Uchh Vidyalaya, Dighi, Hajipur, Vaishali, resident of village + Post + P.S. Devariya, District Muzaffarpur .... .... Petitioners Versus 1. The State Of Bihar 2. Secretary, Human Resources Development Department, Govt. of Bihar, Patna 3. Deputy Secretary, Human Resources Development Department, Govt. of Bihar, Patna 4. Director, Secondary School, Bihar Govt., Patna 5. Regional Deputy Director, Tirhut Division, Muzaffarpur 6. District Education Officer, Vaishali, Hajipur .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13044 of 2008 ====================================================== Gopal Prasad Singh, son of late Roopdawan Singh, resident of village 2 Jalalpur, P.S. Bheldi, PO Apahar District Saran at present working as Incharge Headmaster Ramwatar High School, Basatpur Shobhepur, at and PO Basatpur, P.S. Bheldi, District Saran .... .... Petitioner Versus 1. The State Of Bihar through the Commissioner cum Secretary, Department of Human Resources Development, Bihar, Patna 2. Director, Secondary Education, Bihar, Budh Marg, Patna 3. The Regional Deputy Director of Education, Saran, Chapra 4. District Education Officer, Saran, Chapra 5. Treasury Officer, Saran, Chapra .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.10940 of 2009 ====================================================== Krishnadeo Pandey, son of Sri Madhusudan Pandey, at present posted as Incharge Headmaster, High School Akbarpur, P.O. Akbarpur, P.S. & District Nawada .... .... Petitioner Versus 1. The State Of Bihar 2. The Director, Secondary Education, Govt. of Bihar, Budh Marg, Patna 3. The Regional Deputy Director of Education, Magadh Division, Gaya, P.O., P.S. and District Gaya 4. The District Education Officer, Nawada, P.O., P.S. & District Nawada .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.14818 of 2009 ====================================================== 1. Ramashish Sharma S/O Late Pradeep Sharma Vill- Baigini, P.S. Hulasganj, Distt. Jehanabad 2. Nagendra Prasad Singh S/O Late Jag Narayan Sinha Vill- Laraua, P.S. Makhadumpur, Distt. Jehanabad 3. Kamleshwar Sharma S/O Late Sheodeo Sharma Vill- Basantpur, P.S. Parasbigha, Distt. Jehanabad .... .... Petitioners Versus 1. The State Of Bihar 2. Principal Secretary, Deptt. Of Human Resources, Vikash Bhawan, New Secretariat, Patna 3. Director, Secondary Education, Budha Marg, Patna 4. Regional Deputy Director of Education. Magadh Division, Gaya 5. District Education Officer, Jehanabad .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.15540 of 2009 ====================================================== Siyaram Kumar S/O Sri Hardeo Singh Vill.- Amarpura, P.S.- Pali, Distt.- Jehanabad .... .... Petitioner 3 Versus 1. The State of Bihar through the Principal Secretary/Commissioner Human Resources Development Department, Government Of Bihar, Patna 2. The Principal Secretary/Commissioner, Human Resources Development Department, Government of Bihar, Patna 3. The Director (Secondary Education), Bihar, Patna 4. The Deputy Director, Secondary Education, Bihar, Patna 5. The Regional Deputy Director of Education, Magadh Division, Gaya 6. The District Education Officer, Jehanabad .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.1234 of 2010 ====================================================== 1. Sunil Kumar S/O Shri Indra Narain Mandal R/O Vill Panchvati Nagar, P.O.Rajendra Nagar, P.S.Sultanganj, Patna-16 2. Rameshwar Prasad S/O Late Nathun Prasad R/O Vill /Mohalla Sahabehore Ki Takia Malsalami, Ps.Malsalami,P.O.Patnacity, Distt-Patna 3. Madna Nand Tiwari S/O Late Siddheshwar Tiwari R/O Vill Bishambharpur,P.O.Bihta, P.S.Bihta,Distt-Patna 4. Shyam Lal Ram S/O Late Chillgu Ram R/O Vill Mohalla Azad Nagar, P.O. Digha, P.S.Digha, Distt-Patna 5. Mahendra Prasad Yadav S/O Late Chhotu Prasad R/O Vill Beldhana, P.O.Noorsarai, P.S.Chandi, Distt-Nalanda 6. Gopal Krishna S/O Late Dr. Mahavir Prasad R/O Vill /Moh Mahendru, P.O. Mahendru, P.S.Sultanganj, Patna 7. Binod Bihari S/O Shri Ram Pyare Singh R/O Vill Horidih, P.O.Jharna Sareg, P.S.Nimchak Bathani,Gaya 8. Balbir Prasad Singh Yadav S/O Shri Guluma Dhari Singh Yadav R/O Vill Chaurma , P.O. Dohra, P.S. Nardiganj, Distt-Nawada .... .... Petitioners Versus 1. The State Of Bihar Through Principal Secretary , Department Of Human Resources Development Government Of Bihar, Patna 2. Deputy Secretary, Human Resources Development Department Government of Bihar, Patna 3. Director, Secondary Education, Government of Bihar, Patna 4. Divisional Establishment Committee through the Commissioner, Patna Division, Patna 5. Regional Deputy Director of Education, Patna Division, Patna 6. District Education Officer, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.5503 of 2010 ====================================================== Raghwendra Narayan Rakesh S/O Shri Balmiki Sharma R/O Village - Orbigha, P.S - Karpi, District - Arwal. .... .... Petitioner Versus 1. The State Of Bihar , Through The Principal Secretary, Department Of Human Resources, New Secretariat, Patna. 4 2. Principal Secretary, Department Of Human Resources, New Secretariat, Patna. 3. Director, Secondary Education, Budh Marg , Patna. 4. Regional Deputy Director of Education. Magadh Division, Gaya 5. District Education Officer, Jehanabad 6. Krishna Sharma, S/O Name Not Known To The Petitioner, Presently Working As Assistant Teacher, Bhagwat High School, Sahar Telpa, District - Arwal. .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.20809 of 2010 ====================================================== Chandra Kishore Kumar S/O Shri Sadhu Sharan Kumar Assistant Teacher, Painal High School, Patna, District - Patna .... .... Petitioner Versus 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, New Secretariat, Patna 3. The Joint Secretary, Human Resources Development Department, Government of Bihar, New Secretariat, Patna 4. The Director, Secondary Education, Govt. Of Bihar, Budh Marg, Patna- 800001 .... .... Respondents ====================================================== Appearance : (In CWJC No.15869 of 2007) For the Petitioner/s : Mr. Rajendra Pd.Singh, Sr.Adv. Mr. Vinod Kumar, Adv. For the Respondent/s : Mr. Sunil Kumar Mandal, SC24 Mr. Bipin Kumar, AC to SC24 (In CWJC No.13044 of 2008) For the Petitioner/s : Dr.M.P.Shukla, Adv. For the Respondent/s : Mr. Dhurjati Kr.Prasad, GPVII (In CWJC No.10940 of 2009) For the Petitioner/s : Mr. Bipin Bihari Singh, Adv. Mr. Priyank Samdarshi, Adv. For the Respondent/s : GA8 (In CWJC No.14818 of 2009) For the Petitioner/s : Mr. Sanjay Kumar, Adv. Mr. Krishna Chandra, Adv. Mr. Ajay, Adv. For the Respondent/s : G.A.X (In CWJC No.15540 of 2009) For the Petitioner/s : Mr. V.R.P.Singh, Adv. Mr. Lavakush Kumar, Adv. For the Respondent/s : Mr. Rajeev Kumar Sinha, AC to AAG15 (In CWJC No.1234 of 2010) For the Petitioner/s : Mr. Shree Kant Pandey, Adv. Mr. Arun Kr.Singh, Adv. 5 For the Respondent/s : Mr. Rajiv Roy, G.P.V Mr. Suresh Kumar, AC to GPV (In CWJC No.5503 of 2010) For the Petitioner/s : Mr. Sanjay Kumar, Adv. For the State : SCV For respondent no.6 : Mr. Shailesh Kumar Sharma, Adv. (In CWJC No.20809 of 2010) For the Petitioner/s : Mr. Bipin Bihari Singh, Adv. For the Respondent/s : Mr. Awanish Nandan Sinha, G.P.XI Mr. Shubhankar Sharma, AC to GPXI ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA CAV ORDER 7 19-12-2012 All these writ applications involving almost an identical main issue, namely, promotion on the post of Headmaster from amongst the physically trained teachers working in the taken over secondary schools, have been heard together and are being disposed of by this order. 2. It would be, however, necessary to take into account the pleadings on record of all these writ applications before the aforesaid common as well as anciliary issues raised therein are considered and decided. C.W.J.C.No. 15869/2007 3. The eleven petitioners in this writ application have assailed the notification dated 24.12.2006 issued by the Deputy Secretary of Human Resources Development Department, whereby and whereunder the clarification has been made that the physical trained teacher are not eligible to be considered for appointment/ promotion for the post of Headmaster. 6 4. At the outset it has to be noted that in C.W.J.C.No. 15869/2007 an intervention application, I.A.No. 425/2012, has been filed on behalf of eleven more teachers, namely, Saroj Kumar, Ram Janaki Mishra, Rajendra Rai, Ram Avtar Singh, Suresh Prasad Singh, Lal Bachcha Singh, Parshuram Singh, Arjun Singh, Nand Singh, Tribhuvan Singh and Manager Chaudhary, with a prayer for their being added as petitioners in C.W.J.C.No. 15869/2007. 5. Though Patna High Court Rules under Chapter XXIC laying down the norms of disposal of the writ application does not evisage addition of any person for being added as writ petitioners, inasmuch as the provision therein contemplates addition of a person seeking intervention only as a respondent to oppose the prayer in this writ application, this Court, taking into account that the intervener applicants themselves have claimed to have their cases identical to eleven petitioners of C.W.J.C.No. 15869/2007, would in the interest of justice allow their prayer in I.A.No. 425 of 2012 with a condition that they would also now be governed by the result of this writ application and will have no liberty to raise the same question afresh independently in a separate proceeding before this Court. 6. The writ petitioners in this writ application have 7 stated that all of them had undergone the course of training of physical education training and have also passed the pescribed examination of such training course, whereafter they were appointed on the post of physical trained teachers in different nationalized High Schools in the pay scale of an Assistant Teacher. In the appointment letter all the trained teachers in physical education including the petitioners were also put under obligation to teach any other subject as may be assigned to them by the Headmaster in addition to their duty as teacher of physical education. 7. It has also been stated that earlier there was some dispute in 1974 with regard to grant of Postgraduate scale as also their promotion on the post of Headmaste to the teachers of Physical Educaiton but the issue was resolved by this Court by a Division Bench Judgment of this Court dated 18.1.1979 in the case of Kumar Kant Choudhary vs. District Education Officer, Darbhanga & ors., reported in 1979 BBCJ 184, wherein it was held that a graduate having Diploma in physical education should be treated as trained graduate in the matter of salary and emoluments and also eligible for promotion on the post of Assistant, Headmaster and Headmaster in a High School. Reliance has also been placed on an order of a learned Single Judge dated 8 7.11.1979 in C.W.J.C.No. 1848/1979 wherein the ratio laid down by the Division Bench in the case of Kumar Kant Choudhary (supra) was followed. As a matter of fact the petitioners have proceeded that in view of both the Division Bench Judgment in the case of Kumar Kant Choudhary it has to be necessarily held that the issue promotion/ appointment on the post of Headmaster in Nationalized High School for a teacher possessing qualification of training in physical education also stands settled and covered, and a teacher graduate trained in physically education is to be also deemed to be qualified for being promoted on the post of Headmaster in the High School. 8. In this regard strong reliance has also been placed on a communication of the Director, Secondary Education dated 24.11.1986 which according to the petitioners was issued by way of clarification that there should be no line of distinction between general teachers of the High School vis-à-vis the physically trained teachers who in the judgment of this Court in the case of Kumar Kant Choudhary (supra) were held to be entitled for not only grant of pay scale of graduate trained teacher but also eligible for promotion on the post of Headmaster. Thus, on the basis of the judgment of this Court in the case of Kumar Kant Choudhary (supra) as also letter of the Director, Secondary Education, dated 9 24.11.1986 it has been contended that the impugned order dated 24.12.2006, as contained in Annexure 5, debarring physical trained teachers from being promoted on the post of Headmaster is bad both on fact and in law. In this regard a reference has also been made to an order of the Addl. Secretary of the Education Department dated 17.3.1983 addressed to the Director, Secondary Education that such of the physically trained teachers who also possess the qualification of Diploma in Education/ Bachelor of Education would be eligible for appointment/ promotion on the post of Assistant Headmaster/ Headmaster in a Nationalized High School and their seniority could be also reckoned alongwith general teachers of the secondary school. 9. It has to be noted that subsequently by filing I.A.No. 398/2009, during the pendency of this writ application the petitioners had sought stay of an order passed by the Regional Deputy Director of Education, Tirhut Division, Muzazffarpur, contained in his letter no. 1084 dated 27.10.2008, whereby and whereunder the District Education Officer, Vaishali was restrained from making Ramnath Singh, a physical trained teacher (PTI) in continuing him as an Acting Headmaster of High School, Pighara and instructions were issued to make a general teacher of the school as its Incharge Headmaster. In the said I.A.No. 398/2009 10 this Court had passed an interim order directing the respondents that if the petitioners are working as an Assistant Headmaster, they shall not be disturbed from the post simply on the ground that they are having qualification of being a physical trained teacher. 10. There is no counter affidavit in this case and in absence thereof learned counsel for the State has adopted the counter affidavits filed in the batch of the other writ petitions being heard together. C.W.J.C.No. 13044/2008 11. In this writ application the sole petitioner Gopal Prasad Singh has sought quashing of the order dated 7.7.2008 whereby and whereunder the Director, Secondary Education in the matter of making arrangement of Incharge Headmaster in absence of regular Headmaster in Nationalized Secondary Schools had directed all the Regional Deputy Director of Education of this State to not include the names of such physically trained teachers in the gradation list of graduate trained teachers for their promotion on the post of Headmaster and also not allow continuance of any such physical trained teacher to work as Incharge Headmaster of the High Schools. According to the petitioner, this order was in teeth of the earlier order of the Director, Secondary Education dated 24.11.1986, whereby and 11 whereunder following the judgment of this Court in Kumar Kant Choudhary (supra) it was held that even physically trained teachers would be eligible for being considered for appointment/ promotion on the post of Headmaster. The petitioner has also stated that he is not only Postgraduate but also holds a qualification of Diploma in Education and in fact was functioning as the Incharge Headmaster. He has also filed I.A.No. 5327/2008 seeking stay of the impugned order dated 7.7.2008. 12. In this case a counter affidavit has been filed by the respondents in which they have taken the stand that the petitioners are physical trained teachers in the nationalized secondary schools and since they do not possess the prescribed qualification of Bachelor of Education or other qualification as prescribed in Rule 4 of Service Condition Rules, 1983, they are ineligible for promotion on the post of Headmaster of a takeover secondary school. According to the respondents the impugned order dated 7.7.2008 is only a consequential order based on the decision of the State Government contained in letter no. 1628 dated 19.3.2008 laying down those of the teachers possessing qualification of Acharya or Fazil or physical training who have not undergone and successfully completed teachers training course leading to degree or diploma in Education, namely, B.Ed. or Dip-in-Ed. should 12 neither be placed in the seniority of graduate trained teachers nor should be assigned the work of In-charge Headmaster. C.W.J.C.No. 10940/2009 13. In this case the sole petitioner Krishandeo Pandey working as Incharge Headmaster in High School, Akbarpur has prayed for quashing of Memo No. 468 dated 9.7.2009 passed and issued by the Regional Deputy Director of Education, Magadh Division, Gaya, whereby and whereunder he had recalled his earlier order dated 30.6.2009 authorizing the petitioner to work as Incharge Headmaster of High School, Akbarpur in view of the order of the Director, Secondary Education dated 7.7.2008. According to the petitioner, he was the senior most teacher in the school and as such, he was entitled to work as an Incharge Headmaster, especially when the issue stands settled in the Division Bench Judgment of Kumar Kant Choudhary (supra). 14. In this case also there is no separate counter affidavit and the learned counsel for the State has adopted the counter affidavit filed in C.W.J.C.No. 13044/2008. C.W.J.C.No. 14818/2009 15. In this writ application the three petitioners have sought quashing of the order dated 5.10.2009 passed and issued under the signature of the Principal Secretary of the Department of 13 Human Resources, whereby and whereunder a direction has been given to remove the names of physically trained teachers from the divisional seniority list and prepare a fresh gradation list of the general teachers having qualification of teachers training in education excluding the name of physically trained teachers. A consequential direction has also been sought that the names of the petitioners should not be excluded from the divisional seniority list of general teachers and they should be given all the benefits alike a general teacher of a High School and the respondents should be restrained from taking any coercive steps against such physically trained teachers who are functioning as Incharge Headmaster by virtue of their seniority as shown in 1983 and 1986 combined gradation list. 16. In this case an interim order has been passed on 11.2.2010 staying operation of the impugned order. 17. Subsequently I.A.No. 1992/2010 has been filed on behalf of 26 persons, namely, Nawal Kumar, Ram Kishore Mahto, Vijay Kumar Sharma, Anil Kumar, Kaushal Kishore, Ugra Nath Jha, Lakshmikant Shahi, Ram Sudhar Singh, Sachida Singh, Braj Kishore Pandey, Arumendra Prasad, Arun Kumar, Ram Krishna Prasad Yadav, Umesh Kumar Singh, Harindra Choudhary, Shanta Kumari, Shashi Shekhar Prasad Singh, Arun Kumar Pandey, Shiv 14 Shankar Prasad, Upendra Tiwari, Birendra Kumar Sinha, Umeshwar Singh, Ram Krishna Prasad Singh, Kashi Nath Tripathi @ Kashi Prasad Tripathi, Vidyanand Sinha and Shiv Shankar Mahto, for their being also added as a party to this writ application on the ground that their grievance is similar to the grievance of the writ petitioners of this case and they may also be directly affected by the outcome of the present writ application. 18. Though the Patna High Court Rules under Chapter XXIC does not envisage joining of any person as a petitioner and such a person can only be added as a respondent to the writ application for the purposes of opposing the prayer made in the writ application but then keeping in view that this Court has allowed similar prayer in the first writ application, C.W.J.C.No. 15869/2007, their prayer for being added as the petitioner is also allowed but it is made clear that they too now would be bound by the result of this writ application and they will also have no liberty to raise this issue in a separate proceeding. 19. In this case a counter affidavit has been filed wherein also it has been stated that the petitioners are physical trained teachers who do not possess the requisite qualification for the post of Headmaster as prescribed in Seva Sarta Niyamawali, 1983. It has also been clarified that as the physical trained teachers 15 do not possess the prescribed qualification for promotion on the post of Headmaster and as such, they can also not be assigned the duty of Incharge/ Acting Headmaster. In this regard reliance has been placed on the letter of the Director, Secondary Education dated 7.7.2008 as also to the earlier order of the State Government dated 17.3.1983 clarifying that only such physical trained teachers having qualification of Degree or Diploma in Education (B.Ed.) or (Dip.-in-Ed.) would be entitled for being considered for the purposes of appointment/ promotion to the post of Headmaster as also for reckoning of their seniority as per the provisions of the Rules of seniority with other general teachers. As with regard to the letter of the Director, Secondary Education dated 24.11.1986 it has been stated that the same was only by way of clarification that the physical trained teachers and the teachers having Acharya and Fazil would be entitled for benefit of selection grade scale but the same in no way can be read also for the purposes of appointment and promotion to the post of Headmaster, inasmuch as that would be contrary to the statutory Rules. 20. Defending the impugned order dated 7.7.2008 the deponent of the counter affidavit has stated that the same has been issued by way of clarification that only teachers possessing qualification of Acharya, Fazil and physical training who do not 16 have the qualification the post of a general teacher of High School could not be treated as a graduate trained teacher and thus they cannot be placed in divisional seniority list of general teachers of the High School. It has also been explained that since the physical trained teachers are not holding qualification made for the post of Headmaster they are also ineligible for becoming Incharge Headmaster. The necessity of drawing a fresh seniority list after excluding such teachers holding qualification of Acharya, Fazil or physical training in the High Schools has also been explained in the light of statutory 1983 Service Condition Rules. In this regard reliance has been placed on a judgment of this Court dated 24.6.1995 in C.W.J.C.No. 6947/1994 and C.W.J.C.No. 4603/1994 wherein it was held that the qualification of a physical trained teacher cannot be equated with the qualification of a teacher having a Diploma and/or Degree in Education granted upon completion of Teachers training course and as such, they would not be entitled for the same benefit as was admissible and being extended to the general teachers of secondary schools having teachers training qualification in Education. C.W.J.C.No. 15540/2009 21. In this case the sole petitioner Siyaram Kumar has assailed an order dated 5.10.2009 disposing of an appeal of one 17 Ramashankar Singh, Assistant Teacher of Nationalized High School, Kahar (Arwal), Jehanabad who had assailed the order of the Director, Secondary Education dated 24.4.2009 as with regard to grant of seniority to one Janardan Singh, a physical trained teacher, wherein it was held that the physically trained teacher would not be treated to be a general teacher of the High School till they acquire the qualification of teachers training in Education and the order dated 7.7.2009 passed by Principal Secretary has been reiterated that the physical trained teachers have not to be included in the seniority list of general teachers of the High School nor they have to be made Incharge Headmaster. Though the petitioner is not a party in the aforesaid appeal disposed of by the Principal Secretary by his order dated 7.7.2009 but in view of some general observations made as with regard to physical trained teacher he has assailed the said order and has sought consequential relief of including his name in the seniority list of Selection Grade Teachers