IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.153 of 2005 RAM NARESH THAKUR Versus THE STATE O BIHAR & ORS ----------- 6 13.8.2008 Heard. In this writ application, the petitioner has made a prayer for giving him a retrospective promotion on the post of Headmaster in a middle school with effect from 24.6.1984 with a consequential prayer that he should be paid the salary of the promotional post with arrears as also interest thereon till the date of his retirement i.e. 31.1.2001 and thereafter also re-fix his pension on the basis of such revised salary. Counsel for the petitioner has submitted that the petitioner was appointed as an Assistant Teacher in the year 1962 in a privately managed school and his qualification was only matriculation. Subsequently, when the school was taken over and made a Government School in terms of Bihar Non-Government Elementary School (Taking over of Control) Act, 1976 with effect from 1.1.1971, he had by then improved his qualification by becoming Graduate in the year 1967. It is the case of the petitioner that he had been given Intermediate Trained Pay-scale but his promotion on the post of Headmaster in the Graduate Trained Scale of Pay was not considered and persons juniors to him including Ram Kishore Jha, Digambar Jha and Nanda Kishore Sinha were promoted in the year 1976. It is claimed that in such circumstances, the petitioner had moved this Court in CWJC No. 2 87 of 1979 which was disposed of by an order dated 27.8.1979 directing the respondents to consider his case for promotion by disposing of his representation within two months from the date of receipt of the order against any existing vacancy without disturbing the promotion of aforesaid three persons who were already promoted in 1976. The petitioner has stated that the said order having been not complied by the respondent, he had filed a contempt application in which the rule of contempt had been discharged on a plea of the respondent, opposite parties that in compliance of the order of this Court the representation of the petitioner had been disposed of by holding that the existing vacancies were already filled up by giving promotion of 34 Teachers and the petitioner’s position being 39 in the seniority list, he was to be given promotion against future vacancies. At that stage, even though the petitioner had sought to assail the decision taken on his representation but this Court in the order dated 13.2.1984 in MJC No. 190 of 1980 had observed that such grievance of the petitioner could be examined only in a fresh writ application. The petitioner himself claims that subsequently by order dated 14.6.1984, he was also given promotion in the B.A. Trained Scale of Pay and therefore Chapter-1 of his grievance of promotion admittedly came to an end in the year 1984. From the pleadings on record, it is manifest that after the petitioner had been given promotion in keeping with the observation made in the order of this Court dated 27th August, 3 1979 in CWJC No. 87 of 1979, he had still insisted for his promotion on the post of Headmaster on the same ground that three of his juniors were given such promotion in the year 1976 and as such, he to ought to have been given promotion on the post of Headmaster. Such grievance however according to him remained un-redressed till the date of his retirement and therefore, the present writ application was filed after more than four years of his retirement seeking promotion on the post of Headmaster with effect from 24.6.1984. Counter affidavit has been filed on behalf of the respondent no.5, the Chief Superintendent of Education, Muzaffarpur in which it has been stated that the name of the petitioner appeared at serial no. 76 of the seniority list prepared in the year 1988 and since promotion were given on the post of Headmaster only up to the serial no. 70 of the seniority list with effect from 20.5.1988 the claim of the petitioner for his promotion on the post of Headmaster was not tenable up to the year 1993 and from 1993 onwards, the petitioner could not have claimed promotion as in 1993 Rule such promotion on the post of Headmaster was to be given only to a person having a Postgraduate degree. In the rejoinder affidavit filed by the petitioner, he has taken plea that he ought to have been given such promotion on the post of Headmaster with effect from 14.6.1984 inasmuch as even on that date, admittedly three persons juniors to him had been 4 given promotion on the post of Headmaster in the year 1976. He has also tried to explain that the new gradation list of the year 1988 could not have worked to his detriment because admittedly in the earlier gradation list, his name was at serial no. 39 as against which 34 persons were already promoted and as such, he ought to have been given promotion on the post of Headmaster on the basis of his seniority in the earlier gradation list. The petitioner has also in the rejoinder affidavit tried to make out same case of discrimination by citing example of Ram Kishore Jha, Dighamber Jha and Nand Kishore Sinha all of whom according to him were junior to him and yet were promoted on the post of Headmaster way back in the year 1976. On the basis of the aforementioned pleadings, the first and foremost question which arises for determination is as to whether in the year 2005, the petitioner can be allowed to wreck up his claim for retrospective promotion with effect from 24.6.1964. By now, it is well settled that though there is no period of limitation fixed for filing of a writ application but then if the filing of such writ application is inordinately delayed for no justifiable reasons, the writ court would dismiss the writ application on the ground of delay itself. In the present case, barring an averment that his representation for being promotion on the post of Headmaster had remained pending since 1984, there is nothing on record to show that in a period of 21 years, the petitioner had made any sincere effort for agitating his claim 5 specially till the date he had retired i.e. on 31.01.2001. It is true that delay by itself would not defeat a cause in a writ application but when such delay would percolate by changing the whole scenario inasmuch as promotion will have to be given to him against an unsanctioned post with retrospective effect by displacing someone else, such relief of retrospective promotion cannot be granted. This writ application therefore is fit to be dismissed on the ground of delay alone because there is nothing to show that after the petitioner was given promotion on the B.A. Trained Scale of Pay by an order dated 14.6.1984 in compliance of the order of the High Court dated 27th August, 1979 without disturbing the promotion of the three persons namely Ram Kishore Jha, Dighamber Jha and Nand Kishore Sinha who were made respondent nos. 3, 4 & 5 in CWJC No. 87 of 1979 filed by the petitioner, there is any fresh materials to reopen the same chapter inasmuch as the issue between him and the aforementioned three persons came to be closed in view of the judgment of this Court dated 27th August, 1979. It has to be remembered that as a matter of fact the petitioner was also given promotion in the B.A. Trained Scale of Pay with effect from 14.6.1984 which was never challenged by him to be bad in any respect till the date of his retirement. The petitioner thus having availed the promotion given to him in the B.A. Trained Scale of Pay on 14.6.1984 and thereafter happily retiring in January, 2001, now after a gap of 21 years of the cause of action, cannot be 6 allowed to re-agitate the same issue in a garb of a claim that he ought to have been not promoted in B.A. Trained Scale of Pay rather on a post of Headmaster. That apart, this Court would not find any reason for granting retrospective promotion on the post of Headmaster because the pay-scale of Headmaster and B.A. Trained Scale was same till the 4th Pay Revision Committee when in the year 1989 w.e.f. 1986, the pay scale of Graduate Trained Scale Teacher became 850-1360/- whereas the pay scale of the Headmaster was fixed at Rs. 880-1510/-. It is thus, clear that in the year 1964, the grievance of the petitioner in fact was fully redressed as with regard to his promotional post as would appear from a bare perusal of the judgment dated 27th August, 1979. It has to be kept in mind that this Court had in the said judgment had refused to grant retrospective promotion to the petitioner and had directed to consider his promotion to be given on existing vacancies. That having been done in the year 1984 by giving him the B.A. Trained Scale of Pay, the petitioner after a gap of 21 years, cannot claim promotion by re-agitating the same matter as this Court had specifically rejected his such claim for retrospective promotion. There is yet another aspect which would disentitle the petitioner from claiming promotion on the post of Headmaster inasmuch as the petitioner cannot claim promotion as a matter of right and when the respondents have taken a clear stand that after the year 1988, when a gradation list was drawn and it was found 7 that the persons above mentioned up to serial no. 70 were only given such promotion on the post of Headmaster whereas the petitioner placed at serial no. 78 of that gradation list could not be given promotion due to want of sanctioned vacant post of Headmaster. The grievance of the petitioner that he ought to have been given promotion with retrospective effect i.e. 13.6.1984 can also be not countenanced in law when admittedly no person junior to him were given such promotion in 1988. Thus, on this score as well, the claim petitioner of his being promoted with retrospective effect must be rejected. If the grievance of the petitioner is examined in the light of the settled law of service jurisprudence, a question would arise as to whether the petitioner can be given promotion with retrospective effect with financial benefit against a post which was not vacant and for which there was no budgetary allocation. This Court, in fact, having examined the case of the petitioner for retrospective promotion in the first round of litigation in the writ application filed by the petitioner in the year 1979 and upon rejecting his plea of discrimination against the three persons named above, cannot now allow that very claim of retrospective promotion specially when there is no pleading much less denial to the stand of the respondents that no junior to the petitioner barring the aforementioned three persons were promoted on the post of Headmaster. On the other hand, there is a clear averment that only seniors to the petitioners were given promotion on the post of 8 Headmaster in the year 1888 and the petitioner could not be given such promotion till the year 1993 on the post of Headmaster for want of vacancy and after the year 1993, the petitioner could not be promoted as he had not the requisite qualification. This additional reason, therefore, denying the retrospective promotion of the petitioner, cannot be faulted in law and in any event, this Court cannot issue a direction for retrospective promotion of the petitioner which if allowed, may now reopen a series of similar claim of retrospective promotion by other teachers including serial no. 71 to 77 who are admitted senior to the petitioner in the gradation list of the year 1988 and would also claim for being given such promotion on the post of Headmaster w.e.f. an earlier date or the same date as is being claimed by the petitioner. This Court, thus is satisfied that the claim of the petitioner for his retrospective promotion cannot be entertained after 21 years of the cause of action. This Court infact having gone into such belated claim of the petitioner even otherwise does not find any merit in the same. Consequently, this Court finds no substance in this writ application and the same is hereby accordingly dismissed. There would be however no order as to costs. Rsh (Mihir Kumar Jha, J.)