IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1732 of 2003 RAMDEO RAI, S/o Late Ishwar Rai, R/o Village- Mahua, P.S.- Mahua, District- Vaishali. Versus 1. THE STATE OF BIHAR 2. The Director, Primary Education, Bihar, Patna. 3. District Superintendent of Education, Vaishali. 4. The District Education Establishment Committee, through its Secretary, the District Superintendent of Education, Vaishali. For the petitioner : Mr. Purnendu Singh, Advocate. Mr. Rakesh Kumar, Sharma, Advocate. For the Respondents : J.C to S.C.1 ----------- 4. 26-07-2010 Heard learned counsel for the petitioner and the learned counsel for the State. The prayer of the petitioner in this writ application reads as follows: “1. (i) To fix the pension of the petitioner on the basis of graduate trained primary school teacher scale as has been taken in the case of similarly situated persons and the persons junior to the petitioner. (ii) For giving all subsequential benefits and difference of salary with effect from 1981 on the basis of the scale of graduate trained teacher along with penal interest as admissible in law. (iii) For the issuance of necessary writ/order/direction to the respondent no. 2 for expeditiously giving benefit of pension etc in accordance with the letter no. 2012 dated 26.11.2001 issued by him. (iv) For commanding the respondents not to withhold the pensionary benefits on the basis of graduate trained primary school teachers scale as also on the basis of the revised pay scale admissible to the petitioner. (v) For commanding the respondents to implement the government decision in order to give benefit of the revised pay scale admissible to the graduate trained teacher as in the case of the petitioner without any hindrance.” As with regard to the aforementioned prayer, counsel for 2 the petitioner would submit that initially the petitioner and one Chaturbhuj Prasad Singh had filed another writ petitioner being CWJC No. 7056/1988 for the same relief, but after dismissal of the writ application vide order dated 10.05.1994, the aforesaid Chaturbhuj Prasad Singh was given Graduate Trained Pay Scale and consequently all the pensionary benefits in the said pay scale, but the similar promotion was not given to the petitioner. He would also submit that there are at least two persons mentioned in paragraph- 26 of the writ application, namely Vijay Kumar Sinha and Sitaram Singh, who despite being much juniors to the petitioner, were given Graduate Trained Scale pay and consequently the retirement benefits in the promotional pay scale. Learned counsel for the State however would rely on the statement made in paragraph 16 of the counter affidavit which reads as follows: “16. That, so far as the statements made in paragraph no. 24 and 28 is concerned, in that respect it is stated that since the petitioner was no granted even intermediate trained scale, it is simply not possible to consider his case for graduate trained scale. It may be noted that this writ petition has been filed for granting the petitioner the graduate trained scale. Intermediate trained scale cannot be granted to the petitioner because all the vacancies in this scale were filled up by the teachers who got the matric trained scale and passed intermediate by the year 1967. The petitioner passed the intermediate in the year 1971 and at that time there were no vacancies in the intermediate trained scale. Since, the petitioner could not be given the intermediate trained scale, there is no question of granting him graduate trained scale. Moreover, the so called recommendation made by the then District Superintendent of Education, Vaishali vide letter no. 228 dated 7.6.2001 was made before Departmental Letter No. 1479 dated 21.08.2001 came into effect. Before this letter a 3 matric trained scale getting teacher was equal to the intermediate trained teacher. And so since the petitioner was a matric trained teacher, the effect of letter no. 228 dated 7.6.2001 was nullified by the letter no. 1479 dated 21.08.2001.” Thus, there was no case for the petitioner for being granted graduate trained pay scale inasmuch as he was never granted intermediate trained teacher scale of pay. It would be however difficult for this court to accept the said plea of the State for permanent denial of promotion of the petitioner in B.A. Trained Scale inasmuch as after 1993 the I.A. Trained Pay Scale did not remain in existence and therefore, even if the petitioner might not have been given the promotion in I.A. Trained Scale, he was still required to be considered for his being granted graduate trained Pay Scale. The fact that Chaturbhuj Prasad Singh was granted graduate trained pay scale in view of the order dated 10.05.1994 of this court in C.W.J.C. No. 7056 of 88 and the petitioner being the other petitioner of the same writ petition was left out also, does not stand to reason. That apart the petitioner’s plea that juniors to him were given graduate trained basic scale as asserted in para 26 of the writ petition, has not been replied by the respondents. Thus the petitioner has made out a case for a direction from this court to the Respondents for considering the case of the petitioner for promotion in the graduate trained scale on the ground that juniors to the petitioner were given such promotion. This court would also find that the Director, Primary Education, Bihar, Patna (Respondent no. 2) in his letter dated 26-11- 2000 had directed the District Superintendent of Education, Vaishali to 4 place the case of the petitioner in the meeting of the District Education Establishment Committee, but there is also no answer to this aspect in the counter affidavit as to whether the said order of the Director, Primary Education, Bihar, Patna was ever complied. This court therefore, would direct the District Superintendent of Education, Vaishali to place the matter relating to the promotion of the petitioner in Graduate Trained Scale before the District Education Establishment Committee and in the event if it is found that any junior to the petitioner was given such promotion, which ha snot been disturbed/cancelled till date, the date of promotion of the petitioner in the B.A. Trained Scale of pay will also be the same as was given to his junior. In order to expedite the matter, the petitioner is given liberty to file a fresh representation with all connected documents as also a copy of this order, whereafter the District Superintendent of Education, Vaishali with his comments, will place the matter before the District Education Establishment Committee and the Committee must take a decision lights of finding recorded above, within a period of six months from the date of receipt of this order. With the aforementioned observations and directions, this application is disposed of. Sujit (Mihir Kumar Jha, J.)