IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5503 of 1997 Vishnudeo Labh, Son of late Chhedi Labh, Resident of Village Hardwar, P.S. Ghanshyampur, District Darbhanga. ----------- Petitioner Versus 1. The State of Bihar. 2. Commissioner-cum-Secretary, Secondary Primary and Adult Education Department, New Secretariat, Patna. 3. The Director, Primary Education, Government of Bihar, New Secretariat, Patna. 4. The District Superintendent of Education, Darbhanga. 5. Block Education Extension Officer, Ghanshyampur, Darbhanga. 6. Area Education Officer, Biraul, P.S. Ghanshyampur, Darbhanga. 7. Headmaster, Nationalized Middle School, ghanshyampur, Darbhanga. ------------ Respondents ----------- For the Petitioner : Mr. Durga Nand Jha, Advocate For the State : G.P.-V. ---------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (15/07/2010) Mihir Kumar Jha, J. Heard Mr. Durga Nand Jha, learned counsel for the petitioner and counsel for the State. 2. The prayer of the petitioner in this writ application reads as follows:- “1(i) Issuance of a writ in the nature of Mandamus and/or any appropriate writ, order or direction directing and commanding the respondents to consider the case of petitioner for promotion to pay scale of senior selection grade in the pay scale of Rs. 1600-2900 with effect from 1.4.1984, the date on which the petitioner completed Kalawadhi for such next higher promotion. 2 (ii) Issuance of appropriate direction to respondents to promote the petitioner taking into consideration that the petitioner was allowed Junior Selection Grade w.e.f. 1/4/1981 and Kalawadhi for next promotion is 3 years. (iii) Issuance of appropriate direction directing the respondents at least to grant second time bound promotion to petitioner to which petitioner became eligible w.e.f. 1/8/1985, the date on which the petitioner completed 25 years of his service. (iv) Issuance of appropriate direction to respondents to prove the petitioner the consequential benefits including the revised pension and gratuity including the revised pension and gratuity on the basis of such promotion and there by to pay the petitioner his legal dues in respect of arrears of difference of salary and pension along with adequate amount of interest @ 15% per cent per annum.” 3. The aforementioned prayers, however, by the petitioner, were sought to be still restricted by the learned counsel for the petitioner by seeking a direction from this Court for considering the grant of second Time Bound Promotion to the petitioner with effect from 1.8.1985 in the event the 3 petitioner was not given the Senior Selection Grade with effect from 1.4.1984. Mr. Jha, in fact, has also submitted that in either case, the petitioner will also be entitled to re- fixation of his pensionary benefit on the basis of revision of his pay in the pay-scale of Senior Selection Grade or the second Time Bound Promotion. 4. Mr. Jha has in this context expanded his submission by explaining that though the petitioner was appointed in 1960 in a private school receiving financial aid from the State Government against a post of teacher sanctioned and funded by the State Government under the head of Educational Improvement Program Scheme (EIP Scheme), the petitioner will be deemed to be a Government servant and thus also entitled for grant of Junior Selection Grade and Time Bound Promotion alike a Government servant irrespective of the fact that the school, in question, was taken over only with effect from 1.1.1971. In this respect reliance has also been placed by Mr. Jha on the appointment letter of the petitioner issued by the District Superintendent of Education, 4 Darbhanga. 5. He has also submitted that since the petitioner was granted Junior Selection Grade by memo no. 6805-7868 dated 9th August, 1985 with effect from 1.4.1981 and as the petitioner continued in service up to the year 31.12.1993 and was given no further promotion, he would also be entitled for Second Time Bound Promotion w.e.f. 1.4.1985 by counting his service from 1.8.1960. He, in this context, has also submitted that it is well settled in law that whenever a school or institution is taken over, an employee becomes entitled to count his service from the date he got appointed to such school or institution and therefore, the petitioner’s service for all purposes including grant of Junior Selection Grade or Time Bound Promotion has to be counted with effect from 1.8.1960 and not from 1.1.1971. 6. Counsel for the state, on the other hand, has questioned the maintainability of the writ application on the ground of delay. He would submit that either cause of action for Senior Selection Grade or Time Bound Promotion as per the 5 averments made in the writ application had accrued to the petitioner on 1.4.1984 or 1.8.1985 but the petitioner having slept over his right for nearly twelve years and in fact having filed his writ petition in April 1997 well after retirement of his service in December 1993 cannot be allowed to reopen the whole thing specially when his entire retirement benefit has also been settled on the last pay drawn by him on 31.12.1993. 7. He has also explained that in terms of Section 3 & 4 of the Bihar Non- Government Elementary Schools (Taking Over of Control) Act, 1976 (hereinafter to be referred to as ‘the Act’), the service of a teacher on being taken over in terms of Section 4(2) of the Act could be counted only from the date of taken over in keeping with the spirit of Section 3 of the Act. He has also emphasized on the aspect that merely because the school of the petitioner was an aided recognized school before its inception and till its takeover by the Government w.e.f. 1.1.1971 that would not confer the petitioner a status of a Government servant w.e.f. from the first date of appointment 6 i.e. 1.8.1960. 8. Disputing the claim of the petitioner with regard to grant of Junior Selection Grade, the counsel for the State has pointed out with the help of the counter affidavit that the petitioner was never granted such Junior Selection Grade rather he was given only first Time Bound Promotion w.e.f. 1.4.1981 counting 10 years service from 1.1.1971, the date of take over of the school. He in this context has also relied on the government resolution to submit that his second time bound promotion could have admissible w.e.f. 1.1.1996 only on completion of 25 years service as a government servant but as he had already retired on 31.12.1993 he would not be entitled for grant of second time bound promotion. 9. Mr. Jha, counsel for the petitioner in reply has only reiterated his earlier aforenoted submissions with only addition that there was no delay on the part of the petitioner in moving this Court, inasmuch as, his case for consideration of second time bound promotion was pending before the authorities till he was in service 7 and thus after his retirement on 31.12.1993 if he had filed this writ application on 24.6.1997 that by itself would explain the delay. 10. In the opinion of this Court, there is unexplained delay of more than twelve years in filing of this writ application. The cause of action for the petitioner for either grant of Junior Selection Grade or 2nd time bound promotion on his own showing arose in the year 1984 or 1985 respectively and since the petitioner had been given first time bound promotion on 9.8.1985 w.e.f. 1.4.1981 in terms of the Government Resolution dated 30.12.1981 which also provides for grant of such time bound promotion, he had to raise this issue sometime in 1985 itself. His only explanation that he was awaiting consideration on his representation for a period over twelve years has been only noted for its being rejected. 11. In fact, the petitioner has really approached this Court after gross delay of at least 12-14 years of cause of action and that too after he had retired from service on 31.12.1993 and had received all 8 his retirement benefit on his last pay drawn. The petitioner had filed this writ application after more than three years of his retirement, on 24.6.1997 for claiming a monetary benefit which become due to even from the year 1984-85. There is no explanation in the writ application for such inordinate delay and therefore, this writ application is fit to be dismissed on account of delay and laches but as this writ application has been admitted for final hearing which has been taken up in 2010 this Court must consider the case of the petitioner on merit because the issues raised by Mr. Jha have some interesting aspect which need to be answered. 12. On merit also, there seems to be a lot of misconception in the mind of the petitioner with regard to grant of Selection Grade and Time Bound Promotion. The two are not interchangeable terms under Service jurisprudence as would be manifest also from of the recommendation and the decision of the Government of Bihar in paragraphs 10 and 11 of the Resolution dated 30.12.1981 (Annexure- 5) which is quoted hereinbelow:- “10. The general recommendations of the 9 Fourth Pay Revision Committee in respect of Selection Grade are as follows:- (i) Selection Grade should be provided in all services, cadres and posts. (ii) There should be normally two levels of Selection Grade for all cadres and posts to be known as the Junior Selection Grade and the Senior Selection Grade. For the State services, the Committee have recommended continuance of two Selection Grade to be known as the Junior selection Grade and the Senior Selection Grade, and a Supertime scale, existing at present. (iii) The Junior Selection Grade should consist of 20 percent of the total cadre and the Senior Selection Grade, 10% of the total cadre. The actual number should be determined for particular cadres taking into account the normal promotion prospects already existing for the cadre so that the first and second levels of promotion inclusive of the Selection Grade remains at least 20 percent and 10 percent respectively. In case of the State Services, however, the percentage of junior and senior selection 10 grade should be 20 percent and 12.5 percent respectively, and for the suppertime scale, 2.5 percent. (iv) Promotions to the Selection Grade should, of course, be subject to the condition that the employee is otherwise fit for the same. The above recommendations have been accepted by the Government subject to the condition that the qualifying service for promotion to any Junior Selection Grade shall be five years unless different criteria are already in existence for any specific selection grade. The concerned Administrative Department will have to issue specific orders in consultation with the Department of Finance regarding the selection grade scales and percentages for each service/cadre. The Selection Grade posts will not be in addition to the existing sanctioned strength in the cadre but will be created by conversion of the existing sanctioned posts in the cadre. The number of Selection Grade posts will be worked out on the basis of the number of posts sanctioned in the cadre as on 1st April, 1981, whether on permanent or on temporary basis. The Selection Grade posts to be sanctioned by conversion of the existing permanent/temporary posts in the cadre will be either on permanent or on temporary basis according to as the posts in respect of which Selection 11 Grade posts are provided are permanent or temporary. The actual number of Selection Grade posts available in a cadre will be revised annually on the basis of the sanctioned strength of the cadre as on 1st April every year, the first such review being due on 1st April 1982. Until such time the Administrative Departments are able to create different levels of Selection Grade posts in accordance with the above decision, Government have decided that the existing Selection Grade will continue. Where the revised scale for any existing Selection Grade has not been indicated in Schedule II, the revised scale for that existing selection in grade will be the revised scale next above the corresponding basic revised scale. Where, however, two selection grades exist at present, and the revised scales for the existing Junior/Senior selection grades have not been indicated in Schedule II, the revised scale for the existing Junior Selection Grade will be the revised scale next above the corresponding basic revised scale while the revised scale for the existing Senior Selection Grade will be the revised scale next above the revised scale for the Junior Selection Grade. 11. With regard to time-bound promotion, the Fourth Pay Revision Committee have made the following recommendations:- (i) Personnel management should envisage providing at least two promotions to each and 12 every employee in Government service, the first by the end of ten years of service and the second by the end of 25 years of service. (ii) 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. (iii) 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. (iv) The aforesaid facilities should be extended to all employees whether they belong to any formally constituted service or cadre, or not and 13 including employees holding isolated posts. In their case, the pay scale immediately higher than the pay scale prescribed for the basic post should be considered as the pay scale for the junior selection grade, and the pay scale immediately higher to that of the aforesaid junior selection grade should be deemed to be the pay scale for the senior selection grade. (v) The aforesaid scheme of time bound promotion will not be applicable to services, cadres and posts of which the maximum of the pay scale of the basic grade exceeds Rs. 2,000. (vi) The other conditions, the rules and procedures meant for usual promotion should be followed in case of the aforesaid time bound system also. (vii) Since the aforesaid scheme is meant as an anti-stagnation measure, it should be applicable in case of only such employees who have not been able to get the first or the second promotion, as the case may be. In other words, the benefit of the time-bound system should be extended to 14 those who are stagnating in the same pay scale to which they were appointed or its corresponding revised pay scale. The benefit should not be made applicable to such employee who, after once joining Government service have, for any reason been elevated to a higher pay scale, by promotion, merger or even upgradation. This should require issue of specific orders in case of every employee which should obviously be done only after a careful examination of his service record. (viii)The aforesaid scheme is obviously not intended to deny any employee earlier promotion that comes in his favour in the usual course. The above recommendations have been accepted by Government subject to the condition that the benefit of time- bound promotion over and above the selection grade quota of posts as envisaged in paragraph 10, will be allowed to eligible employees only after first exhausting the possibility of accommodating such employees against the vacancies available in the selection grade.” 13. Thus from reading of the recommendation of the Pay Revision Committee and its acceptance by the Government of Bihar 15 in the aforesaid Resolution it would be clear that whereas selection grade either junior or senior is by way of promotion against available posts the grant of Time Bound Promotion is purely an anti stagnation removal measure and is by way personal promotion irrespective of avibility of posts. Thus, a person if he earns Junior Selection Grade or Senior Selection Grade, he earns promotion, which automatically disentitles him for grant of time bound promotion in the period of ten years or 25 years. There being only two time bound promotions available to a person in his service career and that too if he has not earned regular promotion on higher posts including by way of Junior Selection Grade and Senior Selection Grade, if a person has earned two promotions in his tenure, he would not be entitled for any Time Bound Promotion and that is how, it was sought to be in fact compensated grant of two Time Bound Promotions, one at the end of ten years and another at the end of twenty-five years of service on the same post but way granting higher pay scale. 14. In this background, if the case 16 of the petitioner is examined, it is the case that he was granted Junior Selection Grade i.e. a promotion on 9.8.1985 in terms of the resolution of the Pay Revision Committee in the pay-scale of Rs. 580/- to 965/- against 20% of the strength of the cadre/strength of the post of teachers as envisaged in paragraph no.11 of the Government Resolution dated 30.12.1981 already quoted above. If the petitioner had already got his promotion in Junior Selection Grade with effect from 1.4.1981, there would be no question of grant of his second Time Bound Promotion, which would come only after twenty-five years of service because this Court would hold that the petitioner would be entitled for computing his length of service from 1.1.1971, the date of take over of his school and not from 1.8.1960 when he was appointed in a private school though receiving grant in aid from the Government inasmuch recognized aided school is not a government school nor its employees government servant. The teachers of such school are appointed by the Managing Committee and if a government functionary in capacity of Secretary of the 17 Managing Committee had issued order of appointment of the petitioner that will not make him a government servant. There cannot be infact an aided school where its teaches will be government servant and since it is admitted fact that the school was taken over w.e.f. 1.1.1971 under the Take over Act 1976 the petitioner too will be deemed to have become government servant w.e.f. 1.1.1971 and entitled to count his service for time bound promotion only w.e.f. 1.1.1971. 15. There is, however, as noted above, some sort of discrepancy in the stand of the parties, inasmuch as, the respondents have claimed that the petitioner was given only First Time Bound Promotion and not a promotion in the Junior Selection Grade w.e.f. 1.4.1981. The petitioner has done no favour to him by suppressing the order no. 6805-7868 dated 9.8.85, which he in all fairness ought to have produced to get resolved this dispute as to whether he was given a Time Bound Promotion or a Junior Selection Grade. 16. It is true that the effect of both will be the same as with regard to the 18 grant of monetary benefit, inasmuch as, the first Time Bound Promotion, the pay-scale is same as of Junior Selection Grade but then the consequences are entirely different. It is this aspect of the matter which will have to be gone into by departmental authorities if this Court would allow the claim of the petitioner with regard to counting his service as a Government Servant from 1.8.1960. In this regard, the claim of Senior Selection Grade, which is against 10% of the cadre strength of the post of Teacher, the categorical stand of the respondents is that as per the seniority, the petitioner did not qualify for grant of Senior Selection Grade within the strength of 10% as there was no vacancy against these 10% post till the date of retirement of the petitioner. The question of grant of Senior Selection Grade, being one of promotion, the seniority will have relevance and if there was no vacancy and no junior to the petitioner was ever given Senior Selection Grade, the petitioner cannot claim the same as a matter of right. 17. This Court must note the argument of Mr. Jha with regard to the 19 concept of Kalawadhi for the purpose of being considered for promotion. Kalawadhi has no relevance in the context of Time Bound Promotion. Kalawadhi prescribes only the minimum period, which a person must complete in order to become eligible for being considered for regular promotion. In the present case, only because the petitioner was allegedly granted Junior Selection Grade with effect from 1.1.1981 that would not make him entitled to be promoted in the Senior Selection Grade on 1.1.1984. Kalawadhi, as indicated above, cannot be treated to be another mode of Time Bound Promotion. It has already been held above that there was no vacancy on 10% posts of Senior Selection Grade and no one junior to the petitioner had been given promotion in Senior Selection Grade and thus nearly because he had completed Kalawadhi will not mean he had to given his promotion in Senior Selection Grade. In fact, there is no pleading in the writ application to even remotely suggest that any one junior to the petitioner was granted Senior Selection Grade and therefore, the claim of the petitioner for grant of 20 Senior Selection Grade must be and is hereby rejected. 18. Coming to the effective date which probably may turn the thing in favour of the petitioner as with regard to grant of second Time Bound Promotion, this Court must note the provisions of Section 3 & 4 of the Take Over Act for the purpose of examining the claim of the petitioner for take over of his service. Section 3 of the Act in this context reads as follows:- “3. Taking over of Non-Government Elementary schools by State Government. – (1) Elementary schools managed by the District Board, Zila Parishad, the Municipal Board, and the Patna Municipal Corporation, and those opened under the Expansion and improvement scheme shall be deemed to have been taken over by the State Government with effect from the 1st day of January, 1971. (2) Aided Elementary schools, the Managing Committees of which have handed over voluntarily the control of the school to the Government, shall be taken over by the State Government with effect from the date which shall be determined by the District Committee referred to in sub-section (4) for this purpose. 21 (3) Elementary schools administered by any public or private undertakings shall be taken over by the State Government by publication of a notification in the official gazette with effect from the date to be specified therein. (4)(a) With regard to the taking over of Elementary schools other than those mentioned in sub-sections (1) and (3) there shall be a District Committee in each District which shall examine the feasibility of taking over of such schools by the State Government and which shall consist of the following members: (i) Deputy Development Commissioner/ Administrator, District Board – Chairman. (ii) District Superintendent of Education – Secretary. Members (iii) District Education Officer, (iv) District Inspector of schools, (v) Subdivisional Education Officer of the concerned subdivision, and (vi) Deputy Inspector of schools concerned. (b) The State Government may, from time to time make changes in the personnel of the District Committees so constituted.” 19. It would, therefore, be clear that Section 3 of the Act talks of an effective date of take over of the school and prescribes a firm date of 1st January 1971 in 22 case of schools governed by Sub-Section 3(1) & (2) of the Act. In the present case, the school in question was admittedly under the Expansion and Improvement Scheme and therefore, it will be deemed to under Section 3(1) of the Act for which the effective date is 1.1.1971. The consequence of taking over has