IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10284 of 1997 BALRAM DAS son of Sri Sarjug Das, resident of village- Murli Basantpur, Police Station- Saharsa, District- Saharsa…. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary, Welfare, Govt. of Bihar, Patna. 3. Director, Welfare Department, Govt. of Bihar, Patna. 4. Deputy Director Welfare Department, Govt. of Bihar, Patna. 5. Arjun Ray, Deputy Director, Welfare, Purnea Division, Purnea. 6. Girja Nand Yadav, Assistant Teacher son of not known, Govt. Residential Schedule Tribe High School, Banmankhi, P.S. Banmankhi, District-Purnea. … Respondents ----------- 9. 05.08.2010 Heard Mrs. M. Chatterjee, learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner made in this writ petition reads as follows:- “(i) that an appropriate writ may be issued quashing the letter no. 628 dated 26.9.1997 issued under the signature of the respondent no. 4 the Deputy Director Welfare, Purnea Division, Purnea, as contained in Annexure-13, by which the Deputy Director has cancelled the promotion granted to the petitioner by the Director with effect from 2.2.1994 and also directed to take steps in accordance with law. (ii) That an appropriate writ may be issued commanding upon the respondent authority to consider the name of the petitioner for promotion with effect from the year 1985, the date the outsiders have been appointed. (iii) That an appropriate writ may be issued commanding upon the respondent authority to pay the difference of arrear of salary and other allowances payable to the petitioner after granting him promotion from the year 1985 immediately with interest.” - 2 - In support of the aforementioned prayer, Mrs. Chatterjee, learned counsel for the petitioner, has submitted that impugned order shifting the date of promotion from 2.2.1994 to 31.12.1994 is patently in violation of the court’s order dated 11.8.1992 in CWJC No. 1514 of 1991 wherein the respondents were directed to consider the case of promotion of the petitioner within a period of two months only and as such the order dated 2.2.1994 giving promotion to the petitioner after one and a half year in place of two months could not have been varied subsequently by shifting the date of promotion of the petitioner from 2.2.1994 to 31.12.1994. She has also submitted that as a matter of fact, when there was already an existent provision for direct appointment of B.Sc. Trained Teacher, the appointment of the petitioner in the matric trained scale of pay on 17.8.1984 despite being B.Sc. trained was absolutely unjustified specially when at that point of time a large number of persons including one Bibhuti Nath Jha were directly appointed on the post of B.A. trained teacher. Finally, it has been contended that when the Government had framed conditions for grant of promotion only in the month of November 1992, it ought not to have completed selection - 3 - process in respect of the advertisement published some time in the month of July 1992 for direct recruitment on account of which the petitioner working on Matric trained teacher has become junior as in the meantime direct appointments were made on the post of B. A. Trained teachers. Counsel for the State would submit that such hypothetical issue cannot be adjudicated at the behest of the petitioner inasmuch as once the petitioner had accepted his appointment on matric trained scale of pay, he had to be guided by the provisions of rules under which only his promotion could be considered against higher post. It has also been submitted that the petitioner too could have filed an application for direct appointment but then there could not be a mixture of both direct appointment and promotion in case of the petitioner. In this regard he has further clarified that circular issued by the Department with regard to laying down norms for promotion or direct appointment by fixing quota of 50 % each for both the sources was issued by the Government. The requisition to Vidyalaya Sewa Board for direct recruitment against 50% posts was in fact sent earlier and therefore the appointment made pursuant to the advertisement made by Vidyalaya Sewa - 4 - Board sometime in July 1992 could not be mixed up for the purpose of fixation of seniority inasmuch as there are two modes of appointment one by direct recruitment and another by promotion. Finally, it has also been submitted that the petitioner’s promotion order dated 2.2.1994 itself clearly contained a clause that such date of his promotion could be varied later on at the time of giving regular promotion to others and therefore when even seniors to the petitioner working in the Matric trained pay scale were given promotion w.e.f. 31.12.1994, the petitioner’s earlier promotion given on 2.2.1994 on ad hoc basis could not have been allowed to remain untouched there specially when this Court in its order dated 11.8.1992 in C.W.J.C. No. 1514 of 1991 filed by the writ petitioner had also not fixed any firm date much less of 2.2.1994 for giving promotion to the petitioner. In the opinion of this Court the plea of the petitioner that this court should direct for his promotion from 17.8.1985 because some other persons were directly appointed in the B.Sc. trained scale of pay and the petitioner despite being qualified was appointed only Matric trained scale of pay is only to be noted for its being rejected - 5 - inasmuch such prayer is not only stale but also hit by the principle of constructive resjudicata. The petitioner infact with his eyes open had accepted the terms of his appointment on the post of matric trained teacher and therefore when he joined the post of Matric trained teacher despite his being possessing qualification of B.Sc. trained, he cannot be now allowed to take a plea that others got directly appointed on the B.sc. trained scale of pay. This court is not in a position to now go into the mode of appointment of the year 1984-85 in a writ petition filed in the year 1997 which is virtually only for claiming promotion w.e.f. 2.2.1994. The petitioner has not been able to cite a single case where persons similarly appointed like him in the Matric trained scale of pay were given promotion (not direct recruitment) w.e.f. 17.8.1985. The service jurisprudence in this regard is very clear that the claim for promotion can only be sought if any one junior to the person has been given such a promotion. In that view of the matter, the claim of the petitioner for his promotion w.e.f. 17.8.1985 must be rejected specially when the same was not claimed in his earlier writ petition C.W.J.C No. 1514 of 1991.. - 6 - Coming to the next submission, shifting the date of promotion of the petitioner from 2.2.1994 to 31.12.1994, this Court had to take into consideration the order dated 11.8.1992 passed in the writ petition of the petitioner, CWJC No. 1514 of 1991. For sake of clarity, the said order is extracted hereinbelow: “ Heard the learned counsel for the petitioner and the respondent no. 6. No body appears on behalf of the State. It appears that the petitioner was appointed in terms of Annexure-1 to the writ application in the scale of pay admissible to a matric trained teacher, in the year 1984. The respondent Nos. 4, 5 and 6 were appointed in the graduate trained teacher in the year 1985. In this view of the matter, in our opinion, the petitioner cannot claim seniority over the respondents. However, Mrs. M. Chatterjee learned counsel appearing on behalf of the petitioner had drawn to our attention after the representation was filed by an eligible candidate for being promoted to the higher scale of pay in the year 1988 (after respondent nos. 4, 5 and 6 were promoted) a panel was prepared therefore after holding an interview and the same had been sent to the Director Welfare Department. Mrs. Chatterjee, has point out that the Director, Welfare has not passed any order in the aforementioned matter. In this view of the matter, we direct the concerned respondent no. 2 to pass an appropriate order in relation to the grant of higher scale of pay by way of promotion to the petitioner in accordance with law and upon considering the cases of all eligible candidates expeditiously and preferably within a period of two months from the date of the - 7 - receipt of a copy of this order. The petitioner shall file a copy of the order before the respondent no.2. This application disposed of with the aforementioned observations and directions.” From the aforementioned order, it is absolutely clear that this court had expressed no opinion even to the entitlement of the petititioner for promotion much less any specific date. In that view of the matter, the plea of the petitioner that this court’s order had to be complied within a period of two months and that was complied after one and a half year would really allow the petitioner to get seniority from the date of expiry of two months is again an argument of desperation. As a matter of fact, even when the contempt application was filed by the petitioner, MJC No. 1751/92, the same got disposed of on production of the order of promotion dated 2.2.1994 which again for sake of clarity is quoted hereinbelow; “ fcgkj ljdkj] dY;k.k foHkkxA la0u0&3@f'k0LFkk0&,&401@94&d- vkns'k ekuuh; mPp U;k;ky;] iVuk dk] ;kfpdk la[;k&lh0MCyw0ts0lh0ua0&1514@91 esa vkns'k 1- fnukad 11&8&92 ds vkyksd esa Jh cyjke nkl] lgk;d f'k{kd ^eSfV~d izf'kf{kr^ vuqlwfpr tkfr vkoklh; mPp fon~;ky;] cuea[kh iwf.kZ;k dks eSfV~d izf'kf{kr f'k{kd ds osrueku&1200&1800 :0 ls Lukrd izf'kf{kr f'k{kd ds osrueku 1500&2750 :Ik;s esa i= - 8 - fuxZr gksus dh frfFk ls vkSicaf/kd :i ls izksUufr nh tkrh gSA 2- budh izksUufr ls f'k{kdksa dh ikjLifjd ojh;rk izHkkfor ugha gksxhA 3- izksUufr lfefr tc okafNr ;ksX;rk/kkjh vU; f'k{kdksa ds ekeys ij fopkj dj mUgsa izksUufr nsus ds frfFk;ksa dk fu/kkZj.k djsxh rc budh izksUufr dh frfFk esa ifjorZu Hkh gks ldrk gSA funs'kd] dY;k.k A Kkikad --526--------------@iVuk]fnukad 2 Qjojh]94- (underlining for emphasis) From the reading of the aforementioned order it would be clear that such promotion to the petitioner was given on provisional basis and by virtue of such promotion of petitioner the inter se seniority of other teachers was not going to be affected. In fact, when the promotion order dated 2.2.1994 had itself clearly contained a clause that when the case of others eligible persons for their regular promotion would be considered the date of promotion of the petitioner could be also changed the petitioner cannot be heard to say that the impugned order shifting his date of promotion from 2.2.1994 to 31.12.1994 is either in violation of the order of this Court dated 11.8.1992 or even otherwise impressible in law. In that view of the matter, the order of ptomotion of petitioner dated 2.2.1994 Annexure-2 itself is a complete answer to the entire submission of Mr. Chatterjee with regard to shifting of the date of promotion of the petitioner - 9 - from 2.2.1994 to 31.12.1994. As a matter of fact on a perusal of the order dated 31.12.1994, it would be found that as many as 112 persons in the matric trained and I. A. Trained were promoted on the post of B. A. trained teacher. Mr. Chatterjee has not been able to point out the name of a single person in this order who upto serial no. 94, before the name of the petitioner figuring at serial no. 95 were actually junior to the petitioner. As a matter of fact, when the general promotion to others was yet to be given the competent authority had rightly reserved its right in the order dated 2.2.1994 to shift the date of provisional promotion of the petitioner and therefore if 94 teachers seniors to the petitioners in Matric trained and I. A. trained were given promotion to the post of B.A. trained on 31.12.1994 the petitioner at serial no. 95 could not have been allowed to retain earlier date of promotion dated 2.2.1994. The whole aspect in fact becomes clear when the order dated 21.11.1995 is taken into consideration whereby 112 persons given promotion along with the petitioner at Serial No. 95. The clarificatory order issued by the Deputy Director Welfare on 26.9.1997 vide Annexure-13, the impugned order becomes absolutely clear by which the promotion - 10 - given to the petitioner was only sought to be clarified in terms of the order dated 31.12.1994 inasmuch as the operative portion of such order reads as follows:- “ fcgkj ljdkj dY;k.k foHkkxA vkns’k fnukad 11-9-95 dks lEiUu gqbZ izksUufr LFkkiuk lfefr dh vuq'kalk ds vkyksd esa dY;k.k foHkkx ds vuqlwfpr tkfr ,oa vuqlwfpr tutkfr vkoklh; fo|ky;ksa esa eSfV~d rFkk vk0 ,0 ,oa izf'kf{kr f'k{kd ds in ij dk;Zjr layXu lwfp esa vafdr f'k{kdksa dks Lukrd izf'kf{kr osrueku :I;k 1500&50&2150&60&2750 esa foHkkxh; vkn'k Kki la[;k 6180 fnukad 31-12-94 ds dze esa dY;k.k foHkkx ds vkoklh; fo|ky;ksa ds fjDr f'k{kd in ij izksUufr nh tkrh gSA bUVj izf'kf{kr f'k{kd ds in ij iwoZ esa nh x;h izksUufr ds rhu lky ds ckn gh Lukrd izf'kf{kr f'k{kd ds in ij izksUufr dk vkfFkZd ykHk ns; gksxkA 2- ;g izksUufr foHkkxh; vkns'k Kkikad 618 fnukad 31-2-94 ds dze esa fuxZr dh tk jgh gSA vr% izksUufr vkns'k fnukad 31-12-94 ls gh izHkkoh gksxkA 3- izksUufr f'k{kdksa dk inLFkkiu vkns'k vyx ls fuxZr fd;k tk;sxkA v:.k dqekj flag funs'kd] dY;k.kA” Such a general order of promotion giving promotion to 112 persons having been made operative w.e.f. 31.12.1994 could not have made an exception only in the case of the petitioner and therefore this Court would not find any error even in the order shifting the date of promotion of the petitioner from 2.2.1994 to 31.12.1994. Finally, this Court would also not find any merit in that part of the submission of learned counsel for the petitioner where the concept of direct recruitment and - 11 - promotion have been sought to be mixed up by making a submission that had the Government not advertised those posts for direct recruitment and not made appointment prior to issuance of changed rules, the petitioner’s promotion could have been notified earlier and therefore those direct recruits could have become junior to the petitioner. This infact appears to be a desperate submission and must be rejected inasmuch as if the Government had made a requisition to Vidyalaya Sewa Board in the year 1992 and such process of recruitment by way of issuance of advertisement had already been issued, the subsequent change of rule prescribing a different mode of appointment could not have affected the persons being the candidates to the earlier advertisement. Moreover the case of the petitioner being not of a direct appointment, he has to remain satisfied with the fate of similarly situated persons like the petitioner who were working in the matric trained scale of pay. Once this aspect becomes clear that this Court will have no difficulty in holding that the entire writ petition is itself misconceived and is fit to be dismissed. This Court however must notice the last and pasting submissions of Mrs. Chatterrjee that in the gradation - 12 - list as Annexure-6, there are persons at serial nos. 313, 314, 315 and 316 namely, Smt. Veena Ekka, Smt. Anita Topo, Sri Naresh Pd. Singh and Sri Ganga Kumar who were appointed on the post of Matric trained on 15.11.1984, 20.11.1984, 2.2.1985 and 10.5.1985 and they were given promotion in the B. A. trained on 17.8.1985 and therefore the petitioner being senior to them will be entitled for promotion w.e.f. 17.8.1985. There are however two difficulties in accepting this submission. Firstly those four persons have not been made party to this writ petition and secondly, the plea of pre-suppositions that they are promoted in the B.A. trained is also hypothetical proposition because the gradation list with regard to Column No. V contains the combined date of either direct appointment or promotion to B.A. trained teacher. Such fallacy in the submission of Mrs. Chatterjee in fact would get further exposed from the provisions of direct appointment and not promotion from following passage of Government decision dated 23rd May, 1984. ^^4- fu;qfDr dh izfdz;k& izeaMy Lrj ij fjDr Lukrd izf'f{kr ds inksa dh funs'kky; Lrj ij rS;kj bUVjehfM;sV rFkk eSfV`zd izf'f{kr f'k{kdksa tks Lukrd mRrh.kZ gks pqdsa gS] ojh;rk lwfp ls uke ekaxdj vkj{k.k dks ns[krs gq;s Hkjk tk;sxkA loZizFke bUVjehfM;sV ds f'k{kdksa dks izksUufr nh tk;sxhA in 'ks"k jgus ij eSfV~d izf'kf{kr f'k{kd] tks Lukrd - 13 - mRrh.kZ gS dks iwoZ dh Hkkafr fo"k;okj fjDr inksa ij fu;qDr fd;k tk;sxkA bls ckn gh in fjDr jgus ij ckgjh visf{kr ;ksX;rk j[kus okys mEehnokjksa dks p;u fd;k tk;sxkA bu lHkh fu;qfDr;ksa esa vkj{k.k dks /;ku esa j[kk tk;sxkA fu;qfDr djus ds igys] dY;k.k ds Lrj ls lwfp tkap djk;h tk;sxh vkSj vuqeksfnr lwfp ds }kjk gh fu;qfDr dk vkns'k mi funs'kd] dY;k.k }kjk fuxZr fd;k tk;sxkA 5- fu;qfDr esa izeaMyh; jksLVj ykxw jgsxkA^^ Thus, it would be clear that when the gradation list was issued, the persons named at Serial No.313, 314, 315 and 316 cannot be said to be directly promoted from the matric trained pay scale to B.A. trained scale of pay. It is well possible that they were in fact direct appointee in terms of aforementioned government Circular dated 23rd May 1984. The right of the petitioner, however, would only emerge when he entered in the cadre on 17.8.1984 as a matric trained teacher and he cannot be allowed to question anything which had taken place in view of the Government decision as contained in Annexure-2 with regard to direct appointment of those matric trained teachers who were able to qualify in the selection of B. A. trained by way of direct appointment. Infact a similar argument advanced on behalf of the petitioner in his earlier writ petition, C.W.J.C. No. 1514 of 1991 wherein by an order dated 11.8.1992 (already quoted in extenso earlier) it was held as follows:- "It appears that the petitioner was appointed in terms of Annexure-1 to the writ application in the - 14 - scale of pay admissible to a matric trained teacher, in the year 1984. The respondent Nos. 4, 5 and 6 were appointed in the graduate trained teacher in the year 1985. In this view of the matter, in our opinion, the petitioner cannot claim seniority over the respondents" Thus for the reasons recorded above this Court would not find any error in the impugned order shifting the date of promotion of the petitioner and the petitioner has to remain satisfied with his date of promotion in B.A. trained scale of pay w.e.f. 31.12.1994. That being so, this writ application is wholly misconceived and is accordingly dismissed. kanchan (Mihir Kumar Jha, J.)