WP(C) 5647/2006 BEFORE THE HON’BLE MR. JUSTICE N.KOTISWAR SINGH The petitioner has approached this Court by filing the present writ petition see king a direction to the respondent authorities to grant him promotion/ up-gradat ion with effect from 19.11.1991 to the higher post of science graduate teacher w ith all consequential service benefits in terms of the notification issued by th e Govt. of Assam vide No. PC/Sec/34/91/14/29, dated Kahilipara, 19.11.1991 (Anne xure- A-5 to the writ petition). 2. The petitioner is a science graduate having passed B.Sc. in the year, 1987. He was selected by the District Level Selection Board, Nagaon and ap pointed as Assistant Teacher in Rupahi High School. Thereafter, he was posted in Barhampur S.S.I. Higher Secondary School in the year 1990 in the intermediate s cale of pay. Thereafter, he was transferred to Khatiatali High School in the sam e grade and scale of pay. 3. While the petitioner was serving as science graduate teacher as stated above, the Govt. of Assam issued a notification dated 19.11.1991 (which w e find at Annexure-5 of the writ petition) whereby 168 numbers of post of scienc e graduate teachers in the scale of pay of Rs. 1975-3375/ p.m. were allotted to the existing provincialised High/High Madrass/ Higher Secondary/ Boro medium Sch ools. As per the aforesaid notification, only one post is earmarked for each sch ool. It was also clarified in the said notification that at the time of distribution of the post of science graduate teacher in such schools, it has to be seen that the newly created posts are not allotted to those schools where there already exist three or more science graduate teachers. In other words, the allocation of additional post of science graduate teacher has to be done only i n respect of those schools where the number of science graduate teacher is less than 3 (three). It was also provided in the said notification that if there be any science graduate teacher already working in intermediate scale in the said a llotted school, preference will be given first to such teacher for appointment t o the newly allotted post of science graduate teacher. 4. It is the case of the petitioner that after the aforesaid notifi cation was issued, the authorities appointed one Shri Narayan Biswas, a new cand idate to the aforesaid post of science graduate teacher in Kathialali High Schoo l vide order dated 11.05.1992 (Annexure- 8) by ignoring the case of the present petitioner, who was already working in the said school in the intermediate scale . It is the case of the petitioner that as per the aforesaid notification since he was already working in the intermediate scale, he should have been promoted f irst to that allotted post in that school. 5. Being aggrieved by the appointment of the aforesaid Shri Narayan Biswas, the petitioner approached the concerned authorities for giving him appo intment to the higher scale post of science graduate teacher. The authorities a fter examining the case of the petitioner reviewed the order of appointment of S hri Narayan Biswas and appointed the petitioner to the upgraded post of science graduate teacher, vide order dated 28.07.1992 (Annexure-9). Before passing the a foresaid upgradation order, the aforesaid Shri Narayan Biswas who was wrongly gi ven higher scale of pay of science graduate teacher was reverted to the intermed iate scale. 6. It is the case of the petitioner that since the notification was issued on 19.11.1991 under which he was given promotion/ up gradation to the hi gher pay scale of pay, his upgradation should have been also given with effect f rom 19.11.1991 rather than w.e.f. 28.07.1992, i.e. the date of his upgradation. The petitioner having been denied the aforesaid claim of up gradation with effec t from 19.11.1991, preferred a writ petition before this Court under Civil Rule No. 3249/1998 and the Court vide judgment and order dated 04.12.2001 after heari ng the both parties disposed of the said writ petition with a direction that the petitioner shall file a representation before the Director of Secondary Educati on Assam alongwith a certified copy of the order 04.12.2001 praying for his cla im and the representation of the petitioner was to be disposed of by the authori ties concerned within a period of three months from the date of receipt of the r epresentation by a speaking order. 7. It has been stated that the petitioner filed a representation da ted 08.10.2002 to the authorities pursuant to the direction of this Court vide j udgment and order dated 04.12.2001 and the authorities issued order No. PC/CC/9/ 2006/4 dated 15.06.2006 (Annexure- 17) by which the authorities rejected the cla im of the petitioner, which has now been challenged in the present writ petition . 8. I have heard Mr. K.K. Mahanta, learned senior counsel appearing for the petitioner and Mr. A.D. Choudhury, learned Standing Counsel, Education D epartment, Govt. Assam, appearing on behalf of all the respondents. . 9. On perusal of the aforesaid notification dated 19.11.1991 by whi ch certain additional posts of science graduate teachers were allotted to the ex isting provincialised High/High Madrass/ Higher Secondary/ Boro medium Schools, it is seen that the aforesaid notification is a conditional one inasmuch as the aforesaid notification provides that the authority concerned has to first undert ake an exercise to find out the number of vacancies of science graduate teachers available in each of the schools. Upon completion of such exercise, if it is fo und that there are more than three science graduate teachers in any particular s chool, such school will not be given coverage under this notification. Thus, onl y such school, where there are less than 3 science graduate teachers, would be e ntitled to have one additional post of science graduate teacher. 10. It has been further provided in the said notification dated 19.1 1.1991 that if there be any science graduate teacher already working in the inte rmediate scale in any particular school, he should be promoted first. This right of the science graduate teacher working in the intermediate scale for upgradati on is dependent upon the findings of the appropriate authorities for allocation of the additional post of science graduate teacher to any particular school. Thu s, any science graduate teachers working in intermediate scale in any school wou ld get the promotion only upon finding by the concerned authorities as regards t he allocation of the additional post of science graduate teachers in the particu lar school. Therefore, this exercise is a condition precedent before any such cl aim for promotion is considered. The right of any such science graduate teacher already teaching to get promoted to the higher-grade post would ripen only after the authorities have examined allotment of additional post for that particular school. 11. Therefore, in my opinion, the right of any existing science grad uate teacher to be promoted first, will not mean that the promotion has to be do ne from the date of the issuance of the notification as the notification can be implemented only after the aforesaid exercise for allotment of the extra post of science graduate teacher is undertaken and completed by the authority concerned . 12. In this particular case what has been observed is that the petit ioner even though he was entitled to be given appointment on promotion to the af oresaid post of science graduate teacher with higher scale of pay was ignored by the authority and in his place another person namely Shri Narayan Biswas was gi ven appointment to the aforesaid higher grade post. The authorities, however, re alizing the mistake in ignoring the claim of the petitioner in giving such appoi ntment to Shri Narayan Biswas, rectified the mistake. The authorities thereafter appointed the petitioner to the aforesaid post by upgrading him vide order dat ed 28.07.192 by reverting the earlier incumbent Shri Narayan Biswas to the post with intermediate scale. Having undertaken this exercise, the issue before this Court is to decide as to whether the petitioner is entitled to be up-graded to t he aforesaid post with effect from 19.11.1991, as claimed by the petitioner or a ny other subsequent date. 13. As discussed above, the right of the petitioner to be appointed to the aforesaid post with higher grade pay will ripen only after completion of the exercise to determine the availability of science teacher in the particular school in terms of the aforesaid notification dated 19.11.1991. As such before t he completion of the aforesaid exercise to a particular school is completed, the petitioner could not have claimed any right to be appointed. Since, the aforesa id exercise obviously can be completed only after 19.11.1991, the question of gi ving the promotion to the petitioner w.e.f. 19.11.1991 will not arise. 14. Even though, no material is available on record as to when the a foresaid exercise was completed in respect of the present school, it can be pres umed that it was completed when the promotion was issued in favour of the said N arayan Biswas. The said Narayan Biswas was given promotion to the aforesaid pos t with higher scale vide order dated 9.3.1992. In my opinion, the petitioner wi ll be entitled to be appointed to the higher scale of pay to the post of science graduate teacher at least with effect from 09.03.1992 with all benefit conseque ntial thereto, when the said Narayan Biswas was given appointment. 15. The learned counsel for the state respondents authorities submit ted that there is no illegality, infirmity or any element or mala fide on the pa rt of the respondent authorities while passing the order dated 15.06.2006 (Annex ure- 17) issued by the Director of Secondary Education, Assam, by which retrospe ctive benefit was not given and also states that no retrospective benefit was gi ven to any other person. Accordingly, since the Govt. are bound to adhere to all the financial norms, the prayer of the petitioner could not be acceded to by th e authorities. 16. In this regard, no materials have been brought on record to show before this Court that there was any mala fide intention on the part of any aut hority while passing the impugned order. Therefore, the petitioner would be enti tled to be given the promotion with higher scale of pay with effect from 09.03.1 992 with notional effect but he would not be entitled to any arrear of pay for t he period from 09.3.1992 to 28.7.1992. However, the said period shall be counted for all other service benefits including pensionery benefit. 17. With the above observations and direction, the petition stands a llowed by modifying the impugned order 15.06.2006 (Annexure- 17) as well as the upgradation order dated 28.07.1992 (Annexure- 9) as far as the petitioner is con cerned to the extent indicated above. 18. No order as to cost.