IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8838 of 2003 PALAKDHARI MANDAL, son of late Bannu Mandal, resident of village Barari (Muslim Tola), Guru Bazar, P.S. Barari, District Katihar … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary Primary Education Department, New Secretariat, Bihar, Patna 3. The Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, Patna 4. Director Primary Education Department, Govt. of Bihar, Patna 5. The District Magistrate. Katihar 6. The District Superintendent of Education, Katihar … Respondents ----------- 3. 3.9.2010 Having heard Mr. Vindhyachal Singh, counsel for the petitioner and the counsel for the State with regard to the following relief: “I) For issuance of a writ in the nature of mandamus directing the respondents to promote the petitioner to the post of Headmaster with all consequential benefits. II) For issuance of a writ in the nature of mandamus directing the respondents to grant the B.A. trained scale to the petitioner with restrospective effect from 17.7.1985 and to make the payment of the arrear from the aforesaid date. III) For issuance of a writ in the nature of mandamus commanding the respondents to I.A. trained scale 2 with retrospective effect from 20.2.80 and to make the payment of the arrear from the aforesaid date. IV) For issuance of a writ in the nature of mandamus directing the respondents to give time bound promotion which is due to the petitioner with all consequential benefits. this Court would find that three promotion claimed by the petitioner on three different post and three different dates, namely, I.A. trained scale of pay with effect from 20.2.1980, B.A. trained scale of pay with effect from 17.7.1985, time bound promotion and the promotion on the post of Headmaster with effect from 1986 and 2000 respectively are not only wholly belated but also misconceived. In the cadre of teachers in the Government Primary School the basic post is of a matric trained teacher. The petitioner came out with a case that he was entitled for promotion on the post of I.A. trained teacher because he had passed Intermediate Examination in the year 1979 and the persons junior to him had already been given such 3 promotion in I.A. trained scale of pay. That matter had received attention of the District Superintendent of Education, Katihar who by his order dated 9.10.1990 had rejected such claim of the petitioner wherein it was mentioned that the basis for promotion in I.A. trained scale of pay in the year 1981 was a gradation list of the year 1978 in which the name of the petitioner would not figure as by that time he had not even passed the I.A. examination. It was in this regard that the case of discrimination of the petitioner as against his junior Bharat Mandal was also clearly explained while communicating the decision on 9.10.1990 wherein it was shown that Bharat Mandal had passed his Intermediate Examination in the year 1976 and his promotion, therefore, in the year 1981 on the basis of 1978 gradation list was given effect to. The petitioner happily accepted this position and in fact did not assail the order dated 9.10.1990 except by filing a representation to the Collector of Katihar District. The said representation was again 4 examined at the level of the Collector and thereafter the decision was communicated to the petitioner on 15.1.1991 (Annexure ‘A’) rejecting his claim for promotion in I.A. trained scale of pay. Either the order of the year 1990 (Annexure 4) or the order contained in Annexure ‘A’ was not challenged and the same become final. This writ application, therefore, filed in the year 2003, on 27.8.2003 claiming retrospective promotion in I.A. trained scale of pay with effect from 1980 even without assailing the aforesaid two orders dated 9.10.1990 and 15.1.1991 must be held to be wholly belated, inasmuch as such stale claim cannot be gone into after more than 13 years of cause of action. Once this aspect becomes clear the petitioner at the relevant point of time 1993 was only a matric trained teacher i.e. till introduction of 1993 Rules given retrospective effect from 1.1.1986 he could not have also been given promotion in B.A. trained scale of pay w.e.f. 17.7.1985 because he was not given promotion in I.A. trained scale of pay. It has to be kept in 5 mind that only in the year 1993 with effect from 1.1.1996 on account of merger of matric trained scale of pay and I.A. trained scale of pay the consideration was to be made on B.A. trained scale of pay by preparation of fresh gradation list and that too w.e.f. 1.1.1986 or thereafter. The reliance placed by the petitioner, therefore, on a 1988 gradation list (Annexure 8) will be of no avail, inasmuch as after 1993 Rules had already come into force with effect from 1.1.1986 such gradation list could not have been made the basis for giving promotion to the petitioner with retrospective effect in B.A. trained scale of pay w.e.f. 17.7.1985. The case and the claim of the petitioner must survive by the relevant provision of the Rules and in view of that admitted position that before 1.1.1986 the petitioner was not promoted in I.A. trained scale of pay nor any junior to him who had passed I.A. examination alike him in the year 1979 or thereafter had been given such promotion in I.A. trained scale of pay, the double promotion sought by the petitioner in B.A. trained scale of pay with effect from 6 17.7.1985 is wholly misconceived. Once this aspect becomes clear, the claim of promotion in B.A. trained scale of pay with effect from 17.7.1985 would also not be admissible to him and at least this Court taking that cause of action for such B.A. trained scale of pay was sought to be created with effect from 17.7.1985 would hold this writ application to be wholly belated even in respect of the other relief. Promotion on the post of headmaster prior to 1986 was not promotion by post. It was the only senior most teacher of B.A. trained scale of pay who has been posted as Headmaster. It is only in 1993 Rules, given retrospective operation from 1.1.1986, that the post of Headmaster became a promotional post of teachers in B.A. trained scale of pay and that too only to them who had possessed the qualification of Post Graduate. This Court is not aware of the fact as to whether any of the junior to the petitioner who had passed I.A. examination in the year 1979 was ever given promotion on the post of Headmaster without even being given B.A. trained scale of pay. 7 The whole scope of 1993 Rules was gone into by the Full Bench of this Court in the case of Ram Nath Prasad Singh & ors. vs. the State of Bihar & ors., reported in 2009(3) PLJR 384, wherein a direction has been issued to consider the cases of grant of B.A. trained scale of pay by preparing a fresh gradation list. If in that exercise the petitioner can still demonstrate that anyone junior to him were given such promotion in B.A. trained scale of pay, the respondents would be under obligation to consider his case but then only with effect from such date on which his juniors were given promotion after 1.1.1986 i.e. when 1993 Rules came into force. In this regard it has also to be noted that there is a categorical assertion of the respondents in their counter affidavit that no one junior to the petitioner has been given B.A. trained scale of pay after 17.7.1985 and the same has not been controverted by the petitoiner. Of course the said counter affidavit was filed in the year 2006 at a point of time when the aforesaid Full Bench judgment was not available and therefore, 8 the petitioner at best would be entitled for consideration for promotion in B.A. trained scale pay as directed by the Full Bench but ion no event from 17.7.1985 and in fact only from such date on which juniors to him were given promotion on or after 1.1.1986 in terms of 1993 Rules. The last submission of Mr. Singh as with regard to time bound promotion has also been suitably explained in the counter affidavit by saying that so far the post of teachers are concerned, the concept of time bound promotion came to an end with effect from 1.1.1986. For this purpose the respondents have relied on the resolution of the State Government dated 18.12.1989 and 17.6.1985 and it has been claimed that on that basis if the petitioner’s matric trained scale of pay was given from 1976 and ten years period could have completed only after 1.1.1986 he was not entitled for grant of time bound promotion. The Government decision being one applicable to all the persons and there being no exception shown in the matter of grant of time bound promotion this Court would find it difficult 9 to issue a mandamus for directing the respondents for giving time bound promotion to the petitioner with effect from a date on which such time bound promotion did not remain in existence for the post of teachers. In that view of the matter, this writ application is disposed of by directing the respondents to consider the case of the petitioner afresh for grant of B.A. trained scale of pay in terms of the directions given by the Full Bench in the case of Ram Nath Prasad Singh (supra). This exercise, if not already completed in the case of the petitioner, must be done so within a period of six months from the date of receipt/ production of a copy of this order but such promotion will be given only from the due date to which the petitioner is found entitled as explained above. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/ 10