IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12146 of 2008 Ramashankar Trivedi, aged about 50 years son of Shree Banshidhar Trivedi, resident of Village Dobhari, P.O. Manihari, P.S. Chainpur, Dist. Kaimur, at present Assistant Teacher (Sanskrit), Rajkiya Anusuchit Janjati Avashiya Madhya Vidyalaya, Masani, Dist. Kaimur (Bhabhua). --------- Petitioner Versus 1. The State of Bihar. 2. The Director, Welfare Department, State of Bihar, Patna. --------- Respondents ----------- For the Petitioner : Mr. A.B. Ojha, Advocate Mr. Sri Niwas Jha, Advocate Mr. Bharat Bhushan, Advocate For the State : G.P.-12 ---------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (05.12.2011) Mihir Kumar Jha, J. Heard learned counsel for the parties. The prayer of the petitioner in this writ application is for quashing an order dated 28.8.2004, whereby and whereunder, the promotion given to the petitioner in the B.A. trained Scale has been cancelled on the ground that the petitioner did not possess the requisite qualification of Bachelor in Education (B.Ed.). Learned counsel for the petitioner would submit that the petitioner right from the beginning was a holder of Acharya qualification for whom the State Government had already issued an order of exemption of passing B.Ed. examination for getting the pay-scale of either I.A. Trained or B.A. Trained. In this regard, he would also refer to the Government decision dated 2 29.3.1967 issued by the Education Department, wherein, it was decided to allow Acharya or a Fazil to have the pay admissible to a trained teacher in the Graduate Trained Scale. He would accordingly submit that the promotion given on that basis to the petitioner in the year 1994 after due consideration of the fact that the petitioner was only a holder of Acharya qualification and despite being not having the qualification of B.Ed., his promotion could not have been cancelled and that too without following the principle of natural justice. Counsel for the State, on the other hand with the help of the counter affidavit filed in this case, would submit that it is a misnomer impression being created by the petitioner that the circular of the Education Department would govern the school of the Welfare Department. Those circulars, which were issued by the Education Department, were exclusively confined to the primary school of the Education Department because the Welfare Department had framed not only its regulation for the schools controlled by it but even the cadre of the teacher of the school of Welfare Department were having separate existence. He has also submitted that the exercise, which was undertaken by the authority of the Welfare Department, was a fall out of a direction given by this Court in the judgment dated 25.10.2000 in CWJC No. 1503 of 1991 (Rasendra 3 Narayan Singh Vs. The State of Bihar & Ors.), wherein, this Court had directed the authorities to examine all such cases where promotion has been granted to teachers who are not trained, inasmuch as, they cannot be said to be in accordance with law. He would, accordingly, submit that pursuant to the aforesaid direction, the Authority of the Welfare Department had issued general notice in the newspaper and thereafter had passed the impugned order on the admitted fact that the petitioner and others did not possess the requisite qualification of B.Ed. before being granted the B.A. Trained Pay-Scale. In the considered opinion of this Court, there can be no quarrel on the issue that if a person does not possess the requisite qualification, his appointment/promotion cannot be justified. If, therefore, the petitioner was required to have the degree of B.Ed. for being promoted and/or granted B.A. Trained Pay-Scale by the authority of the Welfare Department for the school run by the Welfare Department and he was given such promotion either in ignorance or by a wrong interpretation of the circular of the Education Department, that cannot be binding on the State and, therefore, the promotion of the petitioner could be cancelled. In the present case, however, it appears that pursuant to the following direction of the learned single Judge in the case of 4 Rasendra Narayan Singh (supra):- “14. Coming to the other ground of challenge regarding untrained teachers also being given promotion, it was submitted by the petitioner‟s counsel that according to the State, the training qualification is not essential for promotion to the Graduate trained scale. On behalf of the private respondents it was submitted that the resolution dated 13.11.92 does not refer to „training‟ as an essential qualification for promotion to the Graduate trained scale and that the expression „Yogytadhari‟ refers to the teaching experience of three years and eight years as the case may be. The submission according to me is misconceived. The post in question has been described as “Graduate Trained Scale” posts in different Government Orders including the letter dated 23.5.84 (supra). It would be contradiction in terms to say the person concerned is not „trained‟ but he can still be appointed to the post of „Graduate Trained‟ teacher. It is true that in Sub-para (1) of Para 4 of the resolution dated 13.11.92 the post is referred to as “Graduate Teachers” but it does not mean that training is not to be treated as an essential qualification. The post of graduate trained teacher earlier carried a scale of Rs. 850- 1360/- as mentioned in letter dated 23.5.84. The post now carries the replacement scale of Rs. 1500-2750/-. Thus, though the post has been described as “Graduate Teacher” there is little doubt that it is the same post which was described as “Graduate Trained”. The training qualification therefore must be held to be essential qualification for appointment/ promotion to the post. That being so, if in any particular case or cases promotion has 5 been granted to teachers who are not trained, that cannot be said to be in accordance with law. The Director, Welfare is directed to find out if any un-trained teacher has been granted promotion as Graduate teacher in the scale of Rs. 1500-2750/- and if it is so, to cancel the same in accordance with law.” an exercise was to be undertaken by the authority of the Welfare Department to find out as to who were such persons who had been given appointment/promotion in the Trained Pay-Scale whether I.A. or B.A. without possessing the requisite qualification of training. As a follow up measure, if the Department had made its own homework and had found the petitioner and/or others disentitled for such promotion due to want of qualification, it was essential to give an individual show-cause notice disclosing the ground on which it had proposed to cancel the promotion of the petitioner. Admittedly that was never done, inasmuch as, the State Government, even by filing the supplementary counter affidavit, has submitted that only newspaper cutting was circulated. Such newspaper notice, therefore, could not have taken care of the individual case of the petitioner who does not dispute the position that requirement of being B.Ed. for appointment/promotion in the school controlled by the Welfare Department was necessary but, in the case of holders of Acharya/Fazil qualification, there was an exemption. This aspect of the matter in fact has also 6 not been considered in the impugned order which, to say the least, is cryptic and that too by way of compliance of an earlier order of this Court. In that view of the matter, this Court would dispose of this writ application with a liberty to the petitioner to approach the Authorities of the Welfare Department and file a self contained representation enclosing all the Government decisions that he would like to rely in defence of his claim of retaining his promotion in the B.A. Trained Pay-Scale. The competent authority of the Welfare Department, thereafter, would look into such defence of the petitioner and if it is found that there was already a conscious government decision for granting exemption of becoming trained to teachers holding Acharya qualification which was also adopted and followed for the teachers of schools of the Welfare Department, it would pass an order restoring the promotion given to the petitioner on the post B.A. trained teacher in the year 1994 but, on the other hand, if it is found that there was no such precedent and/or rules being made applicable for the schools of the Welfare Department and that the circular of the Education Department was only meant for the schools of Education Department, it would reiterate its earlier decision by rejecting the representation by a reasoned order. 7 This exercise should be completed within a period of six months from the date of filing of the representation by the petitioner. With the aforementioned observations, direction and liberty, this application is disposed of. Patna High Court Dated the 5th December 2011 N.A.F.R./Rsh (Mihir Kumar Jha, J.)