IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1097 of 2003 SIYA RAM YADAV son of Late Bhogi Lal Yadav, resident of village- Kalautaha, Post Office- Chatra, Police Station- Murliganj, District- Madhepura, at present: serving as the Head Master Stotronate Madhya Vidyalaya Borahi Goth, Police Station-Uda Kisanganj, District- Madhepura. … Petitioner. Versus 1. THE STATE OF BIHAR 2. The District Superintendent of Education, Madhepura at and P. O. – Madhepura, District- Madhepura. 3. The Regional Education Officer, Uda – Kishanganj, District- Madhepura. 4. The Treasury Officer, madhepura, at and P. O. Madhepura, District- Madhepura. 5. Sri Jayanarayan Yadav (Guchchha Head Master) Madhya Vidyalaya, Vishhariya, Police Station- Uda- Kishanganj, District- Madhepura. … Respondents. ------------- 5. 11.08.2010 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ petition reads as follows:- “1. That this writ application is being filed or issuance of a writ in the nature of certiorari for quashing the order bearing Memo No. 475-5-Madhepura dated 27.3.2001 passed by the District Superintendent of Education, Madhepura and for issuance a writ in the nature of mandamus directing the respondents to make payment of the differences of the pay scale of Head master to the petitioner from September, 1996 to February, 2001 in compliance with the order dated 14.5.1998 passed by this Hon’ble Court in CWJC No. 11656/1996 and the order dated 5.6.2000 passed by the District Superintendent of Education, Madhepura in compliance with the order passed by this Hon’ble Court.” 2 Counsel for the petitioner would submit that the order dated 27.3.2001 depriving the petitioner from the payment of salary for the post of Headmaster for the period September, 1996 to December 1999 is wholly unsustainable inasmuch as when the authorities by earlier order dated 6.5.2000 had restored the pay of being drawn by the petitioner from September 1996 in terms of the order of this Court in CWJC No. 11656 of 1996 it was not open for the same authority to pass a conflicting order. Counsel for the State, on the other hand, would submit that in fact, the impugned order which has been passed is outcome of the directions given in CWJC No. 11656 of 1996 inasmuch as this Court had made it clear that the earlier order cancelling the promotion of the petitioner and others on the ground of violation of principles of natural justice will not automatically entail also the consequences of payment of salary unless the promotion was found to be justified and as the impugned order itself refers to the facts that the promotion of the petitioner was given without there being available vacant sanctioned posts, the petitioner’s promotion in fact has 3 been only shifted to the month of January 2000 and as such the petitioner would not be entitled for payment of salary for the interregnum period from September 1996 to December 1999. Counsel for the petitioner in reply, would submit that if such an interpretation of the order of this court dated 14.5.1998 in CWJC No. 11656 of 1996 is accepted, even then in the case of the petitioner no opportunity of hearing was given to the petitioner before passing of the impugned order dated 27th March 2001. While it is true that in earlier round of litigation this Court had found the order cancelling the promotion of the petitioner and a large number of similarly situated Headmasters of Primary School and Middle School to be illegal on the ground of violation of principles of natural justice but then this Court had also made it clear that the monetary benefit on account of such promotion to the petitioner and others would follow only if authority could come to a conclusion that such earlier promotion to the petitioner was legal and valid. This aspect of the matter in fact would become more clear from the text of order of this Court dated 14.5.1998 which for the sake of 4 brevity and clarity is quoted hereinbelow: “ The petitioner have challenged the impugned order, as contained in Annexure- 1, issued from the office of the District Superintendent of Education, Madhepura, by which the competent Authority, namely, the District Education Establishment Committee has passed the order cancelling the earlier promotions granted to the petitioners and others. The petitioners are Assistant Teachers in the Middle Schools. They were granted B. A. trained scale and promoted to the posts of Headmaster. By the impugned order, the same has been cancelled on the ground that the promotions were given to them without following the procedure. Some of the persons aggrieved by the said order have already approached this Court earlier and this Court in CWJC No. 10887 of 2006 and CWJC No. 10889 of 1996 as well as CWJC No. 10993 of 1996, disposed of on 5.5.1998, has quashed the order on the ground that the adverse order against the petitioners of those cases has been passed without compliance of the principle of natural justice. In other words without affording any opportunity of hearing, promotions granted to them have been nullified. On the same ground, as was made basis in the said writ applications, this application is allowed and the impugned order, so far as it relates to the petitioners, is quashed with this direction that it will be open to the authorities to reconsider the matter afresh after compliance of the principle of natural justice. It is made clear that if the earlier promotions granted to the petitioners are found to be not according to law, then they will not be entitled to monetary benefit as a result of file of irregular promotions.” 5 The aforesaid order of this court therefore is very clear that the petitioner or any other employee could not have become entitled for monetary benefit of such promotion given to them earlier if their promotion was not valid and legal. In that view, the respondents had not committed any error in passing the impugned order dated 6.5.2000 in compliance of the order of this Court but then as this Court itself had not made the petitioner entitled for continuance of payment of any amount till the case of the promotion of the petitioner was examined and its validity decided, the respondents were required to pass an order. From the reading of such impugned order dated 27.3.2001, as quoted herein below:- dk;kZy;] ftyk f'k{kk v/kh{kd] e/ksiqjk dk;kZy; vkns'k ÞJh fl;kjke ;kno] iwoZ iz/kkuk/;kid] L=ks0 e/; fo|ky;] cjkgh xksB] vapy mnkfd'kqu if'pe] ftUgs bl dk;kZy; ds Kkikad 2202&4 fnukad 6-12-2000 ds }kjk iz/kkuk/;kid dk in fjDr ugha jgus ds dkj.k iz/kkuk/;kid dk osrueku~ LFkfxr fd;k x;k Fkk] dks ftys esa iz/kkuk/;kid dk in fjDr gksus ds QyLo:i lE;d leh{k.kksijkUr lh-MCyw-ts-lh- la[;k 11656@96 esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k ds vuqikyu esa flrEcj] 96 ls iz/kkuk/;kid dk osrueku~ cgky djrs gq, bldk vkfFkZd ykHk L=ks0 e/; fo|ky;] cjkgh xksB esa ekg tuojh] 2000 ls iz/kkuk/;kid dk in fjDr gksus dh frfFk ls Hkqxrku dh vuqefr iznku dh tkrh gSA g0 vLi"V ftyk f'k{kk v/kh{kd 6 e/ksiqjk Kkikad 475&5 @ e/ksijqk] fukad 27 ekpZ] 2001Þ it becomes clear that the earlier promotion of the petitioner was not found to be valid and legal inasmuch as there was no vacant and sanctioned post available for such promotion of the petitioner. In promotion matter at least two things will have to be always looked into; firstly availability of sanctioned vacant post for getting such promotion and secondly, the eligibility of such person. Thus, if there was no vacant sanctioned post available for promotion of the petitioner and the authorities had accordingly shifted the date of his promotion, the petitioner cannot claim salary for the period of his earlier promotion. At this stage, counsel for the petitioner would point out that the petitioner has been given promotion by shifting the date of promotion on the ground of non- availability of sanctioned post but several juniors were allowed to retain the benefit of such promotion. He would submit that had the authorities complied the order of this Court and given notice and/or opportunity of hearing as directed in the order dated 14.5.1998 in 7 CWJC No. 11656 of 1996, the petitioner could have easily explained this aspect. Considering the aforementioned limited the grievance of the petitioner, this Court would direct the petitioner, by way of post facto hearing, to appear before the District Superintendent of Education, Madhepura and file self-contained representation explaining his case and claim for payment of salary for the period September 1996 to December 1999 by giving the details of also such persons who according to the petitioner were his juniors and were still allowed to retain the post of Headmaster in the said period September 1996 to December 1999 with financial benefits despite there being no vacant sanctioned post available for them as well. The petitioner may also in the said representation demonstrate that as a matter of fact for the same period the vacancy was always there for his being given such promotion with financial benefit. Such representation will be examined by the District Superintendent of Education and he would place the same with his comments before the District Education Establishment Committee which then would take its final decision as 8 with regard to the aforementioned claim of the petitioner. The Committee must take its decision within a period of six months form the date of receipt/production of a copy of this order and the representation filed by the petitioner. Let it be made clear that none of the observation made above would prejudice the case of the petitioner or the State inasmuch as the Committee must decide the case of the petitioner objectively and strictly in accordance with law. With the aforementioned observation and direction, this writ petition is disposed of. kanchan/ (Mihir Kumar Jha, J.)