WRIT PETITION 2907 of 2014 on 14 July 2009

1. State of Jharkhand.

2. Principal Secretary, Human Resource Development Department, Government of Jharkhand, Project Building, P.O. Jagarnathpur, P.S. Dhurwa, District-Ranchi.

3. Director, Primary Education, Human Resource Development Department, Government of Jharkhand, Project Building, P.O. Jagarnathpur, P.S. Dhurwa, District-Ranchi.

4. Regional Deputy Director Education, Hazaribagh, P.O.,P.S. & District-Hazaribagh.

5. Deputy Commissioner Cum Chairman, District Education Establishment Committee, Bokaro, P.O.,P.S. & District-Bokaro 6. Deputy Development Commissioner, Bokaro, P.O.,P.S. & District-Bokaro.

7. District Superintendent of Education, Bokaro, P.O.,P.S. & District-Bokaro. … … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Bhanu Kumar, Advocate For the Respondents : Mr. Sushant Kumar, AC to SC-II For the Respondents : Mr. Sushant Kumar, AC to SC-II

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17/28.02.2025

Heard the learned counsels appearing on behalf of the parties. 2.This writ petition has been filed for the following reliefs:

“(i) For issuance of an appropriate writ(s)/order (s)/direction(s) or a writ in nature of mandamus commanding upon the respondents to grant promotion to the petitioner to Grade-IV graduate trained pay-scale with effect from the date on which the juniors of the petitioner has been granted promotion to the graduate trained pay-scale (Grade-IV). AND

(ii) For issuance of an appropriate writ(s)/order (s)/direction(s) or a writ in nature of mandamus commanding upon the respondents to consider the case of the petitioner for grant of promotion to Grade-VII (Head Master) and to include the name of the petitioner in the proposed gradation list for granting the aforesaid promotion because many junior teachers have been included in the gradation list whereas the name of the petitioner has been left out which is in utter violation of the Provisions of Promotion Rules.”

3. Learned counsel for the petitioner has referred to the gradation list prepared way back in the year 2005 (Annexure-2) and has submitted that for the purposes of grant of promotion to grade IV, a gradation list of eligible teachers was prepared. In the said list, the name of the petitioner appeared at serial no. 6 and the persons who were at serial nos. 9, 10, 12, 13 and 14 were granted promotion to grade-IV vide order contained in memo no. 509 dated 14.07.2009 but the petitioner was left out.

4. The learned counsel submits that the petitioner had filed a representation before the District Superintendent of Education, Bokaro on 04.06.2014 not only for grant of promotion to Grade-IV but for further promotion to grade-VII. However, during the course of argument, the learned counsel for the petitioner has submitted that he would not be pressing for his grievance in connection with promotion to Grade-VII.

5. The learned counsel submits that in spite of representation, when no action was taken to redress the grievance of the petitioner, the present writ petition was filed before this Court on 20.06.2014.

6. Learned counsel for the petitioner has further submitted that a counter-affidavit was filed initially on 13.01.2015 wherein there was no explanation for not granting promotion to the petitioner to grade-IV although juniors to him were promoted but at the same time, in the affidavit it was mentioned that as on that date, there were 11 vacant posts in grade-IV (B.Sc. trained) and work to prepare the gradation list was under progress. It was also mentioned that needful would be done after adhering to due process and promotion shall be granted to the eligible candidates as per gradation list which was to be prepared. The learned counsel also submits that the necessary documents in connection with grant of promotion was furnished by the petitioner, but no decision was taken.

7. He submits that an order dated 06.02.2020 was drawn by this Court wherein the learned counsel for the State had submitted that the petitioner had not challenged the gradation list, but such a contention was rejected by this Court as there was no occasion to challenge the gradation list as the name of the petitioner found place in the list which was approved and considered for grant of promotion.

8. Vide the said order dated 06.02.2020 the respondents were directed to file specific reply as to why the petitioner was discriminated and juniors to the petitioner were granted promotion dehors the Promotion Rules of 1993 and without taking into consideration the seniority of the petitioner as per the gradation list.

9. The learned counsel for the petitioner has submitted that a 2[nd]supplementary counter-affidavit has been filed before this Court mentioning therein that in the gradation list prepared in the year 2014 the petitioner’s name was at serial no. 11, but the promotion was not granted to the petitioner as none of the teachers were granted benefit of promotion to grade -IV after 2009. A further stand was taken that the petitioner never raised any objection to the promotion granted in the year 2009 which was granted vide memo no. 509 dated 14.07.2009. It was also stated in the affidavit that the petitioner has attained the age of superannuation on 31.12.2022.

10. The learned counsel for the petitioner has further submitted that the respondents have no explanation for not granting promotion to the petitioner and the respondents are unnecessarily passing the burden upon the petitioner by stating that the petitioner ought to have raised objection with regard to the promotion of others. The learned counsel submits that on the face of the gradation list for grant of promotion prepared by the respondents as contained in annexure-2, they were duty bound to act as per the gradation list, which in the entire records of this case is not in dispute. The learned counsel submits that as per Rule 10 of the Promotion Rules, the promotion has to be granted on the basis of gradation list. He submits that the respondents have violated the rules and therefore, the petitioner is entitled for the relief as prayed for in this writ petition.

11. Learned counsel for the respondents, on the other hand, while opposing the prayer of the petitioner has submitted that as per the 2[nd]

Conclusion

supplementary counter-affidavit the promotion was not granted on the basis of gradation list prepared in the year 2005 (Annexure-2 to the writ petition), but the same was granted on the basis of gradation list prepared in the year 2008. He has referred to paragraphs 8, 9 and 10 to 15 of the 2[nd] supplementary counter-affidavit dated 20.03.2023 and submits that it is true that in the gradation list prepared pursuant to the meeting held on 14.06.2005 the name of the petitioner was at Sl. No. 6 but a revised gradation list was prepared and thereafter, it was finalized in the meeting held on 27.05.2008 which was followed by letter no. 85 dated 27.02.2009 and ultimately, approved by the Regional Deputy Director of Education vide letter no. 332 dated 04.03.2009. He submits that name of the petitioner did not find place in the final gradation list which was prepared in the year 2008. He submits that the final gradation list of the year 2008 was followed by the order of promotion as contained in Memo No. 509 dated 14.07.2009 and in the said memo also, there was a clause that if anybody has any objection with regard to promotion, one can raise objection, but the petitioner did not raise objection at the relevant point of time and filed writ petition only in the year 2014 claiming promotion to Grade-IV as well as further promotion to Grade-VII. The learned counsel submits that the gradation list of the year 2005 which is being relied upon by the petitioner is of no consequence. He has submitted that in the circumstances the petitioner has already attained the age of superannuation, no mandamus be issued.

12. The learned counsel for the respondents has relied upon the judgment passed by the Hon'ble Supreme Court reported in 2024 SCC OnLine SC 3512 (Government of West Bengal and others Vs. Dr. Amal Satpathi and others) and has submitted that the Hon'ble Supreme Court has reiterated that no retrospective promotion can be granted nor can any seniority be given retrospectively from the date when an employee had not even been born in the cadre. The learned counsel has submitted that as the petitioner was not granted promotion in terms of the gradation list of the year 2008 and his name did not appear in the gradation list of the year 2008 and the gradation list of the year 2008 was never challenged by the petitioner, there is no illegality in the action of the respondents in giving promotion as per the final gradation list of the year 2008. He submits that there is no question of grant of any retrospective or notional promotion to the petitioner in the facts and circumstances of this case.

13. After hearing the learned counsels appearing on behalf of the parties and upon going through the materials on record, this Court finds that apparently the petitioner was claiming promotion as per the writ petition on the basis of gradation list prepared in the year 2005 and the grievance of the petitioner was that as per the gradation list of 2005, his juniors were granted promotion vide memo no. 509 dated 14.07.2009, but the petitioner was left out.

14. It is important to note that the memo no. 509 dated 14.07.2009 has not been challenged by the petitioner nor any of the persons who have been granted promotion who were juniors to the petitioner have been made party in the present proceedings.

15. This Court further finds that an order was drawn by this Court on 06[th] February 2020 wherein the objection of the State that the petitioner had not challenged the gradation list was rejected in view of the fact that as per the writ records, the petitioner was claiming promotion on the basis of the gradation list of the year 2005 placed on record and the grievance of the petitioner was that juniors to the petitioner in the gradation list of 2005 were granted promotion and the petitioner was left out. Further, an order was also passed on the same date directing the respondents to explain as to why the juniors to the petitioner have been granted promotion and the petitioner has been left out. The 2[nd] supplementary counter-affidavit filed by the respondents reveals that the promotion in the year 2009 was not granted on the basis of gradation list of the year 2005, but the same was granted on the basis of final gradation list of the year 2008 in which the name of the petitioner did not figure. Since the petitioner has not challenged the final gradation list of the year 2008 in which his name did not appear , entitlement of the petitioner and also the claim of the petitioner cannot be ascertained in this writ proceedings.

Pankaj

16. The entire background under which the promotion order contained in memo no. 509 dated 14.07.2009 has been issued which has been based on final gradation list of the year 2008 and not on the gradation list of 2005 , has been given in the 2[nd] supplementary counter-affidavit.

17. Thus, the very basis of the claim of the petitioner that the petitioner was entitled for grant of promotion as per the gradation list of the year 2005 stands demolished by virtue of the 2[nd] supplementary counter-affidavit filed by the respondents as the promotion was given on the basis of final gradation list of the year 2008 and not on the gradation list of the year 2005.

18. Neither any rejoinder has been filed by the petitioner to the 2[nd]supplementary counter-affidavit nor the petitioner has taken any steps to challenge the gradation list of the year 2008 which has been brought on record nor the persons who were granted promotion and alleged to be junior to the petitioner have been made party.

19. In view of the final gradation list of the year 2008, no relief can be granted to the petitioner on the basis of earlier gradation list of the year 2005 which was modified and revised in the year 2008 and promotion was granted to the eligible candidates as per the final gradation list of 2008 and not from the gradation list of the year 2005 as claimed by the petitioner in the writ petition.

20. Considering the totality of facts and circumstances, this Court is not inclined to grant the relief as prayed for by the petitioner and finds no merit in this writ petition which is accordingly dismissed.

21. Pending interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.)