CWJC/4577/2015 of Ajay Kumar Singh and Ors Vs The State Of Bihar and Ors on 23 December 2020

1. Ajay Kumar Singh, Son of Nag Pujan Singh, resident of Bandhu Barwa, P.S. Ramgadhwa, District- East Champaran.

2. Deep Narayan Thakur, Son of Ram Chandra Thakur, resident of village- Pakrideyal, District- East Champaran.

3. Anirudh Kumar, Son of Ambika Jha, resident of village- Srikrishna Nagar, District- Motihari.

4. Chitranjan Singh, Son of Raj Narayan Singh, resident of village- Gujraul, P.S. Pachpakri, District- East Champaran.

5. Om Prakash, Son of Bharat Prasad Gupta, resident of Mohalla- Gopalpur, District- Motihari, East Champaran.

6. Harendra Kumar, Son of Baijnath Prasad, resident of village- Naya Bazar, District- East Champaran.

7. Ajay Kumar Singh, Son of Chandrika Singh, resident of village- Balmi Nanhkar, P.S. Kalyanpur, District- East Champaran.

8. Brajesh Kumar Singh, Son of Narendra Kishore Singh, resident of village- Mathiamol, P.S. Lakhaura, District- East Champaran.

9. Upendra Sahni, Son of Ram Sundar Sahni, resident of village- Akauna, P.S.

Chiriya, District- East Champaran.

10. Upendra Kumar Rai, Son of Ramchandra Rai, resident of village-Narayanpur, P.S. Patahi, District- Each Champaran.Narayanpur, P.S. Patahi, District- Each Champaran.

11. Arvind Kumar Srivastava, Son of Madan Prasad Srivastava, resident of village- Chandmari, Akauna, District- Motihari- East Champaran.

12. Kamlesh Kumar, Son of Rajvanshi Singh, resident of village- Bharvasia, District- East Champaran.

13. Kaushal Kumar, Son of Lal Kishore Prasad, resident of village- Srikrishna Nagar, Ward No. 31, District- Motihari.

14. Chandeshwar Prasad, Son of Ram Jivanram, resident of village- Madpakothi, P.S. Bairangnia, District- Sitamarhi.

15. Umesh Kumar Rai, Son of Harendra Prasad Yadav, resident of village- Naurangia, District- East Champaran.

16. Ram Ayodhya Sahni, Son of Anant Sahni, resident of village- Tikulia, P.S.

Pipra, District- East Champaran.

17. Narendra Kumar Sharma, Son of Shiv Pujan Sharma, resident of village- Shantipuri, Motihari, District- East Champaran.

18. Sunil Kumar, Son of Yogendra Prasad, resident of village- Jhitkatia, District- East Champaran.

19. Md. Faroque Ahmad, Son of Ghulam Rashool, resident of village-Murgiatola, P.S. Ramgadhwa, District- East Champaran.Murgiatola, P.S. Ramgadhwa, District- East Champaran.

20. Rashmi Kumari, Wife of Mohan Singh, D/o Pirthavi Prasad Singh, resident of village- Sarisawan, P.S. Turkaunia, District- East Champaran.

21. Manoj Kumar Singh, Son of Surendra Prasad Singh, resident of village- Bangra, District- East Champaran.

22. Ravindra Kumar Rao, Son of Kapildev Rao, resident of village- Sirsiya, P.S.

Bagha, District- West Champaran.

23. Prem Chand Prasad, Son of Rameshwar Prasad, resident of village-Brahampura, District- East Champaran.Brahampura, District- East Champaran.

... ... Petitioner/s

Versus

1. The State Of Bihar, through the Principal Secretary, Department ofEducation, Government of Bihar, Patna Education, Government of Bihar, Patna

2. The Director, Primary Education, Government of Bihar, Patna.

3. The Regional Deputy Director of Education, Muzaffarpur.

4. The District Education Officer, East Champaran.

5. The District Primary Teacher Promotion Committee, through the District Programme Officer (Establishment), East Champaran

6. Sobha Kumar, Assistant Teacher, Upgraded Middle School, Ratanpur, Raxaul.

7. Sanjeev Kumar, Assistant Teacher, Upgraded Middle School, Tilkahani,Ramgadhwa. Ramgadhwa.

8. Sharma Thakur, Assistant Teacher, Upgraded Middle School, Kaswa, Laukahan, Gogasahan.

9. Nand Kishore Prasad, Assistant Teacher, Upgraded Middle School, Semra Mauza, Chakig.

10. Rabindra Prasad, Assistant Teacher, Upgraded Middle School, Pakadiya Tola, Harsidhi.

11. Basuki Nath Thakur, Assistant Teacher, Upgraded Middle School, Bahuara,Gopising, Katelahari Tola, TetariyaGopising, Katelahari Tola, Tetariya

... ... Respondent/s

CORAM: HONOURABLE MR. JUSTICE S. KUMARORAL JUDGMENT

Date : 23-12-2020

This writ application has been filed on behalf of thepetitioners for a direction to the respondent authorities to grantpromotions to the petitioners on the post of Graduate TrainedTeacher with effect from 31.12.2012 as their juniors (respondentnos.6 to 11) have already been promoted on the post of Graduate Trained Teachers with effect from said date.

2. They have further prayed to quash the office ordercontained in Memo Nos.2612 and 2613 dated 28.06.2013(Annexure 2 and 2/1) issued from the office of DistrictEducation Officer, East Champaran, Motihari by whichpromotion to the post of Graduate Trained Teachers have beengranted to the Matric trained teachers including respondentnos.6 to 11 in terms of resolution dated 20.06.2013 of DistrictPrimary Teachers Promotion Committee, East Champaran. Theyhave further prayed to quash the final seniority list of MatricTrained Teachers having qualification of BA as contained inMemo No.3158 dated 15.12.2012 issued from the office ofDistrict Education Officer, East Champaran and to prepare finalseniority list of Matric Trained Teachers having qualification ofBA in terms of merit list published by Bihar Public ServiceCommission in terms of letter no.571 dated 24.08.2012 issuedby Directorate Primary Education, State of Bihar and to grantpromotion to the petitioners on the post of Graduate TrainedTeachers as per their rank in the merit list prepared by BiharPublic Service Commission.

3. Brief fact of the case is that petitioners and respondentnos. 6 to 11 were appointed on the post of Assistant Teachers on the basis of their selection made by Bihar Public ServiceCommission in the year 1994. Petitioners and respondent nos.6to 11 were already Graduate at the time of their appointment.Petitioners and respondent nos.6 to 11 being untrained havinghigher qualification were initially appointed against sanctionedpost of Matric Trained Teacher. Petitioners and respondent nos.6to 11 completed in-service training and got Matric trained scalewith effect from 01.01.2003 having same pay scale.

4. District Education Officer, East Champaran vide memoNo.3158 dated. 29.07.2011 prepared final seniority list of 400Matric trained teachers having qualification of BA includingpetitioners, however, while preparing the seniority list of Matrictrained teachers, having qualification of BA, ignored the meritlist of selected candidates published by Bihar Public ServiceCommission, as a result of which, candidates who were higherin rank became junior in final seniority list of Matric trainedteachers including petitioners. The final seniority list wasprepared on the basis of date of birth / date of joining.

5. In terms of Rule 8 of Bihar School Teachers PromotionRules, 2011 the respondent authorities have prepared the list ofpromotion to the post of graduate trained teachers vide memonos.2612 and 2613 dated 28.06.2003 (Annexure 2 and 2/1)

Issues

issued from the office of District Education Officer, EastChamparan which does not include the name of petitioners,whereas, name of respondent nos. 6 to 11, who were juniors topetitioners, find place in the said list.

6. It has been submitted on behalf of the petitioners thatwhile preparing the said promotion list, as contained inAnnexure 2 and 2/1, the respondent authorities did not followthe direction, as contained in letter no.592 dated 10.05.2013,issued by the department of Education, Government of Bihar,Patna by which it was directed to follow theletter no.571 dated24.08.2012 issued by the Directorate for preparation of senioritylist, according to which inter se seniority, among the teachersappointed under Bihar Primary School Teachers AppointmentRule, 1991 shall be determined as per merit list prepared byBihar Public Service Commission. It has been submitted thatpromotion granted to the Matric trained teachers on the post ofGraduate (Arts) trained teachers as contained in Annexure 2 and2/1 has been prepared in contravention of letter dated10.05.2013 (Annexure 3) and letter dated 24.8.2012 (Annexure4). Respondent authorities while preparing the final seniority listof Matric trained teachers for the purpose of promotion on thepost of graduate trained teachers, merit list of 1994 published by Bihar Public Service Commission has not been followed andjuniors have been promoted and petitioners have been deniedpromotion.

7. Counter affidavit has been filed on behalf of theprivate respondent nos.8, 9, 10 and 11 and it has been submittedthat on the recommendation of Bihar Public ServiceCommission, Patna, petitioners and answering respondents wereappointed as Assistant Primary teachers in the district of EastChamparan in the year 1994. The appointment was madepursuant to advertisement published on 9[th] October, 1991 byDirectorate, Primary Education, Government of Bihar, Patna forappointment to the post of primary teachers and the final resultwas published on 31.8.1994 for appointment as AssistantTeacher in the district of East Champaran, Motihari andthereafter petitioners and answering respondents were appointedin 1994.

8. Both were Matric untrained and they were impartedin-service training and became trained teachers on 20.6.2005and as per department office order dated 20.6.2005, both gotMatric trained scale from 01.10.2003 vide letter no.790 dated29.7.2011.

9. It has been submitted that final gradation list was prepared for the promotion on the post of Graduate Teachers(Arts) and was issued vide memo no.3158 dated 15.12.2012(Annexure 1) strictly in conformity with Clauses 8, 11 and 12of the Bihar School Teachers Promotion Rule, 2011. Clauses11 and 12 deals with the preparation of gradation list and as perClause 12, seniority is to be determined according to date ofattaining specific grade, i.e., Matric trained scale and if the saidgrade is same then the date of birth will be the next criteria fordetermination of seniority list. Petitioners and respondents wereappointed in 1994 and they joined on various dates. Both gotMatric trained scale on 1.10.2003, as such, final gradation listwas prepared according to the date of birth.

10. After preparation of final gradation list in conformitywith Bihar School Teachers Promotion Rules, 2011, promotionof graduate trained scale is to be made against the available postand as per roster against which, 191 posts were unreservedpost, 91 posts were reserved for Scheduled Caste and 9 postswere reserved for Scheduled Tribes which were vacant andpromotion on graduate trained scale has been given to thecandidates in terms of 2011 Rule vide memo no.2612 and 2613dated 28.6.2013 (Annexure 2 and 2/1). Petitioners belong toGeneral Category and their name is below serial no.191 of the final gradation list.

11. Counter affidavit and supplementary counteraffidavit have been filed on behalf of respondent nos.4 and 5stating therein that final gradation list has been prepared forpromotions on the post of Graduate Trained Teachers (Arts) andhas been issued vide memo no.3158 dated 15.12.2012 (Annexe1 of writ petition) strictly in consonance with Clause 8, 11 and12 of the Bihar School Teachers Promotion Rules, 2011.

12. It was further submitted that Clauses 11 and 12 ofthe Rule deal with mode for preparation of gradation list. UnderClause 12, it has been specifically mentioned that seniorityshould be determined according to the date of attaining specificgrade (Matric Trained Grade) and if the specific grade is same,then the date of birth will be the next criteria for determinationof seniority list. No specific provision has been made in thePromotion Rule, 2011 that promotion on Graduate TrainedScale should be in accordance with the merit list published bythe BPSC.

13. It was further contended that letter no.571 dated24.8.2012 (Annexure 4 of the writ petition) is related withproviding senior scale and all the writ petitioners have got thesame vide memo no.349 dated 5.2.2015. Claim in this writ petition is with respect to promotion from Matric Trained Scaleto Graduate Trained Scale and is not a matter of giving seniorscale.

14. It has been further stated that promotion ofrespondent nos.9 and 11 along with others was given w.e.f.31.12.2012 vide memo no.2413 dated 28.6.2014 pursuant todirection of this Hon’ble Court dated 11.3.2014 passed inC.W.J.C. No.1875 of 2014. Promotion of respondent no.8 hasbeen given w.e.f. 20.6.2013. During pendency of writ petition,writ petitioners have also been promoted on the post ofGraduate Trained Scale vide proceeding of District PromotionCommittee dated 27.7.2016 in terms of Promotion Rules, 2011.

15. Supplementary affidavit on behalf of petitioners havebeen filed stating therein that in other districts of State of Bihar,the authorities have followed the instructions contained inAnnexure 4 to the writ petition in the matter of promotion fromMatric Trained Scale to Graduate Trained Scale. Inter seseniority, as contained in merit list of BPSC has been strictlyfollowed.

16. During pendency of writ petition to the specificquery made by this Hon’ble Court by order dated 23.7.2018,affidavit dated 7.9.2018 was filed on behalf of respondent nos.4

and 5 stating therein that Bihar Elementary School AppointmentRule, 1991 was amended by Bihar Elementary SchoolAppointment Rule, 1993 which provided for conducting writtenexamination. Select list was to be prepared by BPSC afterfollowing reservation rules on the basis of marks secured in theMain examination. Appointment letters were issued in which itwas stipulated that the inter se seniority of the teachers, soappointed, will depend upon the merit list as published by BiharPublic Service Commission and same was required to befollowed for all future course of action including for the purposeof promotion. It is further stated that since the date ofappointment of petitioners and private respondent were thesame, i.e., 24.9.1994 and both got Matric trained scale w.e.f.1.10.2003, final seniority list for Graduate Trained (Arts) wasprepared vide letter no.3158 dated 15.12.2012 on the basis oftheir date of joining at the school, as a result of which, privaterespondent, whose date of joining had been earlier were rankedhigher in the seniority list and admittedly the seniority list wasnot prepared in terms of merit list of Bihar Public ServiceCommission, in such circumstances, respondent nos.4 and 5vide letter no.2257 dated 4.9.2018 sought guideline from theDirector of Primary Education.

17. Subsequently, 8[th] supplementary counter affidavit wasfiled on behalf of respondent nos.4 and 5 in response to orderdated 10.9.2018 in which it was admitted that in terms of Rule10 and 11 of Bihar Elementary School Appointment Rule, 1991seniority list was to be prepared on the basis of marks secured inthe written examination, as such, merit list of BPSC wasrequired to be followed for the purpose of promotion at thedistrict level but same was not done. It is further stated that ifseniority list would have been prepared on the basis ofrecommendation made by BPSC, the petitioners would haveranked higher compared to the respondents.

18. Heard learned counsel for the petitioners, learnedcounsel for the State as well as learned counsel for privaterespondents. In view of subsequent stand taken by Stateauthorities that in promotion from Matric Trained Scale toGraduate Trained Scale, the inter se seniority, as per merit listof BPSC should be followed and same was also required to befollowed in terms of of letter issued by the Director, PrimaryEducation letter no.571 dated 24.08.2012 and letter no.592dated 10.5.2013 but ignoring said directions, the DistrictPromotion Committee prepared the seniority list erroneously onthe basis of date of birth / date of joining which cannot be countenanced as seniority list has to be prepared on the basis ofinter se merit as existing in Matric Trained Scale, i.e., pre-promotional seniority list and not on the basis of date of birth ordate of joining. There has to be uniformity in preparation ofGraduate Trained Teacher seniority list in all districts and inthe most of districts, seniority list has been prepared in terms ofdirections issued by letter no.571 dated 24.08.2012 and letterno.592 dated 10.5.2013 issued by the Directorate, PrimaryEducation Department, however, same was not followed in thedistrict of East Champaran but subsequently they have realizedthat they have committed error in preparing the seniority list ofGraduate Trained Teacher.

19. However, as only petitioners have approached thisCourt against the preparation of seniority list on the basis ofdate of birth/date of joining and not on the basis of merit listpublished by BPSC, i.e., pre-promotional seniority list, the writpetition, as far as it relates to petitioners, is allowed and theyare directed to be placed in the seniority list, as determined bythe authorities in their comparative chart prepared pursuant toorder dated 10.09.2018 filed through 8[th] supplementary counteraffidavit, as contained in Schedule A of the said affidavit. Therelief(s) granted is confined to petitioners only.

20. The writ petition is allowed to the extent as indicated above.

(S. Kumar, J)

Sanjay/-

AFR/NAFRNAFRCAV DATENAUploading Date05.02.2021Transmission DateNA