Ashok Kumar Singh vs The State of Bihar

Mihir Kumar Jha, J.—Heard learned counsel for the parties.

In this writ application the petitioner has assailed the order passed by the Director, Primary Education contained in memo no. 749 dated 06.06.2013, whereby and whereunder, respondent no. 5 has been declared to be senior to the petitioner on the post of assistant teacher in primary School and consequently has been also held to be entitled to work as Incharge Headmistress of Maner Girls Middle School Maner (hereinafter referred to as the School).

Learned counsel for the petitioner in support of the aforementioned prayer has basically concentrated on two aspects namely, that on account of the appointment of the petitioner as an assistant teacher in the middle School on 08.04.1982, he had ranked senior to respondent no. 5 because she had sought her inter district transfer to Patna district and had joined in Patna district only on 12.07.1982 and thereby losing her earlier seniority even though she was appointed as a teacher on 11.08.1980. Additionally, it has also been highlighted that since the petitioner was already promoted in the I.Sc trained pay scale, he was bound to be reckoned senior to respondent no. 5 because she was only promoted in the matric trained pay scale. In this regard, learned counsel for the petitioner has also drawn attention of this Court towards various orders passed by the District Programme Officer (Establishment), Patna and the Regional Deputy Director of Education, Patna, whereby and whereunder, the petitioner only on account of his being reckoned senior to respondent no. 5 was authorized to work as Incharge Headmaster of the School.

Per contra, learned counsel for respondent no. 5 has explained that there would be no question of the petitioner becoming senior on account of inter district transfer of respondent no. 5 because the petitioner at the time of his appointment was an untrained teacher whereas respondent no. 5 was a trained teacher and thus when she walked into the cadre of assistant teacher of Patna district, she by virtue of her being trained teacher in any event had ranked senior to the petitioner who was only an untrained teacher. It has also been explained that the grant of I.Sc trained pay scale to the petitioner in no way could have affected the inter se seniority of the petitioner because from 01.01.1986 both the post of matric trained teacher and I.A./I.Sc trained teacher were amalgamated under statutory rule making a clear provision for seniority of a matric trained teacher and grant of only three additional increments by way of pay protection to those who had been granted I.A./I.Sc trained pay scale prior to 1.1.1986.

Learned counsel for the State also has supported the case of respondent no. 5 by supporting the impugned order passed by the Director, Primary Education. According to him, respondent no. 5 having longer length of service as also being trained was definitely entitled to be reckoned senior to the petitioner.

In the considered opinion of this Court, the issue of seniority between the petitioner and respondent no. 5 would definitely depend on the provision of the statutory rules which were/are in force at the time such an issue of inter se seniority had arisen. Normally, such seniority has to be reflected by preparation of gradation list but none of the parties have brought on record such seniority list of the teachers of the primary/middle School of Patna district. As a matter of fact, it was the temporary/current charge arrangement on the post of acting Headmaster/Headmistress in the School which gave rise to the issue of seniority between the petitioner and respondent no. 5 and when it had remained unresolved by one or the other order passed by the District Programme Officer (establishment), Patna and Regional Deputy Director of Education, Patna, this Court by an order dated 24.1.2013 in a writ petition, C.W.J.C. No. 3862/2012, filed by respondent no. 5 had remitted the matter back to the Director, Primary Education with a direction to him to decide the issue of seniority between the petitioner and respondent no. 5. The impugned order dated 6.6.2013, declaring the Respondent no. 5 senior to the petitioner in fact has been passed by the Director, Primary Education only by way of compliance of the aforesaid direction of this Court dated 24.01.2013 passed in C.W.J.C. No. 3862 of 2012.

From the materials on record, it is quite clear that when the petitioner had entered in service on 08.04.1982, he was an untrained teacher. The appointment of untrained teacher in middle school even as per the Rules which were prevalent in the year 1982, did not envisage grant of seniority over a trained teacher.

As is well known prior to 1986 there were post of matric trained teacher I.A./I.Sc trained teacher and B.A. trained teacher but those teachers who had no qualification of training were to rank junior to any trained teacher. Thus, when the respondent no. 5 who had been a trained teacher ever since her first date of appointment on 11.08.1980 had been transferred to Patna district on 12.07.1982, she had walked in with seniority as a trained teacher and could have ranked junior in Patna district only to a trained teacher who were working in the district cadre of assistant teacher in Patna district. The petitioner however was definitely not a trained teacher as on 11.07.1982, so as to stake seniority over respondent no. 5.

The next leg of submission of learned counsel for the petitioner that the petitioner became trained in the year 1985 and got matric trained pay scale w.e.f. 08.08.1985 also will not make the petitioner senior because as a matric trained teacher, respondent no. 5 had carried over her seniority even in Patna district upon her joining as a matric trained teacher w.e.f. 12.07.1982. Thus, as a matric trained teacher also the petitioner would rank junior to respondent no. 5.

Coming to the next submission that as because the petitioner had been given promotion in the I.Sc trained pay scale w.e.f. 08.08.1997, he became senior to the respondent no. 5 because she was only continuing in the matric trained pay scale one has to take note of the statutory Rules i.e. Bihar Taken Over Elementary School Teachers Promotion Rules-1993 (hereinafter referred to as 1993 promotion Rules) which was retrospective in nature and had come into force w.e.f. 01.01.1986. The aforesaid 1993 Promotion Rules in no uncertain terms under Rule-8 had made it clear that only such I.A./I.Sc trained teacher would rank senior to the matric trained teachers whose promotion in the I.Sc trained pay scale was notified w.e.f. any date prior to 01.01.1986. To that extent Rule-8 of 1993 Promotion Rules being relevant is quoted hereinbelow:-

Inter-se Seniority in the same grade.-Inter se seniority of teachers working in the same grade shall be decided under the following standard-

(1) The date of getting the said grade shall be the basis for determining the seniority. If the date of getting the grade is the same, then date of getting lower grade shall be the basis and accordingly date of getting lowest grade, wherever required, shall be the basis:

(2) In case of the date of getting the grade is the same, date of birth shall be the basis;

(3) In case of date of birth being the same, in that case inter-se seniority shall be determined according to the alphabetical order of their names in Roman script.

In view of the aforementioned Rule and the admitted fact that the petitioner had been promoted in the I.Sc trained pay scale only in the year 1997, he would not be entitled to claim seniority over respondent no. 5, who as noted above had been in fact appointed as matric trained teacher in the year 1980 and also became teacher in the matric trained pay scale of the cadre of Patna district w.e.f. 12.07.1982. These aspects in fact have been correctly gone into by the Director, Primary Education in the impugned order relevant portion whereof reads as follows:-

Let it be noted that some typographical error in the last paragraph in the date of grant of matric trained pay scale of the petitioner as 08.08.1995 in place of 08.08.1985 has been also corrected by corrigendum dated 11.06.2013 which has been produced by learned counsel for the respondent no. 5 and has been placed on record of this case, relevant portion whereof reads as follows:-

As a matter of fact, in the writ application none of the relevant dates of grant of matric trained pay scale to the petitioner and respondent no. 5 have been questioned by the petitioner and therefore, this Court will have no difficulty in holding that as a matric trained teacher, respondent no. 5 was senior to the petitioner and the grant of I.Sc trained pay scale to the petitioner could have ennured only the benefit in terms of pay to him which also got merged on account of the merger of matric trained pay scale with I.A./I.Sc trained pay scale in terms of 1993 Promotion Rules. As a matter of fact, respondent no. 5 was drawing higher salary even in the matric trained pay scale as against the petitioner in the I.Sc trained pay scale, an aspect which was noted by this Court in the earlier order dated 24.01.2013 passed in C.W.J.C. No. 3862 of 2012 recording that the petitioner was getting basic pay of Rs. 19,970/- as against respondent no. 5 getting basic pay of Rs. 20,300/-.

In view of the aforementioned discussion, this Court does not find any error in the impugned order passed by the Director, Primary Education declaring respondent no. 5 to be senior to the petitioner. It has to be also kept in mind that by virtue of seniority of respondent no. 5 over the petitioner, she is definitely entitled to work as Incharge Headmistress in the School in question which is a Girls School. If the petitioner does not find convenient to work in Girls School under respondent no. 5, he may opt for his transfer as is prescribed in Bihar Rajaya Rajkiyakrit Prarambhik Vidyalaya Shikshak (Asthanantaran) Niyamawali-2006 by way of exercising of option of transfer to every teacher twice in his service career. For the moment, the petitioner being junior to respondent no. 5 is not entitled to be even declared acting Headmaster of the School in question.

Thus, the direction given by the Director, Primary Education for continuation of respondent no. 5 as Incharge Headmistress of the School would also require no interference from this Court. In fact it goes without saying that after the impugned order of the Director, Primary Education the earlier order passed by the subordinate authorities in favour of the petitioner for allowing him to work as Incharge Headmaster of the School has stood superseded and the petitioner cannot claim to work on the post of Incharge Headmaster of the school specially, when this Court itself had stayed the operation of the order passed by the Regional Deputy Director of Education authorizing the petitioner to work as Incharge Headmaster. Now, that respondent no. 5 has been also declared to be senior to the petitioner in the impugned order, the earlier order passed by the Regional Deputy Director of Education dated 20.01.2012 can no longer remain in operation and that order must be and is hereby quashed with a declaration that the respondent no. 5 being senior to the petitioner would continue to work as Incharge Headmistress of the School till a regular permanent Headmaster is posted in the School in question.

In the result, this application fails and is, accordingly, dismissed.