Sanjay Kumar Mukherjee & Anr vs The State of Jharkhand & Anr

In the accompanied writ application, the petitioner has inter

alia prayed for quashing officer order dated 23.01.2007 whereby

promotion given to the petitioner on the post of Head Master vide

memo dated 31.08.2004 has been cancelled.

The facts, as delineated in the writ application, in a nutshell

is that initially the petitioner was appointed as Assistant Teacher

in Matric Trained Scale on 30.11.1972. Thereafter, the petitioner

was given I.A trained scale on 01.04.1976 and B.A. trained scale

w.e.f 1.04.1981 vide office order dated 18.11.1987. But some

persons junior to the petitioner were granted B.A trained scale

w.e.f 1.4.1980; the petitioner aggrieved thereof represented before

the authorities concerned, who after considering the

representation of the petitioner found the claim of the petitioner

genuine and accordingly vide corrigendum dated 27.4.1998, it was

made effective from 01.04.1980. It has further been averred that

in the meantime, in pursuance of decision of the District

Education Establishment Committee, some juniors, namely Mr.

Umesh Prasad Yadav and Murli Manohar Mishra were promoted

to the post of Head Master, and the petitioner has been denied

promotion to the said post. The petitioner aggrieved thereof,

represented before the respondents-authorities, on which, the

District Establishment Committee recommended to grant

promotion to the petitioner on the post of Head Master vide order

dated 30.10.2000. Accordingly, the petitioner was promoted on

the post of Head Master notionally w.e.f 01.04.1983 and posted as

Head Master in Urdu Kanya Madhya Vidyalaya, Kalipara, the date

from which the juniors to the petitioner have been promoted.

Thereafter the petitioner was also granted senior scale of pay vide

memo dated 07.04.2001 since the juniors to the petitioner have

been granted.

But, all of a sudden, the then District Superintendent of

Education issued show cause notice dated 05.07.2002 to the

petitioner stating therein that under what condition, he has been

posted as Head Master of Urdu Kanya Madhya Vidyalaya, Kalipara

since the post of Head Master is not sanctioned for that school. In

response thereof, the petitioner submitted his detailed reply

annexing all relevant documents, but the respondent-D.S.E being

dissatisfied with the reply passed order dated 17.08.2002 whereby

promotion granted to the petitioner was cancelled. Being

aggrieved, the petitioner knocked the door of this Court by filing

W.P. (S) No. 5219 of 2002, which was disposed of vide order dated

02.06.2003 with a direction to respondents to consider the case of

the petitioner for promotion with effect from the date he was

eligible or junior was so promoted. But, when no order was

passed, the petitioner preferred Cont. Case (Civil) No. 861 of 2003

and during pendency of the contempt petition, the petitioner was

granted promotion, with certain conditions. But, thereafter the

respondents purposely set up an enquiry as to whether the

petitioner has been given promotion under 1993 Rules or else,

which resulted in issuance of memo dated 23.01.2007, whereby

promotion given to the petitioner on the post of Head Master was

cancelled.

Learned counsel for the petitioner referring to notification

dated 15.09.1981 issued by Education Department, Government

of Bihar submitted that for promotion in Grade-II the criteria

fulfilled by the petitioner will be governed by the date on which the

persons/employees were promoted in Grade-III. It has further

been submitted that the stand taken by the respondents that the

petitioner cannot be promoted in view of 1993 Rules has no

bearing on the petitioner as 1993 Rule is made applicable w.e.f

1.1.1986 whereas the petitioner got promotion much before that.

Learned counsel for the petitioner further submitted that Hon''ble

Court in W.P. (S) No. 5219 of 2002 taking cognizance of the fact

persons junior to the petitioner have already been promoted

directed the respondents to grant promotion to the petitioner

according to the seniority, which the respondents initially followed

and granted promotion. But, later on only in order to harass the

petitioner passed the impugned order.

Reiterating the averments made in the counter affidavit,

learned counsel for the respondents submitted that the case of the

petitioner was scrutinized by the Establishment Committee and it

was found that the petitioner does not fulfill the criteria of five

years in Grade IV and further he does not fulfill degree of Post

Graduation, as required for promotion to the post of Head Master,

hence his promotion was cancelled. Learned counsel for the

respondent further submitted that since the petitioner was

granted B.A. trained scale in 1988 as such for further promotion,

he was to be guided by the Rules of 1993, which was not followed

initially, hence, rightly impugned order has been passed

From the pleadings available on records, it appears that for

the first time, the petitioner approached this Court by filing

C.W.J.C. No. 5219 of 2002 challenging office order dated 17 th

August, 2002 whereby earlier promotion granted to him to the

post of Headmaster w.e.f 1st April, 1983 was cancelled. For better

appreciation, it would be apposite to refer operative portion of

order dated 2nd June, 2003 passed in C.W.J.C. No. 5219 of 2002,

which is quoted herein below:

"In the facts and circumstances, as the petitioner was not promoted on the recommendation of Establishment Committee, this Court is not inclined to interfere with the office order No. 1938 dated 17 th August, 2002, but taking into consideration the fact that a number of juniors to petitioner

have already been promoted to the higher posts of Headmaster without consideration of the case of the petititioner, the Respondents are directed to consider the case of the petitioner for promotion to the higher post of Headmaster w.e.f the date he was eligible or the juniors was so promoted, whichever is earlier." 7. In compliance thereof, the respondents-authorities granted

promotion to the petitioner vide 25.08.2004 with two conditions;

firstly it shall be subject to seniority and secondly, it shall abide

by the decision of the Committee. From perusal of record, it

appears that on the question of seniority, the matter was enquired

up-to higher level and it came to surface that some juniors to him

have been granted promotion. On the other hand, an enquiry was

set up, in which, the enquiry officer came to the conclusion that

his promotion has not been granted according to 1993 Rules.

Though, the petitioner has raised finger on the finding on the

enquiry committee, who gave his finding without giving him

sufficient opportunity to place his case before. However, basing on

the finding of the enquiry officer, impugned order dated

23.01.2007 was passed, without taking into consideration the fact

that some juniors to him have been promoted and observations

made to this effect by this Court in C.W.J.C. No. 5219 of 2002.

Apart from that, from the pleadings available on record, it

further appears that 1993 Promotion Rules was made applicable

w.e.f 1.1.1986; but, taking into consideration the fact that the

petitioner was promoted w.e.f 1.4.1983 on the ground that some

juniors to the petitioner was given promotion and further it is the

respondents, who have came to a finding that some juniors to

them have been promoted; I am of the considered view that Rules

of 1993 shall not apply on the petitioner in the facts and

circumstances of the case.

In cumulative effect of the aforesaid facts and reasons, the

impugned office order dated 23.01.2007 is hereby quashed and

set aside and since now the petitioner has now retired, the

respondents are directed to forthwith extend the consequential

benefits, to which, the petitioner is entitled to.

Accordingly, the writ application stands allowed.