Zaira Nishat Ansari, Bhairab Jamuda vs State of Bihar and Others

S.J. Mukhopadhaya, J.—In the both the cases, as common point of law ts involved, they were heard together and are being disposed of by this common order.

The petitioner, Mrs. Zaira Nishat An-sari (CWJC No. 232/98(R), was appointed in I.A. trained scale on 8th August. 1970 and having became trained in 1977 was granted I.A. trained scale with effect from 1st March 1983. Subsequently, she having passed graduation examination and became entitled for promotion with effect from 1st April 1987. Certain persons including junior to the petitioner, their cases were considered by District Education Establishment Committee and initially promoted to B.A. trained scale vide memo dated 2nd July, 1994 with effect from 1st April, 1987, but the case of the petitioner was not considered for such promotion. Subsequently many of the juniors were also granted promotion to the post of Head Mistress/Head Master, vide order dated 8th March, 1996. The petitioner being aggrieved and having prayed for similar relief; her case was placed before the District Education Establishment Committee and on its recommendation she was promoted to the B.A. trained scale with effect from 1st April, 1987, vide order dated 2nd July, 1994. However, she continued to agitate her claim for promotion to the post of Head Mistress.

The petitioner, Bhairab Jamuda (CWJC No. 269/98(R)) was also appointed as an Assistant Teacher (Science) on 24th February, 1983 in I.Sc. trained scale. Thereafter, the case of this petitioner was considered and on the recommendation of Establishment Committee, he was granted B.Sc. trained scale with effect from 1st April, 1987 vide order date 10th September, 1987. This petitioner passed M.Sc. examination in June 1993 and became eligible for M.Sc. trained scale.

While both the petitioners were functioning, they were provided with similar show cause notices in June 1996 and were asked as to why their promotion to Graduate scale of pay be not cancelled. The aforesaid notices were challenged by both the petitioners in two different writ petitions, however, they were not entertained by this Court and the respondents were directed to dispose of the matter. Thereafter, the matter was placed before the District Education Establishment Committee and on its recommendation, impugned orders both dated 4th November, 1997, and the letters dated 20th January, 1998, have been issued.

The main ground taken by the respondents in the letters both dated 27th September, 1997, as also in their counter affidavit, is that retrospective promotion is not permissible in view of Rule 58 of Bihar Service Code and Rule 74 of Bihar Financial Rules.

Now it is a settled law that promotion can be granted from retrospective dates. Apart from prerogative of the employer, a person accrues right for promotion from retrospective date if junior is promoted and for no fault case of senior is not considered.

The question relating to promotion of persons from retrospective date also fell for consideration before Courts from time to time. In the case of Dr. Paras Nath Prasad Vs. State of Bihar and Others, , this Court taking into consideration the rules laid down in Bihar Service Code and other rules held that a person who is entitled for promotion from retrospective date is also entitled for consequential benefits. Similar view was taken by this Court in the case of Ranjeet Sahay Jamuar and Anr., reported in 1999 (1) All PLR 61. In the said case, this Court held that promotion from retrospective date can be allowed and consequential benefits cannot be denied in all the cases. The provision of Rule 58 of Bihar Service Code and Rule 74 of Bihar Financial Rules are applicable in cases where it is granted promotion in normal course.

In the case of State of Haryana and Others Vs. O.P. Gupta, etc., the Supreme Court while took into consideration that a person can be promoted from retrospective date, held that where an incumbent is not allowed to function against higher posts for one or other action of the authorities, such person is also entitled for consequential monetary benefit.

In the present case, persons junior to the petitioners were promoted without consideration of cases of petitioners. The petitioners were discriminated. For the said reason, the petitioners were granted promotion from retrospective date. In the aforesaid circumstances, the respondents cannot held the same illegal on the basis of Rule 58 of Bihar Service Code, and/or Rule 74 of Bihar Financial Rules.

This apart from the plain reading of aforesaid Rules, if will he evident that promotion from retrospective date can be granted but as on such promotion the financial liability involves, approval of the Finance Department is required to be obtained.

As by the impugned orders have been passed, merely giving reference of Rules aforesaid, without discussion of the situations, I hold the same illegal and set aside the impugned orders.

The respondents are directed to release salary in favour of petitioners in the Graduate scale of pay, as were provided to them prior to the issuance of the impugned orders, and to refund the amount, if any, recovered from the salary of one or other petitioner, within a period of six months from the date of receipt/production of a copy of this order.

Both the writ petitions stand disposed of with the aforesaid observations and directions.

Petition disposed of.