Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 2555 of 2008 ------- Basudeo Goswami, son of Late Vishwanath Goswami, at present Assistant Teacher, Middle School, Kustaur, Dhanbad, P.O Kustaur, P.s. Kenduadih, District: Dhanbad. ... Petitioner Vs. 1.State of Jharkhand through the Secretary, Primary Education, Human Resources Development Department, Government of Jharkhand, Ranchi 2.Director, Primary Education, Human Resources Development Department, Government of Jharkhand, Ranchi 3.Deputy Commissioner, Dhanbad. 4.District Superintendent of Education, Dhanbad. .… … ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. Afaque Ahmad, Advocate For the Respondents : Mr. Sarvendra Kumar, J.C to S.C. (L &C) ------ 08/ Dated:
1. t November, 2017 Per Pramath Patnaik, J.: In the instant writ application, the petitioner has inter alia prayed for direction upon the respondents to grant promotion on the post of Headmaster with all consequential benefits.
2. Heard Mr. Afaque Ahmad, learned counsel for the petitioner and Mr. Sarvendra Kumar, J.C to Mr. Binod Singh, learned S.C. (L&C) for the respondents-State.
3. Learned counsel for the petitioner submits that petitioner initially joined as Assistant Teacher, Primary School, Petia, Dhanbad on 02.07.1970 against the sanctioned post. It has further been submitted that at the time of appointment, he was Matric trained, however, later on, in the year 1972, he obtained the degree of I.A, and accordingly, he was promoted to I.A. Trained Scale. Consequent thereupon, he joined Middle School, Ankdwara, Nirsa-2, Dhanbad on 3.10.1973. Later on, in the year 1979, the petitioner also obtained the degree of B.A. 2 4. Learned counsel for the petitioner further submitted that in spite of promotion in I.A. Trained Scale, when the petitioner was not extended benefit, he represented before respondent no. 2, who submitted his report vide memo dated 30.07.1984, wherein it is stated that the petitioner would not get the financial benefit from retrospective effect but he will get the benefit of seniority. Accordingly, vide office order dated 25.1.1985, he was promoted to I.A. Trained Scale. But, in compliance of order dated 11.03.1985 passed in C.W.J.C No. 126 of 1985(R), the petitioner's promotion was stayed vide memo dated 18.05.1985 but, later on a decision was taken by District Establishment Committee, Dhanbad on 05.11.1985 for payment in I.A. Trained Scale from 1.04.1982. The petitioner, being aggrieved with the date from which it was made effective represented before the authority and accordingly, the petitioner was given the benefit of promotion from the date of joining in promotional post from 30.03.1973 vide memo dated 6.3.987. But, again, the respondent no. 2 vide order dated 21.12.1987 cancelled memo dated 6.3.1987 and vide order dated 5.8.1988 petitioner's claim for promotion in I.A. Trained scale was granted w.e.f 01.12.1976. It is averred that thereafter, the petitioner was given time bound promotion vide memo dated 30.12.1989. Thereafter, vide order dated 10.08.1998, the petitioner was granted B.A. Trained Scale. By passage of time, when the petitioner became eligible for the post of Headmaster, he pressed his claim before respondent no. 2 in the year 2005.
5. Referring to Annexure 10 to the writ application, learned counsel for the petitioner submitted several persons junior to him have been given promotion but the petitioner has been denied to enjoy the fruit of promotion. Learned counsel for the petitioner 3 further referring to Annexure 12 and 12/A of the writ application, and gradation list of Graduate trained General Category Teacher submitted that one Smt. Nirmala Mishra, who was at serial no. 65 was granted promotion on the post of Headmistress and has been granted monetary benefits w.e.f 1.4.1984 but the petitioner, even being placed at serial no. 35 of the gradation list, has been subjected to hostile discrimination. In this context, learned counsel for the petitioner submitted that the petitioner is claiming his promotion from the year 1980 as by that time he had obtained B.A degree. Learned counsel for the petitioner further submitted that since on 31.07.2008, the petitioner has superannuated from services, now the petitioner is entitled to get monetary benefits. Referring to reply to counter counter affidavit, learned counsel for the petitioner submitted with vehemence that as the promotion of the petitioner was due from 1980 itself the Promotion Rules 1993, which was made effect from 1.1.1986 is not applicable in the case of petitioner.
6. In the case at hand, even after a decade, the respondent did not file the counter affidavit. On 15.09.2017, when the matter was taken up, learned counsel for the State took a specific plea that inadvertently counter affidavit could not be filed in this Court, however, the same was served upon the petitioner, basing on which, the petitioner had also filed reply to counter affidavit and sought last chance to file the same. But, even after granting sufficient time and specific order being passed to the effect that if no counter affidavit is filed by the next date, the matter shall be disposed of on the basis of averments made in the writ application, the respondents did not bother to file the counter affidavit. It is a very sorry state of affairs in conducting the case. 4 Hence, this Court is constrained to proceed with the matter without there being counter affidavit on record. However, learned counsel for the respondents-State is permitted to make his submission in the matter.
7. Mr. Sarvendra Kumar, J.C to S.C. (L &C) submits that as per Promotion Rules, 1993 the petitioner did not possess the requisite qualification, hence, he was denied promotion and furthermore, now the petitioner has retired, hence, no benefit of promotion can be extended to him. Learned counsel for the respondents-State further submitted that even otherwise also now the promotion cannot be given retrospectively.
8. Having heard learned counsel for the parties at length and on perusal of the materials available on record, it appears that the petitioner initially joined as Assistant Teacher on 02.07.1970 finally got I.A trained Scale vide order dated 5.08.1988 w.e.f 01.12.1976 and further he got B.A. Trained scale vide order dated 10.08.1998 w.e.f 01.01.1987. Here, emphasis has been made that persons, junior to the petitioner, in particular, Smt. Nirmala Mishra, who was placed at serial no. 65 in the Gradation list of Graduate trained General Category Teacher, has been granted promotion w.e.f 1.4.1984 with all consequential benefit but the even being much senior to him being placed at serial no. 35 has been denied promotion.
9. In such view of the matter, in the interest of justice, the respondents, in particular, respondent no. 4 is directed to take a decision afresh in the matter of promotion of petitioner by placing the same before District Establishment Committee or the appropriate authority within a period of two months, taking into consideration the observations made by this Court and averments 5 made in the writ application; from the date of receipt/production of copy of this order and if the petitioner is found eligible to get the promotion and/or other consequential benefit, the same shall be extended to him within a period of four weeks thereafter.
10. With the aforesaid observations and directions, the writ petition stands disposed of. (Pramath Patnaik, J.) Alankar/-