Manoranjan Ojha vs The State Of Jharkhand
2021 Latest Caselaw 4286 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cont. Case (Civil) No. 611 of 2019

Manoranjan Ojha, son of late Ram Jatan Ojha, resident of East Plant Basti,
Punjabi Lane, PO&PS-Burma Mines, District-East Singhbhum at
Jamshedpur                                                 ... Petitioner
                              vs.

1. The State of Jharkhand
2. Mr. Amrendra Pratap Singh, son of not known to the petitioner, Principal
Secretary, School Education and Literacy Department, having its office at
MDI Building, Dhurwa, PO&PS-Dhurwa, District-Ranchi
3. Mr. Binod Kumar, son of not known to the petitioner, the Director,
Primary Education, School Education and Literacy Department, having its
office at MDI Building, Dhurwa, PO&PS-Dhurwa, District-Ranchi
4. Mr. Braj Mohan Kumar, son of not known to the petitioner, the District
Superintendent of Education, Jamshedpur, PO&PS-Jamshedpur, District-
East Singhbhum                                       ... Opposite Parties
                              -------

(Through V.C )

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner : Mr. Rahul Kumar, Advocate For the State : Ms. Jyoti Nayan, AC to GP-V

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Order No. 10/Dated: 20th November, 2021

In W.P.(S) No. 6625 of 2016, the following order was passed by the writ Court on 30th January 2017:

"3. In W. P. (S) No. 6135 of 2015 this Court has passed an order in the following terms:

3. Promotion to the petitioners is regulated under the Bihar Taken Over Elementary School Teachers Promotion Rules, 1993, which is in operation in the State of Jharkhand also. Rule 4 lays down conditions for promotion and Rule 5 provides for minimum educational and training qualifications as well as minimum tenure of service for promotion in different grades. Rule 7 of 1993 Rules provides that a draft of seniority list for promotion shall be prepared by the end of the month of January of each year. The manner for preparation of draft seniority list for promotion has been laid down under Rule 7. In terms of Rule 8 inter-se seniority in the same grade is decided. The Secretary, School Education and Literacy Department, Government of Jharkhand-respondent no. 2 has filed affidavit dated 06.12.2016 narrating the procedure for preparation of draft seniority list and the manner in which promotion is made.

2 Cont. Case (Civil) No. 611 of 2019

4. The respondent no. 2 has asserted that the exercise for preparation of draft seniority list and promotion would take three months' time. Since orders in individual cases have subsequently presented serious difficulty and many a times several writ petitions are filed by other employees claiming themselves senior to the petitioners who had approached the Court prior in time, no positive direction can be issued in the instant writ petition for considering claim of the petitioners alone for promotion. In my opinion, 1993 Promotion Rules are required to be followed scrupulously to avoid unwanted dissatisfaction amongst government employees which have led to unwarranted litigations. In view of the affidavit by the respondent no. 2, it is hereby ordered that mandate of Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 shall be followed in its letter and spirit,however, subject to just exceptions, in all the districts of the State of Jharkhand.

5. In order to promote transparency and accountability in the working of every public authority, and for providing the practical regime for right to information for citizens to secure access to information under the control of the public authorities, the Right to Information Act, 2005 was enacted. Section 3 of 2005 Act provides that all citizens, subject to the provisions of the Act, shall have the right to information. Section 4 provides that every public authority shall maintain its records duly catalogued and indexed in a manner and the form which facilitates the right to information under the Act. Sub-section 2 to Section 4 provides that every public authority shall constantly endeavor to take steps to provide as much information suo-moto to the public at regular intervals through means of communications, including internet, so that the public have minimum resort to the use of 2005 Act to obtain information. Preparation of seniority list may be objected to by any individual teacher and accordingly, the provisional seniority list prepared under Rule 7 shall be put on the Website of the Department and there shall be provision for submitting on-line objections, besides written objection to the Establishment Committee. Promotions on the vacancies which have arisen shall be made strictly according to the seniority list and it shall also be put on the Website.

4. In the light of order passed in W. P. (S) No. 6135 of 2015, the claim of the petitioner is not required to be adjudicated by this Court independently and accordingly, the writ petition stands disposed of in terms of order passed in W. P. (S) No. 6135 of 2015."

2. Alleging willful disobedience and non-compliance of the aforesaid order passed by the writ Court, Contempt Case (Civil) No. 355 of 2017 was filed by the petitioner.

3. On 15th February 2019, the following order was passed in the 3 Cont. Case (Civil) No. 611 of 2019

aforesaid contempt case:

"The petitioner has alleged willful violation of the order dated 30.01.2017 passed in W.P (S) No.6625 of 2016 which was filed by him seeking a direction upon the respondents to grant him Promotion/Grade in terms of Bihar Taken Over Elementary School Teachers Promotion Rules, 1993.

2. The petitioner has pleaded that he who was granted Graduate Trained Scale, that is, Grade-IV w.e.f 01.07.1992 became eligible for grant of Grade-VI w.e.f 01.07.2010 under Rule 5(3) and subsequently for Grade-VII.

3. In view of the order passed in W.P (S) No.6135 of 2015 in the proceeding of which the Secretary, School Education and Literacy Department, Government of Jharkhand has filed an affidavit, the writ petition filed by the petitioner was disposed of with a direction to the respondents to take steps in the matter in the light of the order passed in W.P.(S) No.6135 of 2015. However, by the time a final decision was taken on grant of promotion in Grade-VI and Grade-VII to the teachers like the petitioner in terms of Bihar Taken Over Elementary School Teachers Promotion Rules, 1993, the petitioner superannuated from service on 31.01.2016.

4. It is not denied that the petitioner is eligible and entitled for promotion in the higher Grades.

5. This is the common ground that promotion to a teacher in terms of Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 is granted on consideration of the eligibility of the candidates vis-a-vis the vacant posts. In the affidavit filed on behalf of the contemnors, it is admitted that two teachers juniors to the petitioner have been promoted to Grade- VII, however, the petitioner could not be extended benefit of promotion in the higher Grades as he had by that time superannuated from service; the decision of the District Education Establishment Committee is dated 28.01.2017 by which 14 teachers working in Grade-IV were promoted in Grade-VII. The contemnors have taken a plea that those 14 teachers were in service at that time and in terms of the extant rules promotion with a retrospective date cannot be granted. The respondent-contemnors have relied on the government letter dated 04.04.1985 which refers to Rule-58 of Jharkhand Service Code, 2001 and Rule-74 of Bihar Financial Rules to contend that financial benefit of a promotional post can be granted to the government employee from the date he has assumed the charge of the post.

6. In essence, the stand taken by the respondent-contemnors is that the petitioner who had superannuated from service before his claim for promotion was considered, cannot be granted promotion in higher Grades.

7. In the beginning, when notice was issued on 12.12.2018, the judgment in "Union of India and another Vs. Hemraj Singh Chauhan and Others" reported in (2010) 4 SCC 290 was referred by the learned counsel for the petitioner to demonstrate that the decision not to promote the petitioner in the higher 4 Cont. Case (Civil) No. 611 of 2019

grades was irrational and illegal.

8. In "Union of India and Another Vs. Hemraj Singh Chauhan and Others" (supra), the Hon'ble Supreme Court has observed thus:

"35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State.

36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.

37. In Govt. Branch Press v. D.B. Belliappa a three-Judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomised under Articles 14 and 16 is "fairness founded on reason".

38. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion have been defeated by the acts of the Government and if not of the Central Government, certainly the unreasonable inaction on the part of the Government of State of Uttar Pradesh stood in the way of the respondents' chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy."

9. In the first place, promotion in different Grades under the Rules is not promotion as the expression "promotion" is known in the common parlance. Admittedly, different Grades are not different and distinct posts except that on grant of Grade-VI and Grade-VII a teacher becomes eligible for the post of Head- master. The promotion in different Grades under the Bihar Rules of 1993 is primarily grant of higher pay-scales. Therefore, there is no application of Rule 58 of the Code or Rule 74 of the Financial Rules.

10. Secondly, it is absurd to plead that promotion from a retrospective date cannot be granted. It is common knowledge that if not always, mostly, promotion is granted from a retrospective date because it relates back to the date of vacancy. It is really rare that against an anticipated vacancy promotion is granted which, of course, again would be effective from the date when the vacancy arises.

11. Thirdly, the petitioner, whose eligibility and suitability for grant of Grade-VII have not been denied and at least two persons junior to him have been granted Grade-VII, has been denied this benefit solely for the reasons attributable to the respondents; it was only after the orders passed by the writ- Court that some semblance of stream-lining the process of promotion was restored.

12. Apparently, the stand taken by the respondent-contemnors is 5 Cont. Case (Civil) No. 611 of 2019

not sustainable.

13. There are a catena of judgments of the Hon'ble Supreme Court in which the law on the subject has been explained; one being in "Major General H.M. Singh, VSM Vs. Union of India and another" reported in (2014) 3 SCC 670. It has been held that the right to promotion of an employee has attained the status of a constitutional right and the legitimate expectation of a government servant cannot be killed on a ground that by the time a decision was taken the employee had superannuated from service. It has been held that on account of laches and delay if a decision on promotion of an employee could not be taken before the employee had retired, the benefits accruing to the employee shall be accorded to him by granting notional promotion to him which shall be taken into account for calculating the post-retiral benefits to the employee. In "Major General H.M. Singh", denial of promotion to the Major General to the post of Lt. General - vacancy for the post of Lt. General was available on the date of retirement, has been held illegal.

14. In view of the aforesaid discussions, with a note of caution to the respondents, this contempt case is closed with a direction to the Secretary, Department of School Education and Literacy, Government of Jharkhand to ensure that necessary order is issued within four weeks granting notional promotion to the petitioner in Grade-VII, on the basis of which his post-retiral benefits shall be calculated and paid."

4. At the time when W.P.(S) No. 6625 of 2016 was filed by the petitioner, he was in service. Before this writ petition was disposed of, this Court had already issued a direction in W.P.(S) No. 6135 of 2015 for undertaking an exercise in all the districts in the State of Jharkhand for promotion to all eligible teachers. In Contempt Case (Civil) No. 355 of 2017, the contemnors took a stand that the petitioner who had superannuated from service cannot be granted promotion from a retrospective date. Apparently this was a technical plea taken by the respondents, overlooking their own latches and negligence. Since the petitioner was otherwise eligible for promotion and two teachers junior to him were granted promotion, this Court after elaborating upon the law on the subject, issued direction to the contemnor-Secretary to grant notional promotion to the petitioner. The said order has been passed on the basis of settled position in law and the admitted facts.

5. Against the order dated 15th February 2019 passed in Contempt Case No. 355 of 2017, the contemnor preferred LPA No. 736 of 2019 which remained pending in defects for about two years.

6 Cont. Case (Civil) No. 611 of 2019

6. On 15th September 2021, when the appeal came for hearing before the Hon'ble Division Bench, the learned State counsel sought adjournment for filing additional documents. On 29 th September 2021, hearing of the appeal was again deferred at the instance of the learned State Counsel.

7. Today, the learned State counsel states that on 27th October 2021 notice was issued to the respondent in LPA No. 736 of 2019.

8. On 27th October 2021, the following order was passed by the Hon'ble Division Bench:

"Heard learned counsel for the State.

Issue notice to the sole respondent on the point of limitation as well as admission and stay, through registered post with A/D as also under ordinary process, for which requisites etc. must be filed within a week i.e. by 03.11.2021."

9. There is no order of the Hon'ble Division Bench staying operation of the order dated 15th February 2019, still, generally the Courts exercising contempt jurisdiction do not proceed further in the matter provided the main appeal has been taken up for hearing. But what has transpired from the discussions is that the Letters Patent Appeal is yet to be heard as the delay in filing the appeal has not been condoned by the Hon'ble Division Bench and, therefore, there is no appeal in the eyes of law as on date against the order dated 15th February 2019.

10. There was inordinate delay in filing the Letters Patent Appeal, which was filed more than two years and eight months after disposal of the writ petition on 30th January 2017. The matter was not prosecuted diligently by the appellant and in the meantime two more years passed before the defects pointed out by the Registry were removed. Whatever may be the reasons - and, in fact, this Court does not find any justifiable reason - the manner in which the appellant has moved in this matter puts a question mark on its bonafide.

11. Above being the factual scenario, this Court is of the opinion that there is no excuse for the contemnors not to comply with the aforesaid directions issued by this Court dated 15th February 2019.

12. The show-cause reply dated 07th September 2021 filed by the 7 Cont. Case (Civil) No. 611 of 2019

contemnor is rejected.

13. The contemnors are directed to comply with the Court's directions, within eight weeks.

14. With the aforesaid direction, proceeding in this contempt case is closed.

(Shree Chandrashekhar, J.)

Tanuj/-