Jharkhand High Court
Ramchandra Prasad vs The State Of Jharkhand Through The ... on 23 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 482 of 2023
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1.Gautam Prasad, aged about 51 years, son of Ram Bishwas
Ram, resident of village Barewa Ram, resident of village
Barewa, P.O. & P.S. Haidernagar, District Palamu,
Jharkhand 822115, presently posted as Assistant Teacher in
Government Middle School Sajwan, P.O. & P.S. Haidernagar,
District Palamu, Jharkhand.
2.Mahendra Ram, aged about 53 years, son of Balkeshwar
Ram, resident of village Tara, P.O.-Koshiyara, P.S.-Hyder
Nagar, District-Palamu, Jharkhand 822115, presently posted
as Assistant Teacher Government Middle School
Kabarakhurd, P.0 & PS Hiadernagar, District Palamu,
Jharkhand.
3.Shashi Shekhar, aged about 45 years, son of Girija Singh,
resident of C/O- sri Janeshwar Singh Muhalla- Aman Chain,
P.O. & P.S. Japala, Husainabad, District Palamu, Jharkhand
822116, presently posted as Assistant Teacher in
Government Middle School Lapeya, P.O.& P.S Haidernagar,
Dist. Palamu, Jharkhand.
4.Dharmendra Kumar, aged about 45 years, son of
Vishundew Ram, resident of village Khargada, P.O. P.S.
Haidernagar, District Palamu, Jharkhand 822115, presently
posted as Assistant Teacher in Government Middle School
Lapeya, Haidernagar, Palamu, Jharkhand.
5.Arjun Ram, aged about 39 years, son of Rameshwar, Ram,
resident of village Dewgan P.O.-Chaparwar P.S. Chhatarpur,
District Palamu, Jharkhand 822113, presently posted as
Assistant Teacher in Government Middle School Khajuri, P.O.
& P.S. Chhatarpur, District Palamu, Jharkhand.
6.Brajesh Kumar Pandey, aged about 46 years, son of
Rajendra Pandey, resident of Panki Road Baralota, Post-GLA
College, P.S. Medininagar, District Palamu, posted District
Jharkhand 822102, presently posted as Assistant Teacher in
Government Middle School Khura Kala, P.O. & P.S Chainpur,
Dist.-Palamu, Jharkhand.
7. Dharmendra Kumar Mehta, aged about 38 years, son of
Umesh Kumar Mehta, resident of village Baralota, Post-GLA
College, P.S. Medinanagar, District Palamu, Jharkhand,
presently posted as Assistant Teacher Government Middle
School, Nawajaipur, P.O. & P.S Patan, District Palamu,
Jharkhand.
8. Vinay Kumar @Binay kumar, aged about 40 years, son of
-1- L.P.A. No. 482 & 478 of 2023
Ramchandra Prasad, resident of village Ladi, Post resident
Halka, son of P.S. Hariharganj, Dist- Palamu, Jharkhand,
presently posted as Assistant Teacher in Middle School,
Dhakcha, P.O. & P.S. - Hariharganj, Dist. Palamu,
Jharkhand.
9. Santosh Kumar Gupta, aged about 45 years, son of Parshu
Saw, resident of village Khajuri Saraiya, P.O. Saraiya, P.S.
Hariharganj, Palamu, Jharkhand presently posted as
Assistant Teacher in Middle School Tendua, P.O. & P.S.
Hariharganj, Dist- Palamu, Jharkhand.
10. Pranav Kumar, aged about 38 years, son of Awadhesh
Kumar Sah, resident of P.O. & P.S. Hariharganj, Dist-
Palamu, Jharkhand presently posted Assistant Teacher in
Middle School Tendua, P.O. & P.S. Hariharganj, District-
Palamu Jharkhand.
11. Vikash Kumar Pandey, aged about 38 years, son of
Chandra Bhushan Pandey, resident of Village Basiwan, P.O.
P.S. Hahiharganj, Dist Palamu, Jharkhand, presently posted
as Assistant Teacher in Middle School, P.O. and P.S Sarsot,
Dist. Palamu, Jharkhand.
... ... PETITIONERS/APPELLANTS
1.The State of Jharkhand
2.Principal Secretary, School Education and Literacy
Department, Govt. of Jharkhand, P.O. and P.S. Dhurwa
District Ranchi, Jharkhand.
3. Director, Primary Education, Govt. of Jharkhand, P.O. and
P.S. Dhurwa, District Ranchi, Jharkhand.
4. Deputy Commissioner-cum-Chairman, District Education
Establishment Committee, Palamu Medninagar, P.O. and P.S.
Palamau, District Daltonganj.
5. Deputy Development Commissioner, Palamu P.O. and P.S.
Palamu, District Daltonganj Palamau,
6. District Superintendent of Education, Palamu, P.O. and
P.S. - Palamau, District Daltonganj.
7.Regional Deputy Director of Education, Palamu Division,
Palamu, P.O. and P.S. Palamau, District Daltonganj.
8.Abdul Rahim, S/o name not known posted as Assistant
Teacher in Upgraded Middle School, Kewal P.O. & P.S-
Haidernagar, Dist- Palamu, Jharkhand.
9.Sushmit Kumar, S/o name not known posted as Assistant
Teacher in Middle School Golhana, P.O. & P.S.-Pandwa, Dist-
Palamu, Jharkhand.
10. Indu Bala, W/o name not known to petitioner posted as
-2- L.P.A. No. 482 & 478 of 2023
Assistant Teacher in Middle School Belwatikar, P.O. &P.S.
Medininagar, Dist- Palamu.
11. Bajrang Mahto, S/o name not known to the petitioner
posted as Assistant Teacher in UpGraded as Assistant Middle
School, Nawadih Tenar, P.O. & P.S.-Lesliganj, Dist- Palamu,
Jharkhand.
12. Leela Kumari, W/o name not known posted as Assistant
Teacher in Boys Middle School Hamidganj, P.O. & P.S.-
Medininagar, Dist- Palamu, Jharkhand.
13.Taufiq Ahmed Ansari, S/o name not known posted as
Assistant Teacher in UpGraded Middle School Golhana, P.O.
& P.S.- Pandwa, Dist- Palamu, Jharkhand.
... ... RESPONDENTS /RESPONDENTS
14.Sunil Kumar S/O-name Not known to the petitioner,
Resident of-Bairiya Chowk, P.O., P.S. and District-
Daltonganj.
15. Amrendra Narayan, s/o Late Indradeo Narayan Resident
of:- Kabristan Road Abadganj,P.O. P.S. and District-
Daltonganj.
16. Mahesh Ram, S/O Late Bhuwneshwar Ram, Resident of-
Belwatika, P.O., P.S. and District-Daltonganj.
17. Anil Kumar Singh, S/O-Not known to the petitioner,
Resident of-Daltonganj, P.O., P.S. and District-Daltonganj.
18. Shyam Deo Mahto S/O Late Madho Mahto, Resident of-
Maurya Nagar Sudna, P.O., P.S. and District-Daltonganj.
19. Nawneet Kumar Sundram, S/O Surendra Nath Pandey
Resident of-Pathar Mil Hamidganj, P.O., P.S. and District-
Daltonganj.
20. Mandwi Singh, W/O Shivnandan Prasad, Resident of-
Bairiya Daltongnaj, P.O., P.S. and District-Daltonganj.
21. Kamaeshwar Ram, S/O Late Muneshwar Ram Resident of
Bairiya Chowk, Daltonganj, P.O., P.S. and District-
Daltonganj.
22. Jagarnath Singh, S/O Late Giriwar Singh, Resident of-At
Adar P.O.-Chainpur, P.S.- Chainpur, District-Palamu.
23. Sudhir Kumar Dubey, Son of Shri Damodar Dubey,
Resident of Village: Palhey Khurd, P.O.: Noudiha, P.S.: Patan,
District: Palamau, presently posted & working as Assistant
Teacher, Govt. Middle School, Charai, P.O. & P.S.:
Chhatarpur, District: Palamau.
24. Anand Mohan Singh, Son of Shri Saryu Prasad Singh,
Resident of Village: Baralota, Ρ.Ο. G.L.A. College,
-3- L.P.A. No. 482 & 478 of 2023
Medininagar, P.S.: Medininagar District: Palamau, presently
posted & working as Assistant Teacher, Govt. Middle School,
Dhakcha, P.O. & P.S. Hariharganj, District: Palamau.
25. Amresh Kumar Singh, Son of Late Nagdev Singh,
Resident of Bank Colony, Sudna, P.O.& District: P.S.:
Daltonganj, District: Palamau, presently posted & working as
Assistant Teacher, Govt. Middle School, Bari, P.O. & P.S.:
Satbarwa, District: Palamau.
26. Arvind Prasad Gupta, Son of Shri Kamta Sah, Resident of
Village & P.O.: Braw Kala, P.S.: Ankorhi Gola, District:
Rohtas (Bihar), presently posted & working as Assistant
Teacher, Govt. Upgraded High School, Kokro, P.O. & P.S.:
Hariharganj, District: Palamau.
27. Sumant Kumar Tiwari, Son of Shri Tulsi Tiwari, Resident
of Village & P.O.: Tolra, P.S.: Rehla, District: Palamau,
presently posted & working as Assistant Teacher, Govt.
Upgraded High School, Kutmu, P.O.: Kutmu, P.S.: Pandu,
District: Palamau.
28. Sunil Kumar Upadhyay, Son of Shri Ramtalika
Upadhyay, Resident of Village: Baralota, P.O.: G.L.A. College,
P.S.: Medininagar, District: Palamau, presently posted &
working as Assistant Teacher, Govt. Upgraded High School,
Bishrampur Pithoura, Ρ.Ο.: Pithoura, P.S.: Pipara, District:
Palamau.
29. Anil Kumar Pandey, Son of Late Dharmdev Pandey,
Resident of Village: Dangai, P.O.: Pandeypura, P.S.: Patan,
District: Palamau, presently posted & working as Assistant
Teacher, Govt. Middle School, Chiyanki, P.O.: Chiyanki, P.S.:
Sadar, District: Palamau.
30. Kamal Nath Tiwary, Son of Late Ramyas Tiwary, Resident
of Village: Sakhua, P.O.: Naudiha, P.S.: Pandwa, District:
Palamau, presently posted & working as Assistant Teacher,
Govt. Middle School, Kundri, P.O.: Kundri, P.S.: Lesliganj,
District: Palamau.
31. Syed Naiyarul Islam, Son of Late Syed Fakhrul Islam,
Resident of Quila Road, Husainabad, P.O.: Japla, P.S.:
Husainabad, District: Palamau, presently posted & working
as Assistant Teacher, Govt. Middle School, Barahi, P.O. &
P.S.: Husainabad, District: Palamau
32. Kanhaiya Prasad, Son of Shri Sitaram, Resident of
Village: Sajwan, P.O.: Kabra Khurd, P.S.: Haidernagar,
District: Palamau, presently posted & working as Assistant
Teacher, Govt. Middle School, Hussainabad, P.O. & P.S.:
Husainabad, District: Palamau.
-4- L.P.A. No. 482 & 478 of 2023
33. Binod Prasad, Son of Late Mundrika Mahto, Resident of
Village: Deori Khurd, P.O.: Cement Factory Japla, P.S.:
Husainabad, District: Palamau, presently posted & working
as Assistant Teacher, Govt. Middle School, Budhua, P.O. &
P.S.: Husainabad, District: Palamau.
34. Krishna Ram, Son of Late Ram Nandan Ram, Resident of
Village: Chawa Chattan, P.O.: Kamgarpur, P.S.: Husainabad,
District: Palamau, presently posted & working as Assistant
Teacher, Govt. Middie School, Deori Khurd, P.O. & P.S.:
Husamabad, District: Palamau.
35. Shakil Ahmad, Son of Muhammed Khushdil, Resident of
Village: DeoriKalan, P.O.: Japla Cement Factory, P.S.
Husainabad, District: Palamau, presently posted & working
as Assistant Teacher, Govt. Middle School, Barepur, P.O.:
Barepur, P.S.: Husainabad, District: Palamau.
36. Vikas Prasad, Son of Shri Baijnath Prasad, Resident of At
& P.O.: Japla, P.S.: Husainabad, District: Palamau, presently
posted & working as Assistant Teacher, Govt. Middle School,
Kukahi, P.O.: Kukahi, P.S.: Haidernagar, District: Palamau.
37. Girwar Ram, Son of Shri Bhangeshwar Ram, Resident of
Village: Bhajaniya, P.O. & P.S.: Mohammadganj, District:
Palanau, presently posted & working as Assistant Teacher,
Govt. Urdu Middle School, Husainabad, Ρ.Ο. & P.S.:
Husainabad District: Palamau.
38. Ranjit Kumar, Son of Shri Gupteshwar Ram, Resident of
Krishnanagar (Ward No. 1), P.O: Japla, P.S Husainabad,
District: Palamau, presently posted working as Assistant
Teacher, Govt. Middle School, Harvey, Japla, P.O.Japla &
P.S.: Husainabad, District: Palamau.
39. Narendra Kumar Pandey, Son of Late Lalan Pandey,
Resident of Village: Tarhasi, P.O. & P.S.: Tarhasi, District:
Palamau, presently posted & working as Assistant Teacher,
Govt. Middle School, Gurturi, P.O.: Gurturi, P.S.: Tarhasi,
District: Palamau.
40. Bashishth Prasad, Son of Shri Yogi Sahu, Resident of
Village: Tarhasi, P.O. P.S.: Tarhasi, District: & Palamau,
presently posted & working as Assistant Teacher, Govt.
Middle School, Tarhasi, P.O. & P.S.: Tarhasi, District:
Palamau.
41. Ram Akhilesh Ram, Son of Shri Dwarika Ram, Resident
of Village: Gagankedi, P.O. & P.S.: Pandu, District: Palamau,
presently posted & working as Assistant Teacher, Govt.
Upgraded High School, Kutmu, P.O.: Kutmu, P.S.: Pandu,
-5- L.P.A. No. 482 & 478 of 2023
Dist. Palamu.
42. Ramesh Mahto, Son of Late Ganauri Mahto, Resident of
Village: Jamune, P.O.: Rajwadih, P.S.: Medininagar, District:
Palamau, presently posted & working as Assistant Teacher,
Govt. Middle School, Mahugawan P.O. & P.S.: Pandu,
District: Palamau.
43. Nand Kumar Pandey, Son of Late Chhathan Ram,
Resident of Village: Banki Khurd, P.O.: Konwai, P.S.: Panki,
District: Palamau, presently posted & working as Assistant
Teacher, Govt. Upgraded High School, Dwarika, P.0. & P.S.:
Panki,District: Palamau.
44. Lalit Kumar Singh, Son of Shri Ramnandan Singh,
Resident of Village: Baliya Kothi, P.O. & P.S.: Nashriganj,
District: Rohtas (Bihar), presently posted & working as
Assistant Teacher, Govt. Upgraded High School, Bishrampur
Pithoura, P.O. & P.S. Pipara, District: Palamau.
45. Binod Prasad Singh, Son of Late Awadesh Singh,
Resident of Village: Beniganjhar, P.O. & P.S.: Tandwa,
District: Aurangabad (Bihar), presently posted & working as
Assistant Teacher, Govt. Upgraded High School, Brwadih,
P.O. & P.S.: Pipara, District: Palamau.
46. Vijay Ram, Son of Late Ramchandra Ram, Resident of
Village: Blaha, P.O. & P.S.: Pipara, District: Palamau,
presently posted & working as Assistant Teacher, Govt.
Upgraded High School, Pipara, P.O. & P.S.: Pipara, District:
Palamau.
47. Nagendar Prasad, Son of Late: Hardev Ram, Resident of
Village: Babandhi, P.O.: Babandhi, P.S.: Pipara, District:
Palamau, presently posted & working as Assistant Teacher,
Govt. Middle School, Turk Teleya, P.O. & P.S.: Chainpur,
District: Palamau.
48. Ramesh Choubey, Son of Late Bharat Choubey, Resident
of Village: Ketat, P.O.: Rehla, P.S.: Bishrampur, District:
Palamau, presently posted & working as Assistant Teacher,
Govt. Middle School, Ketat, P.O.: Ketat, P.S.: Bishrampur,
District: Palamau.
49. Nihal Chand Ram, Son of Shri Ram Vilash Rain, Resident
of Village: Buka, Ρ.Ο.: Makri, P.S.: Bhawnathpur, District:
Garhwa, presently posted & working as Assistant Teacher,
Govt. Middle School, Ketat, P.O.: Ketat, P.S.: Bishrampur,
District: Palamau.
50. Satish Kumar Sinha, Son of Late Kouleshwar Prasad,
Resident of Village: Telhara, P.O.& P.S.: Telhara, District:
Nalanda (Bihar), presently posted & working as Assistant
-6- L.P.A. No. 482 & 478 of 2023
Teacher, Govt. Middle School, Naugada, P.O.: Naugada, P.S.:
Bishrampur, District: Palamau.
51. Vinod Dixit, Son of Late Sarya Dixit, Resident of Rehla,
P.O.: Rehla, P.S.: Bishrampur, District: Palamau, presently
posted & working as Assistant Teacher, Govt. Middle School,
Kadhwan, P.O.: Kadhwan, P.S.: Bishrampur, District:
Palamau.
... ...INTERVENERS/RESPONDENTS
with
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1.Jharkhand Pragatishil Sikshak Sangh, registered under the
Societies Registration Act bearing Registration No.-348 of
2021, having its office at 3B, Ashiana Apartment, Idrish
Colony, Kanta Toli, P.O. Kanta Toli, P.S. Lower Bazar, District
Ranchi through its General Secretary namely Baljeet Kumar
Singh, aged about 47 years, Son of Ram Vijay Singh, resident
of Bardanda, P.O.-Karimandih, P.S.-Mohammadgang, District
Palamau.
2.Cornelius Minj, aged about 48 years, Daughter of Sylvester
Minj, Resident of Birsa Chowk, Kathar Kocha, P.O. Hinoo,
P.S. Doranda, District-Ranchi (Jharkhand).
... ... Petitioners/Appellants
Versus
1.The State of Jharkhand through the Secretary, School
Education and Literacy Department, Government of
Jharkhand, Ranchi having its office at Project Bhawan,
Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi.
2.The Director, Primary Education, School Education and
Literacy Department, Government of Jharkhand, Ranchi
having its office at Project Bhawan, Dhurwa, P.O. Dhurwa,
P.S. Jagannathpur, District Ranchi.
... ... Respondents/Respondents
3.Krishna Sharma, aged about 58 years, Son of Late
Janeshwar Sharma, Resident of Kishoreganj, Roan No. 7,
Harmu Road, P.O. Harmu, P.S. Sukhdev Nagar and District
Ranchi.
4.Sanjay Kumar, Son of Late Royan Sahu, Resident of
Indrapuri Road No. 2, Ratu Road, P.O.-Hehal, P.S. -Sukhdev
Nagar and District-Ranchi.
5.Anand Kumar Lal, Son of Shri Arun Kumar Lal, Resident of
Basant Bihar, Road No. 2, Ratu Road, P.O.-Harmu, P.S.-
Argora and District-Ranchi.
-7- L.P.A. No. 482 & 478 of 2023
6.Shambhu Mishra, Son of Shri Rajeshwar Mishra, Resident
of Sarovar Nagar, Devi Mandap Road, P.O. Hehal, P.S.-
Sukhdev Nagar and District-Ranchi.
7.Srikant Sinha, Son of Late Shyam Sundar Prasad, Resident
of Ansunilay, Nutan Nagar, Lakhe Korra, P.O. Hazaribagh,
P.S.-Sadar and District-Hazazibagh.
8.Sudhir Kumar Dubey, Son of Shri Damodar Dubey,
Resident of New Area Hamidganj, Ward No. 1, P.O.
Daltonganj, P.S.-Daltonganj and District Palamu.
9.Kamlesh Kumar, Son of Late Bharat Pandey, Resident of
31, Tokloroad, New Colony, Shitlamandir, P.O., P.S.
Chakradharpur and District-West Singhbhum.
10.Chandraman Ram, aged about 54 years, Son of Shri Foudi
Ram, Resident of Patra Khurd, Jhargara P.O.-Japla, P.S.-
Hussainabad and District-Palamu.
...Interveners/Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Bhanu Kumar, Advocate
Mrs. Bharti Kumari, Advocate
Mr. Sharad Kaushal, Advocate
Mr. Krishna Shankar, Advocate
Mr. Manish Kumar, Advocate
For the Res-State : Mrs. Darshana Poddar Mishra, AAG-I
For the Private Respondents:
: Mr. Ajit Kumar, Sr. Advocate
: Mr. Rahul Kumar, Advocate
: Ms. Tejaswani Safalta, Advocate
: Mr. Amit Kumr Tiwary, Advocate
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CAV on 03/09/2024 Pronounced on 23/09/2024
Per Sujit Narayan Prasad, ACJ:
1. Since the issues involved in the both the intra-court
appeals are identical and arise out of the common order, as
such with the consent of learned counsel for the parties, the
same were heard together and are being disposed of by this
common order.
-8- L.P.A. No. 482 & 478 of 2023
Prayer:
2. The instant intra-court appeals, under clause 10 of the
Letters Patent, are directed against common order/judgment
dated 26.07.2023 passed by learned Single Judge of this
Court in W.P.(S) No. 3365 of 2020 and W.P. (S) No. 4115 of
2021 and other analogous cases, whereby and whereunder
the prayer made by the writ petitioners in W.P. (S) No. 4115
of 2021 and W.P. (S) No. 3365 of 2020 have been refused to
be interfered with.
3. It is worthwhile to mention here that in W.P. (S) No.
4115 of 2021, the petitioners have made a prayer for
quashing and setting aside decision as contained in Order
No. 619 (Vidhi) dated 26.08.2021 issued by the Joint
Secretary to the Government, School Education and Literacy
Department, Govt. of Jharkhand, in particular Para 3(i) and
(vi), whereby, a decision has been taken for giving promotion
to the teachers, who are working in Grade-3, 4 and 7, on
notional basis and further prayer was made to prepare
seniority list of Grade 4 teachers as per Promotion Rules,
1993 and further consider the case of the members of
petitioner no. 1 for promotion to Grade -4 in terms of
Promotion Rules, 1993.
4. In W.P. (S) No. 3365 of 2020 the prayer was made for
quashing of Memo No. 6255/6256/6257 dated 28.12.2016,
-9- L.P.A. No. 482 & 478 of 2023
whereby many teachers including private respondents were
granted promotion to Grade-IV to the post of Trained
Graduate Teacher [Science/Arts/Language] with retrospective
effect from 01.04.2015 on notional basis; and also made
prayer for quashing para 3(iv) and 3(vi) of the Order No. 619
(Vidhi) dated 26.08.2021, by which decision has been taken
to grant promotion with retrospective effect from the date of
availability of vacancy and further prayer has been made for
preparation of Gradation List as per Rules 7 and 8 of the
Rules, 1993.
Factual Matrix:
5. The brief facts of the case, as per the pleadings made in
the writ petitions, reads as under:
6. The erstwhile State of Bihar framed a Rule vide
notification dated 30.09.1991 known as „Bihar Prarambhik
Vidyalaya Niyukti Niyamavali, 1991‟ [Bihar Primary School
Teachers‟ Rules, 1991] in exercise of power conferred under
Article 309 of the Constitution of India. The Rule 11 of Rules,
1991 speaks that the candidate who possesses teachers
training certificate shall be entitled for matric trained scale
and who does not have teachers training certificate, at the
time of appointment, will be appointed on matric untrained
scale with certain conditions including the provision for
sending the said untrained teachers for in-service Teachers‟
- 10 - L.P.A. No. 482 & 478 of 2023
Training in the Government Colleges. There was further
provision that, immediately after passing of Teachers Training
Examination, the said untrained teachers will be entitled to
get the pay-scale and benefit as Matric Trained Scale.
7. Further, the State of Bihar framed a rule for promotion
of teachers of primary school, under proviso to Article 309 of
the Constitution of India, for promotion of the teachers of
elementary schools taken over by the Government of Bihar in
the name of "Bihar Taken Over Elementary School Teachers‟
Promotion Rules, 1993" (hereinafter referred to as "the Rules,
1993") to be effective from 01.01.1986. After bifurcation of
the State of Bihar, it has been adopted by the State of
Jharkhand by virtue of Bihar Reorganization Act, 2000.
8. The private respondents herein are the appointees
under the prevalent appointment rules of Rules, 1991 under
matric trained/untrained scale and governed by Promotion
Rules, 1993.
9. Thereafter, the Human Resource Development
Department, State of Jharkhand under proviso to Article 309
of the Constitution of India, vide notification no. 1632 dated
05.09.2012, notified a rule in the name of „Jharkhand
Primary School Teacher Appointment Rules, 2012‟ (in short
referred to as 'Rule, 2012').
- 11 - L.P.A. No. 482 & 478 of 2023
10. In consonance with the Rules, 2012 the State of
Jharkhand issued Notification contained in Memo No. 1533
dated 31.7.2014, whereby a decision was taken to appoint
trained graduate teachers for classes 6 to 8 in terms of Right
of Children to Free and Compulsory Education Act, 2009. It
was clarified that 50% of the said posts would be filled up by
direct recruitment and rest by way of promotion from
elementary school teachers.
11. Pursuant thereto, an advertisement was issued for
appointment of such teachers and the members of petitioner
no.1 and petitioner no.2 in W.P. (S) No. 4115 of 2021, as also
petitioners of W.P.(S) No.3365 of 2020 were appointed in
different districts in the year 2015 onwards in the quota
fixed for direct recruitment.
12. It is the case of the petitioners, after their appointment
in Grade IV to the post of „Trained Graduate Teacher‟
[Science/Arts/Language] contrary to the Promotion Rules,
1993, the State of Jharkhand granted promotion to the
private respondents vide order dated 28.12.2016 with
retrospective effect from 01.04.2015.
13. Further, the State issued the impugned decision in the
shape of order dated 26.08.2021 to grant notional promotion
to the teachers [private respondents], to Grade-III, IV and VII,
- 12 - L.P.A. No. 482 & 478 of 2023
who were appointed in the year 1993 onwards, in terms of
Resolution No. 1145 dated 18.07.2019.
14. The petitioners contended that the same is illegal,
arbitrary and without application of mind. It has been
pleaded that promotion takes effect only with effect from the
date an employee joins on such post and not with
retrospective effect. In this context, reference has been made
to Resolution No. 2074 dated 04.04.1985 to fortify that
promotion takes effect from the date of joining and no
notional or retrospective promotion is permissible.
15. Further, reference has been made to letter as contained
in Memo No. 1985 dated 20.11.2016, as also Circular No.
151 of the year 2006 issued by Finance Department. Letter
dated 17.01.2019 issued by the School Education and
Literacy Department, Govt. of Jharkhand to fortify the stand
of the petitioners.
16. Referring to Rule 58 of Jharkhand Service Code and
Rule 74 of the Jharkhand Finance Rules, it has been pleaded
that it provides that promotion takes effect from the date on
which the employee assumes the charge of higher regular
post.
17. In the light of the above, the petitioners being aggrieved
with the promotion orders as contained in different memos
vide order dated 28.12.2016 with retrospective effect from
- 13 - L.P.A. No. 482 & 478 of 2023
01.04.2015; and Memo No. 619 (Vidhi) dated 26.8.2021, has
approached this Court by filing writ petitions, which were
dismissed. Hence, the present intra-court appeals.
18. It is evident from the factual aspect that for
appointment of primary teachers, the erstwhile State of Bihar
framed a rule vide notification dated 30.09.1991 known as
„Bihar Prarambhik Vidyalaya Niyukti Niyamavali, 1991‟ [Bihar
Primary School Teachers‟ Rules, 1991] in exercise of power
conferred under Article 309 of the Constitution of India,
wherein provision of appointment of teachers, both trained
and untrained, was there. But untrained teachers were to
obtain Teachers Training Certificate by way of in-service
training and till then they will be entitled to get only
untrained matric pay-scale.
19. The State of Bihar further framed a rule, under the
power conferred under proviso to Article 309 of the
Constitution of India, for promotion of the teachers of
elementary schools taken over by the Government in the
name of "Bihar Taken Over Elementary School Teachers‟
Promotion Rules, 1993" to be effective from 01.01.1986. After
bifurcation, it has been adopted by the State of Jharkhand.
20. The private respondents herein are the teachers
appointed under Rules, 1991 and governed by the promotion
Rules of 1993.
- 14 - L.P.A. No. 482 & 478 of 2023
21. Thereafter, the Human Resource Development
Department of the State of Jharkhand under proviso to
Article 309 of the Constitution of India, vide notification no.
1632 dated 05.09.2012, framed a rule, Jharkhand Primary
School Teacher Appointment Rules, 2012 (in short referred to
as 'Rule, 2012').
22. Accordingly, the State of Jharkhand issued Notification
contained in Memo No. 1533 dated 31.7.2014, whereby a
decision was taken to appoint teachers for classes 6 to 8 in
terms of Right of Children to Free and Compulsory Education
Act, 2009. It was clarified that 50% of the said posts would be
filled up by direct recruitment and rest by way of promotion
from elementary school teachers.
23. Pursuant thereto, an advertisement was issued for
appointment of such teachers and the members of petitioner
no.1 and petitioner no.2 in W.P. (S) No. 4115 of 2021, as also
petitioners of W.P.(S) No.3365 of 2020 were appointed in
different districts in the year 2015 onwards in the quota
fixed for direct recruitment.
24. At this juncture, it is admitted fact that private
respondents were initially appointed on Grade I pay-scale
whereas the petitioners herein are the direct appointees on
Grade IV in the year December, 2015 onwards.
- 15 - L.P.A. No. 482 & 478 of 2023
25. It is the case of the petitioners that after their
appointment in the month of December, 2015 and January,
2016, the respondents-authorities vide office order as
contained in memo dated 28.12.2016 granted promotion to
large number of teachers, the private respondents herein,
with retrospective effect i.e., 01.04.2015, thereby the
promotes have been made senior to the direct recruits, the
appellants herein, who were appointed in December, 2015.
26. Later on, a decision has been taken by the State-
authority, as contained in Memo No. 619 (Vidhi) dated
26.8.2021 issued under the signature of Joint Secretary to
the Government, School Education and Literacy Department,
Govt. of Jharkhand, for giving promotion to the teachers, who
are working in Grade-3, 4 and 7, on notional basis and
further decision has been taken to grant promotion with
retrospective effect from the date of availability of vacancy.
27. The writ petitioners, being aggrieved with the promotion
orders as contained in different memos vide order dated
28.12.2016 and Memo No. 619 (Vidhi) dated 26.8.2021, has
approached this Court by filing writ petitions.
28. Before the writ Court, the petitioners have taken the
ground that the writ petitioners/appellants were appointed in
the month of December, 2015 and January, 2016 but
although the impugned order of promotion was issued on
- 16 - L.P.A. No. 482 & 478 of 2023
28.12.2016 i.e., much later point of time i.e., about more
than a year of their initial appointment, but surprisingly the
impugned office order of promotion dated 28.12.2016 has
been issued granting promotion to teachers under Science,
Arts and Language stream to Grade IV with retrospective
effect from 01.04.2015 only with a purpose to rank the
petitioners, who are the direct recruits, below the interveners-
respondents by granting notional promotion, which is in
violation of the Promotion Rules, 1993 as also the various
circulars of Finance Department and the parent Education
Department.
29. The writ petitioners-appellants further took the ground
that Rule 2 of Promotion Rules, 1993 provides altogether 8
(eight) hierarchy i.e., from Grade I to Grade VIII for promotion
of teachers in different pay-scales. It has further been stated
that Grade I means Matric Trained Pay-scale and Grade II
and Grade III are the senior scale and selection grade scale of
Matric Trained Scale. Grade IV means Graduate Trained Pay-
Scale with two Grade V and Grade VI, which are senior scale
and Selection Grade Scale of Graduate Pay Scale. Further,
Grade VII means Headmaster basic pay scale and Grade VIII
is senior scale of Headmaster pay-scale.
30. It is further case of the petitioner in Grade IV i.e., entry
grade of Graduate Pay-Scale, the petitioners were appointed
- 17 - L.P.A. No. 482 & 478 of 2023
in the year December, 2015 and January, 2016 whereas the
private respondents were granted Graduate Pay-scale [Grade-
IV] by way of promotion vide impugned order dated
28.12.2016, as contained in different Memos.
31. It is the specific case of the writ petitioners-appellants
that they have borne in the cadre [Graduate Pay-scale] first
therefore, the impugned order dated 28.12.2016, by which
the respondents-authorities granted promotion to large
number of teachers including the private respondents, with
retrospective effect i.e., 01.04.2015, thereby the promotees
have been made senior to the direct recruits, is bad in law.
32. The writ petitioners although initially had not impleaded
the promotes as party but during pendency of the writ
petitions the promotes have entered into the proceeding by
way of filing intervention petition, which was allowed by the
writ court to cut short the multiplicity of proceeding and
based upon they were provided opportunity of hearing.
33. In the writ proceeding, the State has appeared and
contested the case by filing counter affidavits.
34. The grounds have been taken by the respondents in the
counter affidavit that the promotion which has been granted
in favour of private respondents with retrospective effect
cannot be said to suffer from error, reason being that the said
promotion order was issued in consonance with the statutory
- 18 - L.P.A. No. 482 & 478 of 2023
provision as contained under Promotion Rules, 1993 wherein
there is no bar to grant retrospective promotion/notional
promotion. The relevant Promotion Rules, 1993 provides that
the promotion is to be granted to one or other incumbent
subject to availability of vacancy and vacancy was there but
for one or the other reason, the private respondents could not
get promotion, hence, the promotion was granted with
retrospective effect i.e., from the date of their entitlement and
vacancy being available.
35. It has further been stated that the State of Jharkhand,
therefore, has taken a uniform decision to grant
retrospective/notional promotion with effect from the date of
entitlement of one or the other teachers vide notification as
contained in Memo No. 619 (Vidhi) dated 26.8.2021, to grant
retrospective/notional promotion with effect from the date of
entitlement of one or the other teachers. It has further been
averred that such decision was taken in compliance of
various judgment including the judgment rendered in the
case of State of Jharkhand & Ors Vs. Arun Sinha [LPA
No. 214 of 2008 with analogous cases], which ha sbeen
affirmed by Hon‟ble Apex Court in S.L.A. (Civil) No. 5520-
5522 of 2013.
36. In addition to that the interveners-private respondents
have submitted that writ petitioners have been appointed
- 19 - L.P.A. No. 482 & 478 of 2023
much after the appointment of private respondents-
interveners, as such the seniority of the private respondents-
interveners has to be counted from the date of initial
appointment. It has further been submitted that the
members of petitioner no. 1 and petitioner no. 2 were not
even born in the service/cadre, when the interveners were
appointed. It has further been submitted that once a person
became eligible and there is vacancy, he has a right to get
promotion and merely for the fault lies on the part of the
State no one can made to suffer and the State taking into
consideration these facts since has granted promotion to
interveners vide notification/order dated 28.12.2016 by
which the respondents-authorities granted promotion with
retrospective effect i.e., 01.04.2015 cannot be said to suffer
from error.
37. Learned Single Judge, taking into consideration the
aforesaid fact and considering the fact that earlier there was
no concept of direct appointment of teachers in Grade-IV
when the interveners were appointed and the concept of
appointment of teachers for classes 6 to 8 (i.e. Grade-IV)
came only after enactment of Right of Children to Free and
Compulsory Education Act, 2009. As such merely because
the appointment of teachers in the year 2015 onwards, the
case of those who were already in service right from 1994
- 20 - L.P.A. No. 482 & 478 of 2023
onwards cannot be allowed to suffer. Accordingly, the writ
petitions was dismissed with an observation that the State is
free to abide by the impugned decision and grant promotion
to the teachers entitled under the law, which is the subject
matter of instant intra-court appeals.
Argument on behalf of appellants-writ petitioners:
38. Mr. Bhanu Kumar, learned counsel appearing for the
appellants-writ petitioners has challenged the order passed
by learned writ Court on the following grounds:
I. That the learned Single Judge has not appreciated
the factual aspect in right prospective that by
granting promotion with retrospective effect to the
private respondents-promotees, they have also been
granted benefit in the seniority list while fixing the
inter se seniority of the direct recruits and the
promotes and without taking into consideration the
fact that the writ petitioners [direct appointees] have
taken birth in the cadre i.e., Grade IV [Graduate
Trained Pay-Scale] way back in the month of
December, 2015 and the interveners-private
respondents have been granted promotion in Grade
IV vide notification dated 28.12.2016 i.e., after about
a year entering into the cadre by the writ petitioners-
direct appointees but by granting such promotion
- 21 - L.P.A. No. 482 & 478 of 2023
with retrospective effect from 01.04.2015, the inter se
seniority has been disturbed. As such the promotees
even though had not taken birth in the cadre have
been shown to be senior, which cannot be said to be
just and proper. But the aforesaid fact has not been
taken into consideration by the learned Single Judge
in the impugned order.
II. The learned Single Judge has also erred in passing
the impugned order while taken into consideration
the long length of service of the interveners, which led
the learned Single Judge in coming to the conclusion
that the private respondents are treated to be senior
to that of direct recruits, who have come in the
service/cadre by virtue of enactment of the provision
of Jharkhand Primary School Teacher Appointment
Rules, 2012.
III. It has been submitted that aforesaid finding
arrived at learned Single Judge cannot be said to be
just and proper reason being that in the matter of
promotion and for the aforesaid purpose, the fixation
of inter-se seniority amongst promotees and direct
recruits i.e., the entry in the feeder cadre is to be
considered and not date of the entry in the service.
Here, admittedly, the writ petitioners-appellants
- 22 - L.P.A. No. 482 & 478 of 2023
entered in the feeder cadre of Grade IV much prior to
the private respondents. But the learned Single Judge
has considered the basis of seniority on the ground of
entry made in initial service in the different cadres i.e,
Matric trained scale, even though the private
respondents at the time of their initial appointment
were not having teachers training certificate, but
subsequently they got training and by virtue of order
passed by this Court, they have been given benefit of
matric trained scale from the date of their initial
appointment. But the aforesaid issue of granting
matric trained scale is having no adverse effect on
anybody.
IV. But while putting the private respondents
and alike senior to that of direct recruits by granting
retrospective promotion, merely on the ground that
the private respondents have been inducted in service
way back to that of direct recruits cannot be a ground
to put the private respondents [promotees] senior to
that of direct recruits/appointees [writ petitioners]
otherwise all time to come the direct recruits will
suffer and the same cannot be said to be the principle
for deciding the inter se seniority between the private
respondents [promotees] and the petitioners. But the
- 23 - L.P.A. No. 482 & 478 of 2023
learned Single Judge did not appreciate these facts
into consideration while passing the impugned order.
V. It has been contended that crux of the matter
revolves around the inter se seniority between the
writ petitioners-appellants and the private
respondents, who have been impleaded in
representative capacity, but the learned Single Judge
without taking into consideration the settled principle
of law that seniority cannot be given on retrospective
basis when an employee was not even born in the
cadre and by doing so, it may adversely affect the
employees who have been appointed validly in the
meantime.
VI. It has further been submitted that judgment
rendered in the case of Arun Sinha & Ors Vs. State
of Jharkhand [W.P.(S) No. 638 of 2006] affirmed in
L.P.A. No. 214 of 2008 and the matter travelled up-to
Hon‟ble Apex Court as also in W.P.(S) No.2547 of 2014
(Sunil Kumar Bhagat & Ors. Vs. The State of
Jharkhand & Ors.], upon which reliance has been
placed, is not applicable in the facts and
circumstances of the present case reason being that
both the judgments are individual claim of petitioners
which pertains to grant of Grade-I Matric Trained
- 24 - L.P.A. No. 482 & 478 of 2023
Scale from the date of initial appointment and it does
not in any way deals with the issue of granting
promotion to Grade IV [Graduate Trained Scale] with
retrospective effect or in particular dealing with the
issue of inter se seniority. Therefore, the judgments
rendered in the case of Arun Sinha (supra) and Sunil
Kumar Bhagat (supra), are of no help to the private
respondents [promotees] but the learned Single Judge
relying upon the same has passed the impugned
judgment, therefore, the same requires interference
by this Court.
VII. Ground has also been taken that the
promotion was granted on the basis of Bihar Taken
Over Elementary School Teachers‟ Promotion Rules,
1993 but after coming into effect of Right of Children
to Free and Compulsory Education Act, 2009 in
terms of which the Jharkhand Primary School
Teacher Appointment Rules, 2012 was framed for
making direct recruitment on the post of Graduate
Trained Teacher in Grade IV, the issue of inter se
seniority of the direct recruits vis-à-vis the promotees
[private respondents], was also required to be
considered by making out a policy decision to protect
the right of the parties. However, in absence of any
- 25 - L.P.A. No. 482 & 478 of 2023
such policy decision/rule, consideration ought to
have been given by learned Single Judge that the
private respondents, who have been granted
promotion with retrospective promotion may have no
adverse effect on the seniority of the direct recruits on
the principle that the day when the direct recruits
were appointed in view of provisions of Rule, 2012 the
promotees were not even taken birth in the cadre but
by virtue of granting retrospective promotion they
have been shown to be taken birth in the cadre
without discharging the duty in the cadre.
VIII. Therefore, the impugned Memo dated
28.12.2016, whereby many teachers including private
respondents were granted promotion to Grade-IV with
retrospective effect from 01.04.2015 is fit to be
quashed and set aside.
IX. Further ground has been taken that in the
impugned order there is no whisper about the
determination of inter se seniority of the appellants
[direct recruits] and the private respondents
[promotes[ which is the main crux of the matter and
similarly the impugned order as contained in Memo
No. 619 dated 26.08.2021 which was issued
subsequent to the appointment of the
- 26 - L.P.A. No. 482 & 478 of 2023
petitioners/appellants is completely silent regarding
the inter se seniority between the direct recruits and
the promotes on the post of Graduate Trained Pay
Scale, as such finding recorded by the learned Single
Judge is wholly erroneous and requires interference
by this Court.
X. Learned counsel for the writ petitioners,
questioning the order/decision of the State as
contained in Memo No. 619 dated 26.08.2021, has
submitted that the said order was passed by the
State on the strength of direction passed by learned
writ Court in W.P.(S) No. 7392 of 2017 [Nand Kishor
Nayak Vs. State of Jharkhand & Ors] disposed of
vide order dated 26.09.2018, wherein prayer has
been made for direction upon the respondents-State
to pay them monetary benefits upon grant of Grade-I
from the date of appointment and further Grade-II, as
per the decision of the Hon'ble Court, passed in
W.P.(S)No.638 of 2006 (Arun Sinha & ors. vs. the
State of Jharkhand & ors.) and the direction was
passed upon the State to take a uniform decision for
extending the actual benefits of promotion to the
petitioners.
- 27 - L.P.A. No. 482 & 478 of 2023
XI. It has been submitted that in the said
judgments since there is no issue of granting Grade
IV promotion taking into consideration inter se
seniority, as in the instant case, but the State based
upon the finding so given in W.P.(S) No. 7392 of 2017
[Nand Kishor Nayak Vs. State of Jharkhand & Ors],
issued the impugned order/decision of the State as
contained in Memo No. 619 dated 26.08.2021 which
requires to be quashed and set aside.
39. Learned counsel for the writ petitioners-appellants
based on the aforesaid ground has submitted that the order
passed by learned Single Judge needs interference by this
Court.
Submission on behalf of respondents:
40. Learned counsel for the State and the respondents-
promotees have jointly defended the order passed by learned
Single Judge by raising the following grounds:
I. It has been contended that the contesting private
respondents have been appointed in the year 1993-
1994 and since then they were working in the scale of
matric trained scale however without any training
and subsequent to training, by virtue of order passed
by this Court they have been treated to be appointed
on Matric Trained Scale from the initial date of
- 28 - L.P.A. No. 482 & 478 of 2023
joining and in consequence thereof, they have been
entitled for matric trained scale from the date of their
initial appointment.
II. It has further been contended that vacancies were
there but due to laches committed on the part of the
State-authorities, the private respondents were not
granted promotion to higher Grades, as such they
come to this Court by filing writ petition being W.P.
(S) No. 638 of 2006 [Arun Sinha & Ors Vs. State of
Jharkhand & Ors], which was disposed of directing
the State to grant Grade-I pay scale from the date of
initial appointment and to consider for further
promotion to Grade-IV i.e., Graduate Trained pay
scale after 8/12 years of completion of service. The
order passed by writ Court attained its finality up-to
Hon‟ble Supreme Court.
III. It has been submitted that in compliance
thereof, many teachers were promoted with
retrospective effect to one or other grades treating
them in Grade-I from the date of their
appointments/joining. In compliance of the aforesaid
judgments, the State of Jharkhand took a policy
decision vide Memo No. 3027 dated 14.12.2015 for
grant of Grade-I from the date of joining of the
- 29 - L.P.A. No. 482 & 478 of 2023
respective teachers. The issue relating to grant of
Grade-I from the date of joining/appointment,
therefore, attained its finality. Once they were treated
in Grade-I from the date of appointment/joining, their
seniority has to be fixed accordingly with their
entitlement for promotion to respective Grades.
IV. It has further been submitted that once the
teachers attained the eligibility, they are entitled for
promotion with effect from the date they were eligible
and as such the State authority taking into
consideration these aspects of the matter has granted
promotion with retrospective effect i.e., from the date
of availability of vacancy i.e., 01.04.2015, which
cannot be faulted with.
V. It has been contended that the writ
petitioners/appellants have been appointed
subsequent to the date of promotion and as such at
the time of preparing the seniority list of private
respondents and the writ petitioners, based upon the
entry in the cadre the private respondents since have
entered in the cadre prior to writ petitioner by way of
granting retrospective promotion, they have rightly
been treated senior to that of writ petitioners.
- 30 - L.P.A. No. 482 & 478 of 2023
VI. It has been contended that the private
respondents have been promoted taking into
consideration the relevant rules of promotion i.e.,
Promotion Rules, 1993 wherein specific provision has
been made that promotion as also the inter se
seniority, shall be determined on the basis of date of
entry in the cadre and admittedly by virtue of
promotion granted in favour of private respondents
with retrospective effect they have entered in the
cadre prior to that of writ petitioners, the direct
recruits, and as such based upon Rule 8 of Rules,
1993, the private respondents have been treated to be
senior to that of writ petitioners, the direct recruits.
VII. It has further been argued that there is no
fault on the part of the private respondents or
similarly situated teachers, as they were appointed as
untrained in terms of the appointment rules
applicable at the relevant point of time, which was
framed under the proviso to Article 309 of the
Constitution of India. The promotions of teachers
were granted in terms of the said Promotion Rules,
1993, in which, there is no bar to grant retrospective
promotion/notional promotion, particularly in a case
where delay is caused at the instance of the State.
- 31 - L.P.A. No. 482 & 478 of 2023
Once a person became eligible and there is vacancy
available, he/she has a right to get promotion with all
consequential benefits. Merely for the fault on the
part of the State, no one can be denied promotion
from retrospective date.
VIII. The ground has also been taken that the
learned Single Judge has passed the order taking into
consideration the order passed by this Court in the
case of Arun Sinha & ors (Supra) and Sunil
Kumar Bhagat (supra) wherein the issue of
retrospectivity has been taken into consideration and
based upon the same the respondents-authorities
have been directed to pay all back wages of arrears of
salary. Meaning thereby this Court has come to the
conclusive finding by holding the petitioners therein
entitled for the back wages with retrospective
promotion, which itself suggests the retrospective
promotion is permissible.
IX. Learned counsel further submits that there is
nothing wrong in granting retrospective promotion
with effect from the date of entitlement and the
vacancy being available. Taking these facts into
consideration, the State of Jharkhand since has
taken a uniform decision to grant retrospective/
- 32 - L.P.A. No. 482 & 478 of 2023
notional promotion with effect from the date of
entitlement of one or the other teachers vide decision
dated 26.08.2021, that cannot be faulted with.
41. Learned counsel for the respondents on the aforesaid
pretext has submitted that order passed by the learned Single
Judge suffers from no error and requires no interference by
this Court.
Analysis:
42. We have heard learned counsel for the parties, gone
across the finding recorded by learned Single Judge in the
impugned orders as also the relevant rules.
43. The writ petitioners herein are mainly aggrieved with
promotion order dated 28.12.2016, whereby many teachers
including private respondents have been granted promotion
to Grade-IV with retrospective effect from 01.04.2015, which
allegedly involves dispute of inter se seniority between two
sets of teachers.
44. First set of teachers are the private respondents who
were initially appointed in the year 1993-94 in Grade I Scale,
under Bihar Primary School Teachers‟ Rules, 1991, though
initially on untrained Trained Matric Pay-Scale but later on
completion of required Teachers‟ Training and the order
passed by this Court in different writ petitions they have been
- 33 - L.P.A. No. 482 & 478 of 2023
made entitled for Grade I pay-scale since the date of their
appointment.
45. Whereas, the second set of teachers, the writ
petitioners-appellants herein, are the direct recruits
appointed under the Jharkhand Primary School Teacher
Appointment Rules, 2012 in Grade IV, i.e., the entry level of
Graduate Trained Scale appointed in the year December,
2015.
46. Meaning thereby the dispute is in between the inter se
seniority between the direct recruits and the promotees.
47. This Court, in order to come to adjudicate the dispute
between the parties, requires to refer the admitted fact
involved in the case.
Factual aspect with respect to promotees:
48. The erstwhile State of Bihar, for appointment of primary
teachers, framed a rule vide notification dated 30.09.1991
known as „Bihar Prarambhik Vidyalaya Niyukti Niyamavali,
1991‟ [Bihar Primary School Teachers‟ Rules, 1991]
(hereinafter referred to as "the Rules, 1991") in exercise of
power conferred under Article 309 of the Constitution of
India, wherein there was provision of appointment of
teachers, both trained and untrained. But untrained teachers
were to obtain Teachers Training Certificate by way of in-
- 34 - L.P.A. No. 482 & 478 of 2023
service training and till then they will be entitled to get only
untrained matric pay-scale.
49. The State of Bihar further framed a rule, under the
power conferred under proviso to Article 309 of the
Constitution of India, for promotion of the teachers of
elementary schools taken over by the Government in the
name of "Bihar Taken Over Elementary School Teachers‟
Promotion Rules, 1993" (hereinafter referred to as "the Rules,
1993") to be effective from 01.01.1986. After bifurcation, it
has been adopted by the State of Jharkhand. Rules 7 and 8
thereof deals with „draft of seniority list for promotion‟ and
„inter-se seniority in the same grade‟.
50. The private respondents herein are the teachers
appointed under Rules, 1991 and governed by the promotion
Rules of 1993.
51. However, some disputes arose with regard to
appointment of Elementary Teachers as to whether they
should be treated district-wise appointees or State wise
because their appointment were conducted by Bihar Public
Service Commission. The matter ultimately went up-to the
Hon‟ble Apex Court in the case of Ram Vijay Kumar & Ors.
Vs. State of Bihar & Ors [(1998) 9 SCC 227], wherein at
paragraph 5, the Hon‟ble Apex Court took serious view of the
matter that no steps were taken by the State Government for
- 35 - L.P.A. No. 482 & 478 of 2023
imparting training to the untrained teachers, as such
direction was given to take immediate steps to finalize
syllabus and commence the training of untrained teachers
w.e.f. 01.10.1997.
52. Pursuant thereto though training was completed but
benefit of Grade I was not given from the initial date of
appointment, as such the aggrieved teachers approached this
Court invoking the writ jurisdiction of this Court, one of the
leading case is Arun Sinha & Ors Vs. State of Jharkhand
& Ors [W.P. (S) No. 638 of 2006], in which direction was
passed to grant Grade-I pay scale from the date of initial
appointment and to consider for further promotion to Grade-
IV i.e., Graduate Trained pay scale after 8/12 years of
completion of service. Against that order, the State of
Jharkhand preferred appeal being LPA No. 214 of 2008 with
analogous cases, which was dismissed vide order dated
06.11.2012. The matter went up-to Hon‟ble Apex Court in
SLP(C) No. 5520-5522 of 2013, which was also dismissed
vide order dated 08.03.2011.
53. Similarly, in the case of Sunil Kumar Bhagat and ors.
Vs. State of Jharkhand & Ors with analogous cases, in
W.P. (S) No. 2547 of 2014, this Court directed the
respondents-State to grant Grade I scale to the teachers from
the initial date of appointment.
- 36 - L.P.A. No. 482 & 478 of 2023
54. In view of the judgments passed by this Court, the State
Government has come out with a decision as contained in
Resolution No. 3027 dated 14.12.2015, in which, a decision
was taken by the State Government to grant Grade I Matric
Trained Scale from the initial date of appointment of such
teachers in whose case there was delay in imparting training
and publication of results. However, in the aforesaid
resolution, it was clearly mentioned that it will not be treated
as precedent.
Factual aspect with respect to recruits (writ petitioners):
55. The Human Resource Development Department of the
State of Jharkhand under proviso to Article 309 of the
Constitution of India, vide notification no. 1632 dated
05.09.2012, framed a rule, Jharkhand Primary School Teacher
Appointment Rules, 2012 (in short referred to as 'Rule, 2012').
56. Accordingly, the State of Jharkhand issued Notification
contained in Memo No. 1533 dated 31.7.2014, whereby a
decision was taken to appoint teachers for classes 6 to 8 in
terms of Right of Children to Free and Compulsory Education
Act, 2009. It was clarified that 50% of the said posts would be
filled up by direct recruitment and rest by way of promotion
from elementary school teachers.
57. Pursuant thereto, an advertisement was issued for
appointment of such teachers and the members of petitioner
- 37 - L.P.A. No. 482 & 478 of 2023
no.1 and petitioner no.2 in W.P. (S) No. 4115 of 2021, as also
petitioners of W.P.(S) No.3365 of 2020 were appointed in
different districts in the year 2015 onwards in the quota
fixed for direct recruitment.
58. Admittedly, herein the private respondents were initially
appointed on Grade I pay-scale whereas the petitioners
herein are the direct appointees on Grade IV in the year
December, 2015 onwards.
59. Further admitted fact herein is that after the
appointment of the writ petitioners in the month of
December, 2015 and January, 2016 on the post of Graduate
Trained Teacher in Grade IV and while discharging duty as
such, the respondents-authorities vide office order as
contained in memo dated 28.12.2016 granted promotion to
large number of teachers, who were appointed as per the
Promotion Rules, 1993, in Graduate Trained Pay Scale of
Grade -IV [in Science, Arts and Language Stream] with
retrospective effect i.e., 01.04.2015, thereby the promotes
have been made senior to the direct recruits, the appellants
herein, who were appointed in December, 2015 and January,
2016.
60. Later on, decision has been taken by the State-
authority, as contained in Memo No. 619 (Vidhi) dated
26.08.2021 issued under the signature of Joint Secretary to
- 38 - L.P.A. No. 482 & 478 of 2023
the Government, School Education and Literacy Department,
Govt. of Jharkhand, for giving promotion to the teachers, who
are working in Grade-3, 4 and 7, on notional basis and
further decision has been taken to grant promotion with
retrospective effect from the date of availability of vacancy.
61. The writ petitioners, being aggrieved with the promotion
orders as contained in different memos vide order dated
28.12.2016 as also Memo No. 619 (Vidhi) dated 26.8.2021,
has approached this Court by filing writ petitions on the
ground that though their appointment on the post of Trained
Graduate Teachers in the stream of Science, Arts and
Language in Grade IV have been made in December, 2015
and January, 2016 but the respondents-authorities granted
promotion to the private respondents vide office order dated
28.12.2016 in Graduate Trained Pay Scale with retrospective
effect from 01.04.2015 i.e., much prior to the date of
appointment of the writ petitioners-appellants, which would
adversely affect the future promotion of the direct recruits
like that of writ petitioners and disturb the inter se seniority
of the writ petitioners/appellants and they would be ranked
lower to such teachers who have been granted promotion
with retrospective effect.
62. The learned Single Judge, taking into consideration the
relevant provisions of Appointment Rules, 1991; Promotion
- 39 - L.P.A. No. 482 & 478 of 2023
Rules, 1993 and Appointment Rules, 2012 and other
provisions of law as also the law laid down by Court of law in
the case of Sunil Kumar Bhagat & Ors. Vs. State of
Jharkhand & Ors. (supra) and Arun Sinha (supra)
dismissed the writ petitions being W.P. (S) No. 4115 of 2021
and W.P. (S) No. 3365 of 2020, which is the subject matter
of instant intra-court appeals.
63. Therefore, this Court deems it fit and proper to now go
through the relevant provision of Rules, 1991; Rules, 1993
and Rules, 2012 as also the case laws on which reliance has
been placed by the parties as also by learned Single Judge.
64. The private respondents were appointed on the basis of
appointment Rules of 1991, namely, Bihar Primary School
Teachers‟ Rules, 1991] wherein there was provision of
appointment of teachers, both trained and untrained. But
untrained teachers were to obtain Teachers Training
Certificate by way of in-service training and till then they will
be entitled to get only untrained matric pay-scale.
65. As per the provisions contained under Rule 11 of Rules,
1991, the private respondents without having Teachers
Training were appointed as such they were initially granted
Matric Untrained Scale.
66. The Rule 11 of Rules, 1991 speaks that the candidate
who possesses teachers training certificate shall be entitled
- 40 - L.P.A. No. 482 & 478 of 2023
for matric trained scale and who does not have teachers
training certificate, at the time of appointment, will be
appointed on matric untrained scale. It was further averred
that immediately after passing of Teachers Training
Examination, the said untrained teachers will be entitled to
get the pay-scale and benefit as Matric Trained Scale.
67. For ready reference, Rule 11 of Rules, 1991 is quoted as
under:
11- ojh;rk lwph esa vkj{k.k fu;eksa dk vuqikyu djrs gq, fjfDr;ksa dks Hkjus ds fy,
fuEu izdkj dkjZokbZ dh tk;xh
¼1½ tks mEehnokj izf"kf{kr gSa] mUgsa eSfVªd izf"kf{kr osrueku esa fu;qDr
fd;k tk;sxkA
¼2½ tks mEehnokj vizf"kf{kr gSa] mUgsa eSfVªd vizf"kf{kr osrueku ds
izkjfEHkd osrueku esa fuEu "kÙkksZa ds lkFk fu;qDr fd;k tk;sxk%
¼d½ izf"k{k.k ds fy, izfrfu;qDr fd;s tkus ij mlesa i;kZIr dkj.k
ds Hkkx u ysus ij lsok lekIr dj nh tk;sxhA
¼[k½ izf"k{k.k mijkUr ijh{kk yh tk;sxh mlesa mEehnokj ;fn
lQy ugha gksrk gS rks mls ,d ekSdk vkSj fn;k tk;sxk ;fn
nwljh ckj Hkh og vuqÙkh.kZ jgrk gS rks mldh lsok lekIr dj nh
tk;xhA
¼x½ izf"k{k.k dh vof/k esa le;≤ ij fu/kkZfjr nj ij o`fÙkdk
ek= ns; gksxhA izf"k{k.k vof/k ds fy, osru ns; ugha gksxkA
¼?k½ dafMdk ¼[k½ esa fufnZ"V ijh{kk esa mÙkh.kZ gksus ds mijkUr
eSfVªd izf"kf{kr osrueku fn;k tk;sxkA
68. But when no in-service Teachers‟ Training was
conducted, the aggrieved teachers approached this Court by
filing number of writ petitions. Further, the dispute with
regard to appointment of Elementary Teachers as to whether
they should be treated district-wise appointees or State wise
- 41 - L.P.A. No. 482 & 478 of 2023
because their appointment were conducted by Bihar Public
Service Commission, the matter ultimately went up-to the
Hon‟ble Apex Court in the case of Ram Vijay Kumar & Ors.
Vs. State of Bihar & Ors [(1998) 9 SCC 227], wherein at
paragraph 5, the Hon‟ble Apex Court took serious view of the
matter that no steps were taken by the State Government for
imparting training to the untrained teachers, as such a
direction was given to take immediate steps to finalize
syllabus and commence the training of untrained teachers
w.e.f. 01.10.1997.
69. For ready reference, the factual aspect and finding given
by Hon‟ble Apex Court at paragraph 1 and 5 respectively are
quoted as under:
"1. This special leave petition relates to recruitment of
Assistant Teachers in Elementary/Primary Schools in
the State of Bihar. The said recruitment was made on
the basis of an advertisement issued on 8-10-1991. The
petitioners in this special leave petition are persons who
possess teaching qualifications obtained from
Government/Private Teachers' Training Institutions. They
had filed a writ petition in the High Court assailing the
process of selection by the Bihar Public Service Commission
(hereinafter referred to as "the Commission"). The grievance
was that the selection was made on districtwise basis and
the persons who had applied from a particular district were
treated as applicants and aspirants for appointment to the
posts in that particular district only. The said writ petition
has been disposed of by the High Court by the impugned
judgment dated 26-9-1996. The High Court has held that the
eligible candidates have a right of consideration for their
- 42 - L.P.A. No. 482 & 478 of 2023
appointment in any one or other district cadre of Assistant
Teachers and the State could not force a person to confine
his application for a particular district cadre at the time of
application. But keeping in view the facts and circumstances,
the High Court has not set aside the impugned selection and
the appointments made on the basis of such selection.
5. From the affidavit of Shri Deepak Kumar it appears that
although appointment of Assistant Teachers on the
basis of the impugned selection was made in August
1994 no steps have been taken so far by the State
Government for imparting training to the untrained
teachers. All that has been said in the affidavit of Shri
Deepak Kumar is that the training period of two years is
being reduced to one year and the syllabus for the one-year
course is yet to be prepared. This lackadaisical approach
in the matter of imparting training to persons who are
required to teach students is indefensible. It is,
therefore, directed that the State Government shall
take immediate steps to finalise the syllabus and that
the training courses for training of the untrained
teachers should commence from 1-10-1997. It must be
ensured that all the untrained teachers who have been
appointed as per the aforementioned selection are duly
trained within two years' time."
[Emphasis supplied]
70. It needs to refer herein that the some of the teachers
appointed in the year 1993-94 since at the time of entering
into service were a simple matriculate as such they were
inducted in service in the untrained matric scale.
71. Since, there was delay in deputing the untrained
teachers for in-service training, because of which they were
not getting Grade-I pay scale, as a result of which various
writ petitions were filed before the High Court and further
- 43 - L.P.A. No. 482 & 478 of 2023
untrained teachers remained stagnant in the same scale for
long period of time without any up-gradation, the aggrieved
submitted representation before the respondents-authority,
which was rejected vide office order dated 03.05.2003 stating
that the untrained teachers would be entitled to Grade I only
from the date of attaining training.
72. Aggrieved thereof, similarly situated persons approached
this Court by filing writ petition being W.P. (S) No. 5465 of
2007 in the case of Awadh Bihari Mishra & Ors. Vs. The
State of Jharkhand & Ors seeking therein prayer for grant
of Grade I scale from the date of appointment and seniority
from the date of appointment with a further prayer to grant
promotion to Grade I to Grade VII. The said writ petition was
allowed vide order 18.06.2008 directing the State to grant
Grade I from the date of joining and not from the date of
completion of Teachers Training.
73. For ready reference, the relevant paragraph of the
judgment is quoted as under:
"In this writ petition the petitioners have prayed for
quashing the letter dated 3.5.03 (Annexure-13) whereby the
representation of the petitioners has been rejected holding
that the untrained teachers would not be entitled for
promotion from Grade-I scale onwards and that they would
be entitled for promotion to Grade-I scale only from the date
of obtaining the Teachers' Training.
The petitioners were appointed as untrained teachers by the
Human Resources Development Department, Government of Bihar
- 44 - L.P.A. No. 482 & 478 of 2023
in accordance with its policy decision and resolution dated
5.3.1991. The Government of Bihar had also framed the Rules
known as the Bihar Primary School Teachers' Rule, 1991 In
exercise of its power under Article 309 of the Constitution of India
wherein there was a provision for appointing the in-service
untrained teachers and after appointment, for sending the said
teachers for in-service Teachers Training in the Government
Colleges.
The petitioners were untrained Graduate and were
appointed in the year 1994 on the basis of the merit list prepared
after completing all the legal formalities. The Director, Primary
Education, Government of Bihar by Letter No.-998/95 dated 7.6.95
took a decision to grant Grade-1 scale of the Matric Trained to the
untrained teachers who ware Graduate. However, after the
appointment of teachers, they were not sent for training. The
appointment procedure was also challenged before the Patna High
Court. The matter went up to the Hon'ble Supreme Court in S.LP
(Civil) No. 23187/1996 (Ram Vinay Kumar & Ors: Vs. State of
Bihar & Ors.). In the said S.LP, the Supreme Court gave certain
direction on the State of Bihar for sending the petitioners for service
training. The Finance Department, Government of Jharkhand by
letter No. 4568 dated 5.7.02 granted Grade-1 Matric Trained scale
to such untrained teachers w.e.f 1.1.1996. It was also decided that
the seniority position of the petitioners shall be maintained as per
the merit list prepared at the time of their appointment. However,
the petitioners have been stagnated in the same scale for more
than 12 years without any up-gradation. In the scale. Although the
persons appointed with the petitioners have been promoted from
Grade-1 scale to Grade-IV scale, the petitioners have not been
given even Grade-11 scale. They made representation though their
Association which was rejected by the Government of Jharkhand
Indicating that the untrained teachers would not be entitled for
promotion from Grade-1 scale to Grade-VIII scale and that they
would be entitled to Grade-1 scale only from the date of attaining
the Teachers Training. The petitioners are aggrieved by the said
order.
- 45 - L.P.A. No. 482 & 478 of 2023
Today when the case is taken up for hearing, It has been
submitted by learned counsel for the petitioners that in the similar
fact situation, other writ petitions have been disposed of by this
Court holding that the petitioners' seniority is to be counted from
the date-of-their appointment and that the petitioners are entitled
for consideration of fixing their seniority from the date of their
appointment and also for consideration of giving the benefit of
Grade-IV scale after completion of 8/12 years of their service. Such
directions have already been given by this Court in W.P(S)
No.4235/2004 (Balwant Sahay Vs. The State of Jharkhand & Ors.)
and W.P(S) No. 638/2006 (Arun Sinha Vs. The State of Jharkhand
& Ors.).
The said legal position has hot been disputed by learned
counsel for the respondents.
I have perused the decisions/directions given by this Court
in the said cases. This case is squarely covered by the sald
decisions of this Court. In view thereof, the impugned order/letter
dated 3.5.2003 contained in Anenxure-13 is, herby, quashed. It is
held that the respondents are entitled to get Grade-I scale
from the date of their joining from i.e., on 29.10.1994 and
not from the date of completion of the Teachers' Training.
This writ petition is allowed in the said terms."
74. Similar issue was raised in the case of Arun Sinha &
Ors. Vs. The State of Jharkhand & Ors [W.P. (S) No. 638
of 2006] which was disposed of vide order dated 04.04.2008,
wherein also, it has been held that the petitioners‟ case
should be considered for holding their seniority from the date
of their appointment and it was further held that their case
should be considered for giving benefit of Grade IV scales
after completion of 8/12 years of their service.
75. For ready reference, the entire order passed by learned
Single Judge is quoted hereunder as since, much emphasis
- 46 - L.P.A. No. 482 & 478 of 2023
has been laid on this judgment by the private respondents as
also the State:
"Heard the parties finally.
2. Mr. Pandey, learned counsel appearing for the petitioners,
submitted as follows. The petitioner's were appointed in
September/October, 1994 as Assistant Primary Teachers on
the recommendation of the BPSC and on the basis of merit. The
minimum qualification for appointment of such teachers was matric
and weightage was to be given to trained, but as the petitioners
had higher qualifications namely graduation and above they were
given matric trained scale since their appointment, in the light of
the government circulars. They were given replacement scales
subsequently of Grade-1. Petitioners repeatedly requested for
sending them for training but they were sent only in 1998,
and that too only after the orders passed by the Supreme
Court on 5.9.1997. They completed the training in the year
1999 but the result was published in the year 2002 only
after the intervention of the Court. In the circumstances,
petitioners were not at fault in not acquiring training.
Therefore, the petitioners should be given grade IV scale as
they have also completed the requisite period Le. 8/12 years
in service. He also relied on clause 3 (Kha) of the Circular dated
25.6.1909, issued by the Finance Department, Government of
Bihar, in which, it is said that the seniority of the untrained
primary teachers will remain intact, in any case, even if they do not
pass the training examination or if they do not get training. He also
relied on the order dated 5.1.2007 passed in WPS No. 6264 of
2005 Jharkhand Police Association etc. and submitted that
petitioners cannot be made to suffer if they were not sent for
training and there was delay in completing the training.
3.Counsel for the State on the other hand submitted as follows. It
is true that on the basis of merit list and ranking list of the
petitioners, they were appointed against matric trained pay-scale
in accordance with different orders/directions of the State
Government, and that as per the said Circular dated 25.6.1999,
the seniority is to be counted from the date of appointment, but in
- 47 - L.P.A. No. 482 & 478 of 2023
view of paragraph 13 of GSR 28 dated 9.7.1993, petitioners are
entitled for, grade 1 pay-scale from the date of passing Teachers
Training Examination ic. 3.5.2002. He lastly submitted that
seniority list is yet to be finalized.
4. It is not disputed that petitioners were appointed in
September/October 1994 in the matric trained scale and were
subsequently, given replacement scale of Grade-1 as per the
current Circular. It is also not disputed that only after the
intervention of the Court, petitioners were sent for training in 1998,
and the result was published only in 2002 on the intervention of
the Court. Therefore, it, cannot be said that petitioners were at fault
in not getting training. In these circumstances, the said judgment of
Jharkhand Police Association (Supra) supports the case of the
petitioner. It is also not disputed that as per the Circular dated
25.6.1999, which is subsequent to the Circular dated 9.7.1993,
petitioner's seniority is to be counted from their dates of
appointment.
5. In the facts and circumstances of this case, as noticed
above, petitioners' case should be considered for having
their seniority from the date of their appointment. They
should also be considered for giving benefit of. Grade-IV
scales after completion of 8/12 years of their service.
Accordingly, the petitioners will be at liberty to file
individual representations, on which, the Director, Human
Resources Development Department ( Primary Education),
Government of Jharkhand, Ranchi ( respondent no. 2) will
pass necessary orders in terms of this order within four weeks
from the date of receipt/production of the representations.
With these observations and directions, this writ petition is
disposed of. No costs."
76. The State preferred intra-court appeal against the
order passed by learned Single Judge by filing L.P.A. No. 214
of 2008 and analogous cases [The State of Jharkhand &
Ors. Vs. Arun Sinha & Ors.], which was dismissed vide
common order dated 6th November, 2012.
- 48 - L.P.A. No. 482 & 478 of 2023
77. For ready reference, the judgment passed in L.P.A. No.
214 of 2008 and analogous cases [The State of
Jharkhand & Ors. Vs. Arun Sinha & Ors.], is quoted as
under:
"Heard learned counsel for the parties.
These Letters Patent Appeals are decided by this common
order since identical question is involved in these appeals.
The writ petitioners-respondents are the appointees of the
year 1993-94. When they were appointed, they were untrained
teachers. The petitioners' contention is that they requested the
appellant-State to send them for training so that they may not be
put in the category of untrained teachers. However, they were sent
for training in the year 1998, and that too only in view of the order
passed by the Hon'ble Supreme Court on 05.9.1997. The
petitioners completed the training in the year 1999 but the result
was published in the year 2002 only and that too after intervention
of the Court. The petitioners, therefore, claimed that they should be
given Grade IV scale as they have also completed the requisite
period i.e., 8/12 years in service from the date of their
appointment. The petitioners also submitted that in view of the
Circular of the Government dated 25.6.1999 of Finance
Department, Government of Bihar, it has been specifically clarified
that the seniority of the untrained primary teachers will remain
intact, in any case, even if they do not pass the training
examination or if they do not get training.
Learned Single Judge accepted the contention of the writ
petitioners in toto and observed that though they were initially
appointed as untrained teachers and they were entitled to training
which were provided to them by the Government in the year 1998
and that too in view of the order passed by the Hon'ble Supreme
Court. The petitioners took and completed the training in the year
1999 but their result was published in the year 2002 and that too
when the Court intervened. In these facts and circumstances of the
case, the petitioners were not at fault in not getting the training but
it was the fault of the State Government. In view of the above
- 49 - L.P.A. No. 482 & 478 of 2023
reasons, the writ petition filed by the petitioners was allowed,
hence, the present L.P.As have been preferred by the State.
Learned counsel for the petitioners submitted that the
Circular dated 25.6.1999 though provided that seniority will not be
affected by training or nontraining as provided under Clause
3(Kha) of the said Circular, that Circular has been withdrawn
retrospectively by the decision of the Cabinet of Government, dated
16.9.2000 and, therefore, petitioners are entitled to any relief of
being untrained teachers at the time of appointment.
Learned counsel for the appellant-State submitted that so is
the position in Bihar Taken Over Elementary School Teachers
Promotion Rules, 1993 and relied upon Rule 13 of the said Rules
wherein it has been provided that untrained teachers shall not be
eligible for promotion to any of the Grade i.e. 1 to 8 and as per the
said sub-rule (3) of Rule 13, an untrained teacher may be given
Grade 1 from the date on which he becomes trained.
We have considered the submission of the learned counsel
for the parties and perused the reasons given in the impugned
Judgment.
Learned Single Judge has carefully considered all the issues
involved in the petition and found that the petitioners were though
appointed in the year 1993-94 but they were not provided training
by the fault of the State only and even the training was provided
only after passing of the order by Hon'ble Supreme Court on
05.9.1997. Even when the petitioners completed training in the
year 1999, their result was not published and after intervention of
the Court, that result was published in the year 2002. Therefore, in
that fact situation the petitioners are not at fault in obtaining
training. Not only this, but in our considered opinion also, once
seniority is required to be determined in view of the Circular dated
25.6.1999 and that stands determined because of that Circular
and the same could not be made ineffective by the subsequent
withdrawal of the said Circular by the State Cabinet with
retrospective effect. However, that was not the issue decided by
the learned Single Judge as it has been raised by the petitioners
but effect of that Circular, which has already been given, cannot be
taken away and in the facts and circumstances of the case, we are
- 50 - L.P.A. No. 482 & 478 of 2023
of the considered opinion that there is no merit in these L.P.As.
which are, accordingly, dismissed."
78. Against the order passed in the said intra-court appeals
the State went to the Hon‟ble Apex Court by filing S.L.A.
(Civil) No. 5520-5522 of 2013 in the case of State of
Jharkhand & Ors Vs. Arun Sinha & Ors which was also
dismissed.
79. Similarly, the series of writ petitions, leading case is
Sunil Kumar Bhagat & Ors. Vs. State of Jharkhand &
Ors [WPS No. 2547 of 2014] was filed with respect of claim
of individual petitioners for grant of Grade-I Scale and
seniority from the date of their initial joining as Assistant
Teachers in Elementary Schools within the State. These
petitioners have relied upon the judgment rendered by this
Court in the case of Arun Sinha & others Vrs. State of
Jharkhand & others passed in W.P.S. No. 638 of 2006 vide
order dated 4.4.2008. The batch of writ petitions was
disposed of vide order dated 17.12.2015. The relevant portion
of the judgment is quoted as under:
9. This issue relating to seniority from the date of initial joining and
grant of Grade-I scale to the Assistant Teacher in Primary school
has engaged the attention of this Court in several matters. The
respondent- State has in due deference to the ratio laid down in the
case of Arun Sinha & others (supra) now taken a policy decision
to grant the said benefit as per the terms of the said resolution
quoted herein above to individual incumbents. It would now be
proper that the cases of individual petitioners who fall within the
terms of the resolution dated 14.12.2015, quoted herein above, be
- 51 - L.P.A. No. 482 & 478 of 2023
considered by the respondents- District authorities. The District
Superintendent of Education of authority‟s respective districts
would examine the individual cases as per the procedure laid
down by placing the matter before the District Education
Establishment Committee for taking an informed decision in respect
of individual claims in accordance with law and the aforesaid
policy decision within a reasonable time, preferably 16 weeks from
the date of receipt of copy of this order.
10. It would not be out of place to record appreciation for the
efforts taken by the State counsels and the respondent-
Department in coming out with the policy resolution, which may
possibly reduce institution of large number of cases with similar
grievances in this Court.
11. All the writ petitions are accordingly disposed of with the
aforesaid observations and directions. Pending I.A.s also stand
closed."
80. The State taking into consideration the Bihar Primary
School Teachers‟ Rules, 1991; Promotion Rules, 1993 and
different circulars/resolutions passed by the State as also the
judicial pronouncements as enunciated in the case of Arun
Sinha & Ors. Vs. The State of Jharkhand (supra) has
after obtaining opinion from the Law Department of State,
has come out with resolution as contained in Memo No.3027
dated 14.12.2015.
81. For ready reference, the opinion as sought for by the
Law Department and directives, as given in the circular is
quoted as under:
14- ekuuh; loksZPp U;k;ky; ds fu.kZ; ds mijkar fof/k foHkkx ls bl fcUnq ij earO; izkIr fd;k
x;k fd W.P. (S) No. 638/2006 esa fnukad 04-04-08 dks ikfjr vkns'k ek= ;kfpdk ds oknhx.k
ds fy, izHkkoh gksxk vFkok oknhx.k tSls vU; f"k{kdksa ds ekeys esa Hkh ;g vkns'k ykxw gksxkA fof/k
foHkkx dk ijke'kZ fuEuor~ gS%&
- 52 - L.P.A. No. 482 & 478 of 2023
"In my view and opinion there may be two important issues
for the department to consider now-
(i) Grant of Grade-1 Scale to the writ petitioners and similarly
situated others from the date of their appointment and not
from the date of completion of their training.
(ii) Grant of Grade-IV Scale to the writ petitioners and
similarly situated others from the date of completion of their
service of 8/12 years.
So far the issue no. I is concerned, in my view and
opinion the said issue may be treated to be conclusively
decided upto the level of the Hon'ble Apex Court and not only
the writ petitioners but all other similarly situated teachers
may be directed to be granted Grade-1 Scale from the date of
their appointment and not from the date of completion of their
training.
So for the issue no. Il is concerned, the Hon'ble High
Court had in the case of Arun Sinha and ors. directed
the State Government to consider for giving benefit of
Grade-4 Scale after completion of 8/12 years of their
service. The Hon'ble Division Bench did not although
discuss that issue and concentrated mainly on first
issue itself but in view of the dismissal of the LPA and SLP
that direction/judgment has attained finality.
It does not transpire from the records as to what
decision has been taken after the concerned order of the
Hon'ble Court dated 04.04.08 passed in the case of Arun
Sinha and ors in the matter of grant of Grade 4 Scale to
them.
However, I must point out that with respect to the
matter of grant of Grade-4 Scale to the writ petitioners
or other similarly situated teachers, the department
may very well consider all the aspects including the
various provisions i.e. Rule 5,6&7 of the concerned
1993 Rules, (except the condition no. 2 of Rule-4) and
find out as to whether the writ petitioners or other
similar situated teachers will be entitled to get Grade -
4 Scale after completion of their service of 8/12 years
- 53 - L.P.A. No. 482 & 478 of 2023
if they are treated to be in Grade 1 Scale from the date
of their appointment.
15- jktdh;d`r izkjafHkd fo|ky;ksa esa fu;qDr vizf'kf{kr f"k{kdksa dks fu;qfDr dh frfFk ls
xzsM&1 ojh;rk iznku djus ds laca/k esa eaf=ifj"kn~ dh cSBd fnukad 08-12-15 esa fuEukafdr
izLrkoksa ij Lohd`fr iznku dh xbZ gS&
¼i½ jktdh;d`r izkFkfed fo|ky;ksa esa o'kZ 1987 ,oa 1988 esa jkT; ljdkj ds izko/kkuqlkj
eSfVªd izf"kf{kr in ds fo:) fof/kor~ :i ls fu;qDr vizf'kf{kr f"k{kd ,oa laizfr >kj[k.M
jkT; vUrxZr izkjafHkd fo|ky;ksa esa dk;Zjr f"k{kdksa dk fu;qfDr dh frfFk ls xzsM&1 esa
vkilh ojh;rk fu/kkZfjr dh tk;A
¼ii½ fcgkj izkjafHkd fo|ky; fu;qfDr fu;ekoyh] 1991 ¼;Fkk le;≤ ij la'kksf /kr½
vUrxZr o'kZ 1994 ,oa 1999&2000 esa eSfVªd izf"kf{kr in ds fo:) fof/kor~ :i ls fu;qDr
vizf'kf{kr f"k{kd ,oa laizfr >kj[k.M jkT; vUrxZr izkjafHkd fo|ky;ksa esa dk;Zjr f"k{kdksa
dk fu;qfDr dh frfFk ls xzsM&1 vkilh ojh;rk fu/kkZfjr dh tk;A
¼iii½ mi;qZDr nksuksa dksfV ds f"k{kdksa dh vkilh ojh;rk dk fu/kkZj.k xzsM&1 esa fu;qDr dh
mudh frfFk ds vk/kkj ij djrs gq, vxyh izksUufr jktdh;d`r izkjafHkd fo|ky; f"k{kd
izksUufr fu;ekoyh] 1993 ds izko/kkukuqlkj vuqekU; gksxh] c'krsZ fd os izksUufr dh ;ksX;rk
j[krs gksaA
¼iv½ mi;qZDr dksfV ds vizf"kf{kr f"k{kdksa dks fu;qfDr dh frfFk ls xzsM&1 esa ojh;rk
fu/kkZj.k ds QyLo:i 15-11-2000 ds iwoZ dk dksbZ cdk;k jkf'k vuqekU; ugha gksxkA
¼v½ ;g iwoksZnkgj.k ugha gksxk ,oa blds vk/kkj ij mi;qZDr dafMdk ¼i½ ,oa ¼ii½ dks NksM+dj
vU; dksbZ f"k{kd ;Fkk vuqdaik ds vk/kkj ij vizf"kf{kr ds :i esa fu;qDr f"k{kd vkfn
xzsM&1 esa lfEefyr gksus ,oa bl vk/kkj ij ojh;rk ikus ds gdnkj ugha gksxa sA
¼vi½ ekuuh; >kj[k.M mPp U;k;ky; }kjk W.P. (S) No. 638/2006 esa ikfjr vkns'k ls
izHkkfor gksus okys f"k{kdksa dh lwph fcgkj yksd lsok vk;ksx dh vuq"kalk] f"k{kd in ij
fu;qfDr ,oa vgrkZ ds lkFk&lkFk muds Hkfo"; fuf/k ys[kk la[;k ¼GPF½ vafdr djrs gq,
ftyk f"k{kk v/kh{kd }kjk rS;kj dh tk;sxh] ftls lacaf/kr mik;qDr ,oa {ks=h; f"k{kk
mi&funs'kd }kjk la;qDr :i ls lR;kfir fd;k tk;sxk rFkk bls >kj[k.M ljdkj ds
website ij PDF file esa j[kk tk;sxkA bl izdkj rS;kj dh xbZ lwph esa lfEefyr
vizf"kf{kr f"k{kdksa dks gh fu;qfDr dh frfFk ls xzsM&1 ds f"k{kd ds :i esa ojh;rk dk ykHk
vuqekU; gksxkA
¼vii½ mi;qZDr dksfV ds vizf"kf{kr f"k{kdksa dk xzsM&1 esa osrueku foÙk foHkkx] >kj[k.M
ljdkj ds i=kad 4568@fo-] fnukad 05-07-02 ds vuqlkj vuqekU; gksxkA
;g ladYi rRdky izHkko ls ykxw gksxkA
82. It would be apt to mention herein that the private
respondents were appointed as Grade I as per the provisions
of Appointment Rule 1991 after their appointment there was
- 54 - L.P.A. No. 482 & 478 of 2023
the sole rule for the purpose of consideration of promotion of
teachers from I to Grade VIII i.e., Rules, 1993.
83. In the Rules, 1993, Grade I to Grade III are for Matric
Trained teachers; Grade IV to VI are Graduate Trained
Teachers whereas grade VII and VIII are said to be post of the
Headmasters. All the hierarchy carries different pay-scales.
Grade I means Matric Trained Pay-scale. Grade II and
Grade III are the senior scale and selection grade scale
of Matric Trained Scale respectively.
Grade IV means Graduate Trained Pay-Scale with two
Grades i.e., Grade V and Grade VI, which are senior
scale and Selection Grade Scale of Trained Graduate
Teacher.
Grade VII means Headmaster basic pay scale and
Grade VIII is senior scale of Headmaster Cadre.
84. Admittedly, the entry level of private respondents is
Matric Trained Teacher in Grade I. The petitioners/appellants
herein are direct recruits in Grade IV i.e., entry grade of
Graduate Pay-Scale, who were appointed in the year
December, 2015 and January, 2016 whereas the private
respondents have been granted Graduate Pay-scale by way of
promotion vide impugned order dated 28.12.2016, as
contained in different Memos giving it retrospective effect
from 01.04.2015.
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85. It needs to refer herein that the erstwhile State of Bihar
made rule for promotion of the teachers of elementary schools
taken over by the Government in the name of "Bihar Taken
Over Elementary School Teachers‟ Promotion Rules, 1993"
under proviso to Article 309 of the Constitution of India,
making it effective from 01.01.1986. The said Rule was
adopted by the State of Jharkhand, after bifurcation.
Relevant provision of the Rules, 1993 is quoted as under:
2.Definitions.- In these Rules, unless there is anything repugnant
in the subject or context-
(1) "Establishment Committee" means the committee constituted
under Rules;
(2) "Grade" means scale;
(3) "Grade-1" means Matric Trained Basic Scale - (1200-2040);
(4) "Grade-2" means Matric Trained Senior Scale - (1400-2600);
(5) "Grade-3" means Matric Trained Selection Scale - (1640-2900);
(6) "Grade-4" means Trained Arts Graduate Scale Rs. (1640-2900)
or Trained Science Graduate Scale (1640-2900);
(7) "Grade-5" means Trained Graduate Senior Scale Rs. (2000-
3500);
(8) "Grade-6" means Trained Graduate Selection Scale Rs. (2200-
4000);
(9) "Grade-7" means Middle School's Headmaster basic Scale Rs.
(2000-3500);
(10) "Grade-8" means Middle School's Headmaster Senior Scale Rs.
(2200-4000);
(11) "Untrained" means those who are not trained as under clause
(12);
(12) "Trained" means those who have undergone and passed the
following examinations-
(i) Two years' Teachers Training, or
(ii) Dip-in-Ed/B.Ed. Training, or
(iii) One year training in service tenure.
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(13) "Matric Trained" means those persons who have passed
matriculation or equivalent examination and are trained;
(14) "Trained Graduate" means those persons who are graduates
or possess equivalent qualification and are trained;
(15) "Trained Post Graduate" means those persons who are post
graduates or possess equivalent qualification and are trained.
(16) "Fundamental Rules" means the Fundamental Rules framed by
Government of India for Central Government Employees.
(vi) District Welfare Officer-Member:
Provided that if none of the officers mentioned at serial (i) to (vi)
belong to SC or ST, in that case District Magistrate shall nominate
one officer belonging to SC or ST in this Committee.
(2) The Establishment Committee shall take all decisions regarding
promotion under these Rules.
3.Establishment Committee.- (1) There shall be constituted a
District Establishment Committee at district level for promotion of
teachers consisting of the following members:
(i) District Magistrate-Chairman.
(ii) Dy. Development Commissioner-Member.
(iii) District Superintendent of Education-Member Secretary.
(iv) District Education Officer-Member.
(v) District Inspectress of Schools-Member.
(vi) District Welfare Officer-Member:
Provided that if none of the officers mentioned at serial (i) to (vi)
belong to SC or ST, in that case District Magistrate shall nominate
one officer belonging to SC or ST in this Committee.
(2) The Establishment Committee shall take all decisions regarding
promotion under these Rules.
4.Conditions for promotion.- The promotion of a teacher may
only be considered on fulfilling the following:
(1) He fulfills the minimum prescribed period of service for
promotion;
(2) He possesses minimum prescribed educational qualification and
training for promotion;
(3) There must be a vacancy meant for the category to which he
belongs S.C., S.T. or general according to latest rules regarding
reservation;
- 57 - L.P.A. No. 482 & 478 of 2023
(4) He must be eligible for consideration for promotion on the basis
of the Seniority list against the available vacancies;
(5) His service is satisfactory.
5.Minimum educational and training qualifications and
minimum tenure of service.- (1) For promotion to Grade 3-
Trained Graduate and minimum 12 years of service in Grade-2 or
Matric Trained and minimum 18 years of service in Grade-2.
(2) For promotion to Grade-4-Trained Graduate and minimum 8
years of service in Grade-I in the event of promotion from Grade-1
to the Grade-4 in case of non availability of teachers in Grade-3
and Grade-2.
(3) For promotion to Grade-6-Trained Post-Graduate and minimum
12 years of service in Grade-5, or trained Graduate and minimum
18 years of service in Grade-5.
(4) For promotion to Grade-7-Trained Post-Graduate, in the event of
promotion from grade-4 to grade-7 in case of non-availability of
teachers in Grade-6 and Grade-5 minimum five years of service in
grade-5:
Provided Trained Graduate teachers belonging to S.C. and S.T.
may also be considered for promotion to Grade-7 till 31st March,
1995, if Trained Post-Graduate teachers of these categories are not
available.
6.Availability of posts.- Establishment Committee shall calculate
for each year the vacant posts as on 1st April of that year for
promotion. The Establishment Committee shall also calculate the
vacant posts, for S.C., S.T. and General category according to the
Rules for reservation:
Provided that-(1) Promotion from Grade-1 to Grade-2 from Grade-4
to Grade-5 and from Grade-7 to Grade-8, minimum 12 years of
satisfactory service shall be necessary in each of Grade-1, Grade-4
and Grade-7 respectively and there shall be no restriction of
availability of posts and of reservation rules.
(3) For promotion from Grade-2 to Grade-3 and from Grade-5 to
Grade-6, 20% posts of the total number of teachers working in
Grade-2 and Grade-5 respectively on 31st March, shall be
available.
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(4) For promotion to Grade-4 and to Grade 7, posts sanctioned by
State Government for different districts shall be available.
7.Draft of seniority list for promotion.- By the end of the month
of January of each year, the draft of the following seniority list,
based on the position that existed on 31st of December of the
previous year, shall be prepared according to the standard laid
down in Rule-8 by District Superintendent of Education in the
following manner:
(1) Seniority list no. 1 (which shall be for promotion to Grade-3)-In
this list, firstly those Trained Graduate teachers who have
completed minimum 12 years of service in Grade-2, shall be
placed; thereafter those Matric Trained Teachers, who have
completed minimum 18 years of service in Grade-2 shall be placed;
(2) Seniority list no. 2 (which shall be for promotion to Grade-4)-(i)
This list shall be prepared separately for Arts and Science
teachers.
(ii) The teachers shall be placed in this list in the following order:
(a) Trained Graduate working in Grade-3;
(b) Trained Graduate working in Grade-2;
(c) Trained Graduate working in Grade-1 and who have completed
minimum 8 years of service in Grade-1.
(3) Seniority list no. 3 (which shall be for promotion to Grade-6)-(i)
This list shall not be prepared separately for Arts and Science
teachers but for both a consolidated list shall be prepared.
(ii) In this list, firstly those Trained Post-Graduate teachers who
have completed minimum 12 years of service in Grade-5 shall be
placed. Thereafter those Trained Graduate teachers who have
completed 18 years of service in Grade-5 shall be placed.
(4) Seniority list no. 4 (which shall be for promotion to grade-7 and
to grade-8)-
(i) This list shall not be prepared separately for Arts and Science
teachers but for both a consolidated list shall be prepared,
(ii) In this list teachers shall be placed in the following order:
(a) Trained Post-Graduate teachers working in Grade-6;
(b) Trained Post-Graduate teachers working in Grade-5;
(c) Post Graduate Trained teachers working in Grade-4 and who
have completed minimum 5 years of service in Grade-4:
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Provided Graduate Trained teachers of SC and ST category shall
be placed after post graduate teachers if Post-Graduate teachers of
these categories are not available upto 31st December, 1994;
(iii) From this list teachers working in Grade-4 and Grade-5 may be
promoted to Grade-7 and teachers working in Grade-6 may be
promoted direct to Grade-8.
8.Inter-se seniority in the same grade.- Inter seseniority of
teachers work-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, where-ever 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.‟
86. Provision of establishment committee has also been
carved out therein for the purpose of promotion, which is
headed by District Magistrate and the committee is delegated
with the power to grant promotion to one or the other eligible
teachers. The condition of promotion has been provided
under Rule 4 thereof.
87. Rule 5 of the Rules, 1993 deals with minimum
educational and training qualifications and minimum tenure
of service wherein it has been stipulated that for promotion to
Grade 3-Trained Graduate and minimum 12 years of service
in Grade-2 or Matric Trained and minimum 18 years of
service in Grade-2 is required. For promotion to Grade-4-
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Trained Graduate and minimum 8 years of service in Grade-I
in the event of promotion from Grade-1 to the Grade-4 in
case of non-availability of teachers in Grade-3 and Grade-2.
For promotion to Grade-6-Trained Post-Graduate and
minimum 12 years of service in Grade-5, or trained Graduate
and minimum 18 years of service in Grade-5. For promotion
to Grade-7-Trained Post-Graduate, in the event of promotion
from grade-4 to grade-7 in case of non-availability of teachers
in Grade-6 and Grade-5 minimum five years of service in
grade-5.
88. Rule 6 deals with the provision of availability of post‟s
for promotion, wherein provision has been made that the
Establishment Committee shall calculate for each year the
vacant posts as on 1st April of that year for promotion.
89. Rule 7 deals with the provision of draft of seniority list
for promotion, wherein it has been provided that by the end
of the month of January of each year, the draft of the
seniority list, based on the position that existed on 31st of
December of the previous year, shall be prepared according to
the standard laid down in Rule 8 by the District
Superintendent of Education.
90. Rule 8 provides inter-se seniority in the same grade,
upon which much emphasis has been laid down. It has been
stated as under Rule 8 Inter se seniority of teachers working
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in the same grade shall be decided in the manner that - (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, whereever
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.‟
91. This Court needs to refer herein that the provision of
Rule 8 is with respect to inter se seniority in a Grade of the
promotes having no nexus of preparation of seniority list of
the „Direct Recruits‟ and the „Promotees‟, as the case herein.
Such observation is being made by this Court due to the
reason that when the Promotion Rule, 1993 was enacted
there was no mode of direct recruitment to the post of
„Trained Graduate Teacher‟ in Grade IV rather the decision
has been taken for fulfilling the post through direct
recruitment only after coming into effect of Right of Children
to Free and Compulsory Education Act, 2009 and in order to
achieve the intent and object of the said Act, the Jharkhand
Primary School Teacher Appointment Rules, 2012 was enacted
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for making direct recruitment on the post of Graduate
Trained Teacher in Grade IV.
92. Rule 9 of Rules, 2012 thereof stipulates that all the
vacancies of Class 1 to 5 will be filled amongst Intermediate
Trained and for classed 6 to 8, 50% vacancies will be filled up
by Graduate Trained Teachers through direct recruitment
process.
93. The basic purpose of Right of Children to Free and
Compulsory Education Act, 2009, was of ensuring every
child‟s access to quality education. It is a legislative initiative
that seeks to make education a fundamental right for every
child aged 6 to 14 years in India. The Act emphasizes the
importance of free and compulsory education, focusing on
inclusivity, equity, and quality.
94. It is admitted case that the writ petitioners-appellants
have been appointed on the post of Graduate Trained Teacher
in Grade IV to fulfill the object and intent of Right of Children
to Free and Compulsory Education Act, 2009 pursuant to
which Jharkhand Primary School Teacher Appointment
Rules, 2012 was framed.
95. The private respondents have been inducted in the
service and thereafter, according to them, they are entitled to
be granted to promotion to different Grades from the date of
their entitlement, but the same has not been granted.
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96. While on the other hand, the case of the appellants-writ
petitioners, is that they have been appointed through direct
mode of recruitment on the basis of 50% quota, in December,
2015 and January, 2016, as provided under the provisions of
Rule, 2012, as Graduate Trained Teacher in Grade IV.
97. We have already noted above that posts of primary
teachers are in three Cadres. At the cost of repetition, it is
again being referred herein that first cadre is of - Matric
Trained teachers; second cadre i.e., Grade IV to VI are of
Graduate Trained Teachers whereas third Cadre i.e., Grade
VII and VIII are said to be post of the Headmasters. All the
hierarchy of posts carries different pay-scales.
98. In Matric Trained Scale, Grade I is the basic cadre
Matric Trained Pay-scale whereas Grade II and Grade III are
the senior scale and selection grade scale respectively.
99. In Graduate Trained Scale, Grade IV is the basic cadre
whereas two Grade V and Grade VI, are senior scale and
Selection Grade Scale respectively of Graduate Pay Scale.
100. In Headmaster Cadre, Grade VII is the basic Grade
whereas Grade VIII is senior scale of Headmaster pay-scale.
101. Meaning thereby, entry Grade for Matric Trained Scale
is Grade I, for Graduate Trained Scale Grade IV is the basic
Grade whereas for Headmaster Cade Grade VII is the basic
Grade.
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102. Prior to coming into effect of Rules, 2012, primary
teachers were to be appointed in Grade I and as per Rules,
1993 they were supposed to be granted promotion from
Grade I to Grade VIII, as per their entitlement and there was
no issue of inter se seniority between the promotes and direct
recruits. But after coming into effect of Rules, 2012, there
was direct appointment on the basic cadre of „Graduate
Trained Teacher‟ in Grade IV.
103. Admittedly, the private respondents were not promoted
the day when the writ petitioners were appointed and
inducted in service in Grade IV through direct mode i.e., in
December, 2015 and January, 2016, the basic post of
Graduate Trained Teacher. But, the private respondents have
been promoted vide order dated 28.12.2016 but with
retrospective effect from 01.04.2015.
104. Being aggrieved with such promotion of granting
promotion with retrospective effect, the writ petitioners have
approached this Court taking the ground that promotion with
retrospective effect has been granted to the private
respondents only with a purpose to make the directs recruits
like petitioners junior in the cadre though they borne in the
cadre prior to private respondents and have been inducted in
service when the private respondents did not borne in service.
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105. But, the learned Single Judge taking into consideration
the long length of service of the interveners-private
respondents, came to the conclusion that the private
respondents are treated to be senior to that of direct recruits
and further learned Single Judge took note of the law laid
down in the case of Arun Sinha & Ors Vs. State of
Jharkhand (supra) and Sunil Kumar Bhagat & Ors. Vs.
The State of Jharkhand & Ors. (supra) and did not
interfere with the order of promotion which was given with
retrospective effect to the private respondents.
106. This Court, on the basis of aforesaid facts, submissions
and law laid down by Court of law, is of the view that
following issues are required to be answered for adjudication
of lis:
"(I).Whether grant of retrospective promotion w.e.f.
01.04.2015 vide office order dated 28.12.2016 to the private
respondents in Grade IV, based upon the provision of Rules,
1993, after appointment of direct recruits in December, 2015
in Grade IV, under Rules, 2012, can be said to be justified
which allegedly have adverse impact to the interest in
particular inter se seniority, on the direct recruits?"
(II).Whether merely because the private respondents have
been inducted in service in the year 1993-94, and as such by
taking their long length of service can they be extended the
benefit of retrospective promotion to Grade IV by treating them
- 66 - L.P.A. No. 482 & 478 of 2023
to be senior, over and above, the direct recruits, who have
been appointed by virtue of enactment of new Rules, 2012
directly on Grade IV?
(III).Whether in the facts and circumstances of the case, after
coming into effect of Rules, 2012, the retrospective promotion
granted under provisions of Rule 8 of Rules, 1993 to the
private respondents can be said to be justified without taking
care of inter se seniority of the direct recruits?
(IV).Whether grant of promotion in view of provision of Rule 8
of Rules, 1993 can be a rider upon the direct recruits for
considering them junior to that of promotees, the private
respondents?
(V).Whether the judgments rendered by this Court in the case
of the Arun Sinha (supra) and Sunil Kumar Bhagat
(supra), reliance upon which has been placed by learned
Single Judge also while dismissing the writ petition, are
applicable in the facts and circumstances of the case, where
the core issue is of inter se seniority between the writ
petitioners [direct recruits] and the private respondents
[promotees]?
(VI).Whether the policy decision taken by the State vide
resolution 26.08.2021, without taking into consideration the
adverse impact of the same upon the direct recruits after
coming into effect of Rules, 2012, can be said to be justified
and sustainable in the eye of law?"
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107. Since all the issues are inter-linked, and as such they
are taken up together to be answered.
108. The core issue involved in the lis is the retrospective
promotion granted to the private respondents without taking
care of the inter se seniority of the direct recruits.
109. So far the issue of grant of retrospective
promotion/notional promotion is concerned, there is no bar
to grant retrospective promotion/notional promotion with
effect from the date of one‟s entitlement and the vacancy
being available and particularly the fact when delay is caused
at the instance of the State. There is nothing wrong in
granting retrospective promotion. Therefore, the issue of
granting retrospective promotion, if such occasion arises, is
no more res integra.
110. But if the retrospective promotion is granted causing
any adversity to other similarly situated persons, then such
retrospective promotion cannot be said to be justified.
111. Here, the situation is otherwise as because of grant of
retrospective promotion to private respondents who have
been promoted by virtue of the Rules, 1993 is causing
adverse interest upon the inter se seniority of the direct
recruits, the writ petitioners herein, who have been appointed
as per new Rules, 2012.
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112. At this juncture, the judgments rendered by this Court
rendered in the case of Arun Sinha (supra), Sunil Kumar
Bhagat (supra) and Nand Kishor Nayak (supra) are
required to be referred herein, as much reliance have been
placed by the parties upon these judgments and even while
framing the policy decision dated 26.08.2021, which is under
challenge also, the State has taken reference of judgment
rendered in the case of Nand Kishor Nayak (supra) and the
learned Single Judge while passing the judgment in Nand
Kishor Nayak (supra) has put reliance upon the judgment
rendered in the case of Arun Sinha (supra), which has been
affirmed up-to Hon‟ble Apex Court.
113. Therefore, this Court first deems it fit and proper to
again go to the judgment rendered in the case of Arun Sinha
(supra), wherefrom it is evident that prayer has been made
for grant of Grade IV as they have also completed the
requisite/minimum period of 8/12 years in service.
Submission was made therein that since the petitioners were
not at fault in not acquiring training, therefore, the
petitioners should be given grade IV scale.
114. Learned counsel for the State on the other hand taken
the ground that it is true that on the basis of merit list and
ranking list of the petitioners, they were appointed against
matric trained pay-scale in accordance with different
- 69 - L.P.A. No. 482 & 478 of 2023
orders/directions of the State Government, and that as per
the said Circular dated 25.6.1999, the seniority is to be
counted from the date of appointment, but in view of
paragraph 13 of GSR 28 dated 9.7.1993, petitioners are
entitled for, grade 1 pay-scale from the date of passing
Teachers Training Examination i.c. 3.5.2002.
115. The learned Single judge taking note of the fact that
petitioners were appointed in September/October 1994 under
the matric trained scale and were subsequently, sent for
training in 1998, and the result was published only in 2002
on the intervention of the Court, therefore, the petitioners
were not at fault in not getting training. Therefore, it was held
that the petitioners' case should be considered for having
their seniority from the date of their appointment. They
should also be considered for giving benefit of. Grade-IV
scales after completion of 8/12 years of their service.
Accordingly, the petitioners were granted liberty to file
individual representations, on which, the Director, Human
Resources Development Department (Primary Education),
Government of Jharkhand, Ranchi was directed to pass
necessary orders in terms of the order passed by writ Court.
116. The order passed by writ Court in the case of Arun
Sinha (supra) attained finality up-to Hon‟ble Supreme Court.
- 70 - L.P.A. No. 482 & 478 of 2023
117. From perusal of judgment passed in Arun Sinha
(supra), it is evident that learned Court has held that case of
the petitioners, who were appointed sometimes in the year
1993-94, may be considered for having their seniority from
the date of their initial appointment and not from the date of
completion of training, as it is the State because of which the
teachers training of the petitioners could not be completed in
time and result of which was also published after much
delay. It was further directed to consider the case of the
petitioners for giving benefit of. Grade-IV scales after
completion of 8/12 years of their service.
118. Similar prayer was made in batch of writ petitions
leading case is Sunil Kumar Bhagat (supra), wherein
allegedly the petitioners were appointed in the year
1987/1988/1994 or 1999-2000 and prayed for grant of
Grade-I Scale and seniority from the date of their initial
joining as Assistant Teachers in Elementary Schools within
the State relying upon the judgment rendered by this Court
in the case of Arun Sinha & others Vrs. State of
Jharkhand & others passed in W.P.S. No. 638 of 2006
dated 04.04.2008 on the ground that delay in obtaining the
Teachers' Training qualification was not on account of their
fault.
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119. During pendency of the writ petition, the respondent-
Secretary, Human Resources Development Department,
Government of Jharkhand was also asked to take a call on
the necessity to issue general executive instructions/circulars
to all the District authorities laying down clear-cut guidelines
to deal with the matters, which are covered by the ratio laid
down in the case of Arun Sinha & others (Supra).
120. In terms thereof, the resolution bearing memo no. 3027
dated 14.12.2015 containing the policy decision of the State
on the aforesaid issue in terms of the ratio laid down in the
case of Arun Sinha & others (Supra) was brought on
record, wherein taking note of the fact that ratio laid down in
the case of Arun Sinha & others (Supra) has been affirmed
up-to the Hon‟ble Supreme Court, laid down guidelines,
wherein it is decided that teachers appointed in the year
1987 and 1988 shall be entitled to Grade I from the date of
their initial appointment and inter se seniority shall be
counted from the date of their initial appointment. Further,
the teachers appointed in the year 1991, 1994, 1999-2000
shall be entitled to Grade I from the date of their initial
appointment and inter se seniority shall be counted from the
date of their initial appointment. It was further decided that
the inter se seniority amongst above category of teachers will
be decided on basis of the date of their initial appointment
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and further promotion shall be granted on the basis of
Promotion Rules, 1993.
121. In terms of the aforesaid circular/resolution, the writ
petition was disposed of holding that the cases of individual
petitioners who fall within the terms of the resolution dated
14.12.2015 be considered by the respondents- District
authorities. The District Superintendent of Education of
respective districts would examine the individual cases as per
the procedure laid down by placing the matter before the
District Education Establishment Committee for taking an
informed decision in respect of individual claims in
accordance with law and the aforesaid policy decision within
a reasonable time, preferably 16 weeks from the date of
receipt of copy of this order.
122. There is no dispute about the aforesaid proposition of
law laid down in the case of Arun Sinha (supra), Sunil
Kumar Bhagat (supra) since no issue of adversity being
caused to the direct recruits was there, rather, the in the case
of Arun Sinha (supra) prayer was made to grant Grade IV as
they have also completed the requisite period 8/12 years in
service on the ground that petitioners were not at fault in not
acquiring training. State had taken the ground that the
seniority is to be counted from the date of appointment, but
in view of paragraph 13 of GSR 28 dated 9.7.1993,
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petitioners are entitled for Grade 1 pay-scale from the date of
passing Teachers Training Examination i.c. 3.5.2002.
However, the learned Single judge considering the fact that
the petitioners were not at fault in not getting training held
that the petitioners' case should be considered for having
their seniority from the date of their appointment. They
should also be considered for giving benefit of. Grade-IV
scales after completion of 8/12 years of their service.
123. Similar prayer was made in batch of writ petitions
leading case is Sunil Kumar Bhagat (supra), wherein the
petitioners, who were appointed in the year 1987/1988/1994
or 1999-2000, made prayed for grant of Grade-I Scale and
seniority from the date of their initial joining as Assistant
Teachers by relying upon the judgment rendered by this
Court in the case of Arun Sinha & others Vrs. State of
Jharkhand & others (supra). During pendency of the case,
on the direction of the Court, resolution dated 14.12.2015
was brought on record by the State, wherein it has been
decided that teachers appointed in the year 1987 and 1988
shall be entitled to Grade I from the date of their initial
appointment and inter se seniority shall be counted from the
date of their initial appointment. In terms of the aforesaid
circular/resolution, the writ petition was disposed of.
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124. Admittedly, the day when the judgment was passed, in
the case of Arun Sinha (supra) there was no existence of
Rules, 2012 carving out a provision for direct recruitment in
Grade IV on the post of Graduate Trained Teacher.
125. This Court, therefore, is of the view that the reliance
which has been placed and taken note of by the learned
Single Judge in the case of Arun Sinha (supra) stating that
the issue of retrospectivity has been dealt with in those cases,
and on the principle laid down therein the private
respondents have been granted retrospective promotion, is
not acceptable and we are not in agreement with such stand
reason being that either in the case of Arun Sinha (supra) or
in the case of Sunil Kumar Bhagat (supra) there was no
issue of adverse interest of the party concerned or the issue
of adverse interest of direct recruits, as the case herein.
126. But the authority concerned without taking note of
these facts granted promotion to private respondents vide
memo dated 28.12.2016 with retrospective effect from
01.04.2015.
127. It is settled position of law that the retrospective
promotion without taking into consideration the predicament
of the others is not permissible reason being that when a
third party interest is being jeopardized then the
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circumspection is to be made so as not to infringe the right of
others.
128. While granting retrospective promotion, the matter
would have different if the right of none of the parties is being
infringed, then the retrospective promotion can be granted.
129. So far as the argument of emphasizing Rule 8 of the
Rules, 1993 is concerned the same has already been referred
above, which deals with the inter se seniority in the same
Grade, which speaks that 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, where-ever required, shall be the basis.
130. It is evident therefrom that the Rule 8 of Rules, 1993
only speaks with respect of interest of the promotes of inter se
seniority of same cadre and same is not related with the inter
se seniority of „promotees‟ from I to Grade IV vis-à-vis direct
recruits under Grade IV appointed on the post of „Graduate
Trained Teacher‟, since at the time when the Rules, 1993 was
formulated, there was no concept of direct recruits on the
post of Trained Graduate Teacher in Grade IV directly rather
the concept of direct appointment of Trained Graduate
Teacher in Grade IV comes only after coming into effect of
Right of Children to Free and Compulsory Education Act,
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2009 in terms of which the Jharkhand Primary School
Teacher Appointment Rules, 2012 was framed by the State of
Jharkhand for making direct recruitment on the post of
Graduate Trained Teacher in Grade IV.
131. Therefore, the contention which has been raised that
whatever submission has been made that in terms of Rule 8
is having no bearing with respect to the present issue.
132. Furthermore, the Rule 8 of Rules, 1993 cannot be read
to be in isolation without taking into consideration the
interest of direct recruits, who have been appointed in terms
of provisions of Rules, 2012.
133. The issue of infirmity in Rules, 1993, in particular Rule
8 is also not there and based upon that if the promotion has
been granted is also not the issue but the concerned of this
Court is that while granting such promotion can it said to be
justified action on the part of the State in depriving the right
of the seniority of direct recruits, who admittedly have come
in the Cadre prior to that of promotes, and by giving
retrospective promotion the direct recruits [writ petitioners]
have been lowered down in seniority list which certainly
hamper the future promotion of direct recruits.
134. The law is also well settled with retrospective seniority
cannot be granted to an employee from a date when the
employee was not borne on a cadre. Seniority amongst
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members of the same grade has to be counted from the date
of initial entry into the grade, reference in this regard be
made to the judgment rendered in the case of Ganga Vishan
Gujarati & Ors. Vs. State of Rajasthan & Ors. [(2019) 16
SCC 28], wherein the Hon‟ble Apex Court in the background
of the factual aspect has laid down following proposition of
law, as under paragraph 45 which reads as under:
45. A consistent line of precedent of this Court follows the
principle that retrospective seniority cannot be granted to
an employee from a date when the employee was not
borne on a cadre. Seniority amongst members of the same
grade has to be counted from the date of initial entry into
the grade. This principle emerges from the decision of the
Constitution Bench of this Court in Direct Recruit Class II
Engg. Officers' Assn. v. State of Maharashtra [Direct
Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339] . The
principle was reiterated by this Court in State of
Bihar v. Akhouri Sachindra Nath [State of Bihar v. Akhouri
Sachindra Nath, 1991 Supp (1) SCC 334 : 1991 SCC (L&S)
1070] and State of Uttaranchal v. Dinesh Kumar Sharma [State
of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 :
(2007) 1 SCC (L&S) 594] . In Pawan Pratap Singh v. Reevan
Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 :
(2011) 1 SCC (L&S) 481] , this Court revisited the precedents on
the subject and observed : (SCC pp. 281-82, para 45)
"45. ... (i) The effective date of selection has to be understood in
the context of the Service Rules under which the appointment is
made. It may mean the date on which the process of selection
starts with the issuance of advertisement or the factum of
preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be
determined as per the Service Rules. The date of entry in
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a particular service or the date of substantive
appointment is the safest criterion for fixing seniority
inter se between one officer or the other or between one
group of officers and the other recruited from different
sources. Any departure therefrom in the statutory rules,
executive instructions or otherwise must be consistent with the
requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from
the backdate and if it is done, it must be based on
objective considerations and on a valid classification and
must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
relevant Service Rules. It is so because seniority cannot
be given on retrospective basis when an employee has not
even been borne in the cadre and by doing so it may
adversely affect the employees who have been appointed
validly in the meantime."
This view has been re-affirmed by a Bench of three Judges of
this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar
Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S)
690] .
[Emphasis supplied]
135. The Hon‟ble Apex Court in the case of Ganga Vishan
Gujarati & Ors. Vs. State of Rajasthan & Ors. (supra)
taking reference of the judgment rendered by Constitution
Bench of Hon‟ble Apex Court in the case of Direct Recruit
Class II Engg. Officers' Assn. v. State of
Maharashtra [Direct Recruit Class II Engg. Officers'
Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990
SCC (L&S) 339], in which, it has been held that inter se
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seniority in a particular service has to be determined as per
the Service Rules. The date of entry in a particular service or
the date of substantive appointment is the safest criterion for
fixing seniority inter se between one officer or the other or
between one group of officers and the other recruited from
different sources. Any departure therefrom in the statutory
rules, executive instructions or otherwise must be consistent
with the requirements of Articles 14 and 16 of the
Constitution. Ordinarily, notional seniority may not be
granted from the backdate and if it is done, it must be based
on objective considerations and on a valid classification and
must be traceable to the statutory rules.
136. The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given retrospectively
unless it is so expressly provided by the relevant Service
Rules. It is so because seniority cannot be given on
retrospective basis when an employee has not even been
borne in the cadre and by doing so it may adversely affect the
employees who have been appointed validly in the meantime.
137. Further reference in this regard be made to the
judgment rendered in the case of Nani Sha & Ors. Vs. State
of Arunachal Pradesh & Ors. [(2007) 15 SCC 406],
wherein in the similar fact situation, the appellants were
promoted from the post of Forest Rangers to Assistant
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Conservator of Forests in the year 2002 in accordance with
Arunachal Pradesh Forest Service Rules, but they were given
seniority retrospectively from 1994 which made them senior
to direct recruits who had been appointed in the year 1996.
Legal issue involved was whether the Rules prescribed any
quota for promotees, under which the promotees should get
retrospective seniority according to their quota. Rule 5(α)
provided that 50% of substantive "vacancies" which occur
from time to time in the authorised permanent strength of the
service shall be filled by direct recruitment. Similarly, Rule
5(b) provided that the remaining substantive "vacancies"
should be filled by promotion. Besides, Rule 25(c) provided
that "... relative seniority of direct recruits and of promotees
shall be determined according to rotation of vacancies
between direct recruits and promotees which shall be based
on the quotas of vacancies reserved for direct recruitment
and promotion under Rule 5.
138. From the above provision, the High Court inferred that
there was no quota between the promotes and direct recruits
in the un-amended Rule 5. The High Court therefore held
that promotes who were promoted in 2002, could not be
given seniority retrospectively from 1994 when they were still
working on the feeder post of Forest Ranger. Aggrieved
thereof, the appellant moved the Supreme Court. The Hon‟ble
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Supreme Court held that the High Court was right in holding
that promote appellants could not be given seniority from the
date they were not even borne in the cadre. The appellants
were working under the direct recruits right from 1996 till
2002. It would therefore, be unfair to allow appellants to steal
a march over direct appointees under whom they worked
practically for eight years. There is no justification in
upsetting the whole balance at this point of time.
139. For ready reference, the relevant paragraphs of the
judgment is quoted as under:
3. The appeal has been filed by five appellants challenging
the judgment of the Division Bench of the Gauhati High Court
whereby the judgment of the learned Single Judge of the High
Court was confirmed. The learned Single Judge had allowed
the writ petition filed by the respondents herein. In the writ
petition the respondents herein, who are the directly
appointed Assistant Conservator of Forests (hereinafter
referred to as "ACF", for short) had challenged an Order
passed by the State of Arunachal Pradesh dated 8-6-2004
vide No. FOR 376/E(A)/2001/4901-61 granting retrospective
effect promotions to the appellants herein with effect from 2-
11-1994. With that retrospective effect Respondents 3 to 7
herein became junior to the appellants since they were all
appointed in the year 1996 after direct examination to the
post of ACF. The learned Judge found that giving such
retrospective effect would be illegal and on the date
concerned they were not even borne on the cadre of ACF
and were only serving as Range Forest Officer. He also
found that in the unamended Rule 5 which provided for
method of recruitment, there was no 50:50 quota for the direct
recruits and the promotees, which quota came to be
introduced only by way of an amendment effected to the
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Arunachal Pradesh Forest Rules vide Notification No.
FOR.391/E-A/90/32343 dated 24-9-1999 and as such even
if the respondents herein were given more than 50% posts in
the cadre of ACF, it was permissible and as such the
promotions made of the appellants herein for the first time in
the year 2001 could not be dated back by giving retrospective
effect from the year 1994.
4. In order to understand the controversy some facts would
be necessary. All the present appellants herein started their
career in the post of Forest Rangers and after their training in
the Forest Rangers College, Kurseong, they were appointed
as Forest Rangers with effect from 7-7-1984. The post of
Forest Rangers is the feeder post for the post of ACF. There
are service rules for governing the service conditions called
the Arunachal Pradesh Forest Service Rules. These Rules
provide, inter alia, that a Forest Ranger would have to put in
five years of service before being promoted to the post of ACF.
In that way the appellants herein had become entitled for
being considered for promotion by 1989. They were, however,
not promoted in the year 1989 and were in fact promoted on
10-6-2002. However, in the meantime the respondents herein
were selected after the competitive examination and were
appointed in the year 1996. Naturally, the respondents herein
were senior to the appellants in the cadre of ACF. The
Government on account of the representations made
constituted another Departmental Promotion Committee
(hereinafter referred to as "DPC", for short) and the present
appellants were awarded the notional promotion with
retrospective effect i.e. from December 1994. This Order was
passed on 20-5-2004. Because of this Order all the
appellants would become senior to all the directly appointed
respondents and for this precise reason the said Order came
to be challenged before the Gauhati High Court which
challenge was accepted by the learned Single Judge and the
judgment of the learned Single Judge was confirmed by the
Division Bench which has necessitated the present appellants
to come before us.
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13. Reverting back to the effect of the proviso, we do not find
anywhere any such intention to apply the proviso with
retrospective effect. In order to make a provision
applicable with retrospective effect, it has to be
specifically expressed in the provision. We do not find
such an expression in the said proviso. Nothing had
stopped the Government before amending the Rule to
word it specifically, making it retrospective. That was
not done and we are not prepared to hold that the Rule
is retrospective. Secondly, we cannot countenance the
argument that the Rule has a clarificatory nature. The Rule,
for the first time, creates a quota and thus crystallises the
rights of the direct appointees and the promotees which was
not there earlier. It, therefore, cannot be viewed as a
clarificatory amendment. Again whether the amendment is
clarificatory or not would depend upon the language of the
provision as also the other Rules. We have examined the
Rules which did not suggest that there was any quota
existing as such. On the other hand we see Rule 25 which is
a Rule regarding seniority and more particularly Rule 25(c). It
is apparent from the language of the Rule that the
Government thought otherwise. Rule 25(c) is as under:
"25. (c) The relative seniority of direct recruits and of
promotees shall be determined according to the rotation of
vacancies between direct recruits and promotees which shall
be based on the quotas of vacancies reserved for direct
recruitment and promotion under Rule 5."
This language suggests that the only quota that was
contemplated was as per Rule 5 which we have already
explained in the earlier part of the judgment which suggests
the 50% quota only in the "substantive vacancies which
occurred from time to time" and not the whole vacancies in
the cadre. We are, therefore, unable to accept the argument of
the learned counsel for the appellants.
14. Therefore, one thing is certain that the appellants did not
have right to claim a retrospective seniority, particularly over
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and above the respondents who had been working in the post
of ACF right from July 1996.
15. This Court in a reported judgment in State of
Uttaranchal v. Dinesh Kumar Sharma [(2007) 1 SCC 683 :
(2007) 1 SCC (L&S) 594] has clearly held that the seniority is
to be reckoned not from the day when the vacancy arose but
from the date on which the appointment is made to the post.
There this Court was interpreting Rules 17 and 21 of the U.P.
Agriculture Group B Service Rules, 1995 and Rule 8 of the
U.P. Government Servants' Seniority Rules, 1991. This Court
disapproved the stance taken by the High Court that the
directions should have been given not from the date of
appointment but with retrospective effect when the vacancy
arose. The following observations in para 34 are speaking
and would close the issue: (SCC pp. 691-92)
"34. Another issue that deserves consideration is whether the
year in which the vacancy accrues can have any relevance
for the purpose of determining the seniority irrespective of the
fact when the persons are recruited. Here the respondent's
contention is that since the vacancy arose in 1995-1996 he
should be given promotion and seniority from that year and
not from 1999, when his actual appointment letter was
issued by the appellant. This cannot be allowed as no
retrospective effect can be given to the order of appointment
order under the Rules nor is such contention reasonable to
normal parlance. This was the view taken by this Court
in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4 SCC 456 :
1998 SCC (L&S) 1156] ."
16. Lastly, the High Court has specifically rejected the claim
of the appellants on another ground, namely, that the
appellants were not borne in the cadre of ACF on the date
from which they have been given the seniority. We are in
complete agreement with the High Court, particularly in view
of the decision of this Court in State of Bihar v. Akhouri
Sachindra Nath [1991 Supp (1) SCC 334 : 1991 SCC (L&S)
1070 : (1991) 16 ATC 936] which decision was reiterated
in State of Bihar v. Bateshwar Sharma [(1997) 4 SCC 424 :
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1997 SCC (L&S) 975] . We do not want to burden this
judgment with further reported decisions. However, the same
view has been taken in another reported decision of this
Court in Uttaranchal Forest Rangers' Assn. (Direct
Recruit) v. State of U.P. [(2006) 10 SCC 346 : (2007) 1 SCC
(L&S) 116 : JT (2006) 12 SC 513] where in para 18 this Court
has taken a view that no retrospective promotion or
seniority can be granted from a date when an employee
has not even been borne in the cadre so as to be
adversely affecting those who were appointed validly in
the meantime.
17. There is still one another reason for our concurring with
the High Court's judgments. There cannot be any dispute that
all through right from 1996 when the respondents were
appointed till 2002, the appellants were working under them
in capacity of the Range Forest Officers; the appellants came
in those posts and started exercising the powers and duties
of the post of ACF only from 2002. It would be, therefore,
very unfair to allow the appellants to steal a march
over the direct appointees under whom they worked
practically for eight years. On this ground we concur with
the High Court that at this point of time there would be no
justification in upsetting the whole balance.
[Emphasis supplied]
140. In the case of Sk. Abdul Rashid & Ors. Vs. State of
Jammu & Kashmir [(2008) 1 SCC 722], the Hon‟ble Apex
Court taking note of catena of judgments passed by Hon‟ble
Apex Court held that retrospective promotion in this case
having effect of conferring higher seniority on private
respondents vis-à-vis appellants, such retrospective
promotion was against the statutory rules, therefore, set
aside the impugned judgment.
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141. For ready reference, the relevant paragraphs of the
judgment is quoted as under:
16. In State of Bihar v. Akhouri Sachindra Nath [1991 Supp
(1) SCC 334 : 1991 SCC (L&S) 1070 : (1991) 16 ATC 936] this
Court held : (SCC p. 342, para 12)
"12. ... It is well settled that no person can be promoted
with retrospective effect from a date when he was not
born in the cadre so as to adversely affect others. It is
well settled by several decisions of this Court that amongst
members of the same grade seniority is reckoned from the
date of their initial entry into the service.
17. In Kaushal Kishore Singh v. Dy. Director of
Education [(2002) 9 SCC 634 : 2002 SCC (L&S) 1090] this Court
stated the law, thus : (SCC p. 635, para 5)
"5. The claim of seniority of the employee is always
determined in any particular grade or cadre and it is not the
law that seniority in one grade or cadre would be dependent
on the seniority in another grade or cadre."
18. In State of Uttaranchal v. Dinesh Kumar
Sharma [(2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] it was
opined : (SCC pp. 691-92, para 34)
"34. Another issue that deserves consideration is whether
the year in which the vacancy accrues can have any
relevance for the purpose of determining the seniority
irrespective of the fact when the persons are recruited. Here
the respondent's contention is that since the vacancy arose
in 1995-1996 he should be given promotion and seniority
from that year and not from 1999, when his actual
appointment letter was issued by the appellant. This cannot
be allowed as no retrospective effect can be given to the
appointment order under the Rules nor is such contention
reasonable to normal parlance. This was the view taken by
this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4
SCC 456 : 1998 SCC (L&S) 1156] ."
19. Similarly, although the statute provides for grant of
officiating promotion, but the same is not conducive in the sense
- 87 - L.P.A. No. 482 & 478 of 2023
that even after getting officiating promotion, one may be reverted
to the original post held by him. We do not mean to say that the
seniority would be reckoned from the date of confirmation but we
only intend to point out that the Rules having been provided for
officiating promotion, the learned Single Judge was correct in
taking that factor also into consideration for the purpose of
determining the validity of the impugned order before the High
Court. The said order dated 3-12-1985 even otherwise appears
to be mala fide having been passed for unauthorised purpose. If
the said order dated 3-12-1985 is read with the earlier one being
dated 1-8-1985, the intention of the Government to favour the
private respondents herein becomes explicit. It is not expected of
a Government to brazenly favour one set of employees so as to
defeat the bona fide claim of the other set of employees. We,
therefore, are of the opinion, that the impugned judgment cannot
be sustained which is set aside accordingly. The appeals are
allowed.
142. It is, thus, evident by going through the aforesaid
judgment that retrospective promotion is permissible but if
the same is causing adverse impact upon the others, the
same is not permissible and further the retrospective
promotion cannot be granted from the date when the
concerned employee has not taken birth in the cadre.
143. Adverting to the factual aspect of the present case, it is
admitted case of the private respondents that they have been
promoted vide issuance of notification dated 28.12.2016 with
retrospective effect from 01.04.2015 but in the meanwhile,
the writ petitioners-appellants have been appointed through
direct mode in pursuance to the advertisement floated under
the Rules, 2012. They have been inducted in the cadre
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through direct mode of recruitment w.e.f. December, 2015
and January, 2016 but by granting retrospective promotion
w.e.f. 01.04.2015, the private respondents have been made
senior to that of direct recruits; meaning thereby they have
been inducted in service the day when the private
respondents did not born in the cadre.
144. Therefore, the law laid down by Hon‟ble Apex Court in
the judgment rendered hereinabove in the case of Ganga
Vishan Gujarati & Ors. Vs. State of Rajasthan & Ors.
(supra); Direct Recruit Class II Engg. Officers'
Assn. v. State of Maharashtra [Direct Recruit Class II
Engg. Officers' Assn. v. State of Maharashtra (supra);
Nani Sha & Ors. Vs. State of Arunachal Pradesh &
Ors.(supra) and Sk. Abdul Rashid & Ors. Vs. State of
Jammu & Kashmir (supra), the retrospective promotion
granted in favour of the private respondents vide order dated
28.12.2016 w.e.f. 01.04.2015 causing adverse impact upon
the direct recruits cannot be said to be justified and requires
interference by this Court.
145. The writ petitioners have also challenged the policy
decision as contained in Memo No. 619 (Vidhi) dated
26.08.2021 issued by Joint Secretary to the Government,
School Education and Literacy Department, Govt. of
Jharkhand, whereby a decision has been taken for giving
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promotion to the teachers, who are working in Grade-3, 4
and 7, on notional basis and further decision has been taken
to grant promotion with retrospective effect from the date of
availability of vacancy.
146. The said policy decision has been taken by the State on
the strength of direction passed by learned writ Court in
W.P.(S) No. 7392 of 2017 [Nand Kishor Nayak Vs. State of
Jharkhand & Ors] disposed of vide order dated 26.09.2018,
wherein prayer has been made for direction upon the
respondents-State to pay them monetary benefits upon grant
of Grade-I from the date of appointment and further grade-II,
as per the decision of the Hon'ble Court, passed in
W.P.(S)No.638 of 2006 (Arun Sinha & ors. vs. the State of
Jharkhand & ors.). The learned Single Judge after hearing
the parties directed the State to take a uniform decision for
extending the actual benefits of promotion to the petitioners.
147. For ready reference, the relevant portion of order passed
in Nand Kishor Nayak Vs. State of Jharkhand & Ors
(supra) is quoted as under:
"The petitioners have approached this Hon'ble
Court with a prayer for direction upon the respondents
to pay them monetary benefits upon grant of Grade-I
from the date of appointment and further grade-II, as
per the decision of the Hon'ble Court, passed in
W.P.(S)No.638 of 2006 (Arun Sinha & ors. vs. the State
of Jharkhand & ors.) which has been affirmed in
L.P.A.No.214 of 2008 and analogous cases and also up to
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the Hon'ble Supreme Court and in compliance of said
judgment, the circular of the Govt. 2 vide memo No.3027
dated 14.12.2015 issued by the Directorate of School
Education & Literacy, Govt. of Jharkhand, as the promotion
in Grade II has already been granted vide Memo No.1683
dated 15.05.2017.
2. The factual exposition as has been delineated in the writ
petition is that the petitioners are working as Assistant
Teachers in the district of Bokaro and they have joined their
respective posts on the different dates in 1994 & 1999 but
they have been denied the monetary benefits and even the
notional benefits, though they were entitled for the same in
view of resolution of the State Govt. dated 14.12.2015. The
issue regarding grant of monetary benefits to the
trained/untrained teachers fell for consideration before this
Hon'ble Court in W.P.(S)No.638 of 2006 and this Hon'ble
Court vide its order dated 04.04.2008 had observed that in
view of earlier decisions of this Hon'ble Court in other cases
particularly, in W.P.(S)No.6264 of 2005 (Jharkhand Police
Association Vs. State of Jharkhand), the matric
trained/untrained teachers are also entitled for Grade-I scale
from the date of their initial appointment. The order passed
in W.P.(S)No.638 of 2006 was affirmed by the Hon'ble
Division Bench of this Court in LPA No.214 of 2008 and the
same was also affirmed upto the Hon'ble Apex Court in SLP
No.5520- 5522 of 2013. In view of the fact that the order
passed in W.P.(S)No.638 of 2006 was affirmed upto the
Hon'ble Apex Court, the State of Jharkhand came-out with a
resolution dated 14.12.2015, issued under the pen and
signature of the Secretary, School Education & Literacy
Department, Govt. of Jharkhand granting therein the matric
trained scale to the teachers from date of their initial
appointment in case of their promotion to Grade-I and II.
Though the issue is set at rest and it is no more res-integra,
the same was not implemented by the State Govt. in true
letter and spirit. Though the petitioners were granted Grade-I
and II from the date of their initial appointment but they were
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denied the monetary benefits, which is dehors the rules.
Aggrieved by the same, the petitioners represented before
the respondent No.4 but no orders have been passed till date
and as such, petitioners have been constrained to knock the
door of this Hon'ble Court.
3. Mr. Amit Kumar Tiwari, learned Counsel appearing for
the petitioners strenuously urges that issue involved in this
case is no more resintegra and the same is set at rest by the
Hon'ble Apex Court. In view of the decision of the Hon'ble
Apex Court, the State has also come out with a resolution
dated 14.12.2015 but the same has not been implemented in
true letter and spirit and as such, a direction be given to the
respondents, particularly, respondent No.3 to implement its
own resolution dated 14.12.2015, in view of which
petitioners are entitled for notional benefits 3 from the date of
their initial appointment and monetary benefits from
15.11.2000 as they have already been placed in Grade-I
scale from the date of appointment.
4. Though no counter-affidavit has been filed. However, Mr.
Sumir Prasad, S.C. I very fairly submits that the State is fully
aware that issue is no more res-integra and the matter has
been set at rest by the Hon'ble Apex Court and in view of
that, State has come-out with a resolution for granting
monetary benefits/notional benefits to the matric trained
teachers from the date of their initial appointment but
because of some unavoidable reasons, the same could not be
implemented and several representations are pending before
the respondents and as such, a decision is going to be taken
in this regard taking into consideration the direction of the
Hon'ble Apex Court as well as their own resolution dated
14.12.2015.
5.Be that as it may, having gone through the submissions of
the parties and after perusing the relevant records, this
Court is of the view that issue regarding giving benefits of
Grade-I pay scale fell for consideration before this Hon'ble
Court and the Hon'ble Court had observed that teachers are
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entitled for benefits from the date of their initial appointment
and the same was affirmed upto the Hon'ble Apex Court and
hence, the issue is no more res-integra. The State Govt. has
also come-out with a resolution No.3027 dated 14.12.2015
for implementing the same regarding grant of benefits from
the date of initial appointment but unfortunately, the same is
not implemented so far. The teachers are suffering as they
are not getting their benefits though the issue has been set at
rest by the Hon'ble Apex Court. Thereafter, several writ
petitions have been filed for the same relief and several
orders have been passed by the Hon'ble Court for granting
the benefits of Grade-I from the date of initial appointment.
A very fair submission has been made by the learned
Counsel that if the petitioners are not entitled for monetary
benefits from the date of their initial appointment, they are at
least entitled for notional benefits from the date of their initial
appointment and monetary benefits from 15.11.2000, as
contained in para-15(iv) of the resolution dated 14.12.2015
and also in view of settled principles of law. This submission
of learned Counsel is appreciated by this Court.
As such, respondent No.4 is directed to take a
uniform decision in case of teachers for granting the
benefits of Grade-I Scale keeping into account the
decision of this Hon'ble Court in case of "Arun Sinha &
Ors. vs. the State of Jharkhand & Ors., passed in
W.P.(S)No.638 of 2006 which was affirmed upto the
Hon'ble Apex Court and in view of the fact 4 that State has
already come-out with a resolution No.3027 dated
14.12.2015. Needless to say that if the petitioners are
granted promotion and thus entitled for monetary benefits
also and accordingly are entitled for the benefits as prayed
for, in view of decision of the Hon'ble Apex Court and in view
of resolution dated 14.12.2015.
6. It was brought to the notice of the Court that in view
of several orders passed by this Court taking into
consideration the orders passed by the Division Bench
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as well as Supreme Court, the State of Jharkhand has
given actual monetary benefits to Assistant Teachers
of all the districts of the State of Jharkhand save and
except Bokaro, Jamshedpur, Dumka and Chaibasa. The
instant case relates to Bokaro. Earlier also the order was
passed by this Court in W.P.(S)No.2128/2018 relating to
Jamshedpur i.e. East Singhbhum.
7. It appears that respondents have adopted method of
pick and choose. The Assistant Teachers of
Jamshedpur, Bokaro, Dumka and Chaibasa have been
discriminated whereas the ratio of the Supreme Court
applies in each and every case. If the teachers have been
considered for granting promotion and have been granted,
they are very much entitled for the monetary benefits also as
per the settled proposition of law as it has been held in the
case of "Dr. Paras Nath Singh Vs. State of Bihar, reported in
1990(2) PLJR 248; Md. Hafiz vs. State of Bihar, reported in
2003 (2) PLJR 44; Suryadeo Prasad vs. the State of
Jharkhand, reported in 2010 (3) JCR 238 and in case of
W.P.(S) No.1932 of 2005 (Rajeshwar Prasad Vs. the State of
Jharkhand) wherein this Court has held that promotion
should be granted with all consequential benefits from the
date it fallen due and as such, the respondents cannot be
allowed to proceed against the orders passed by the Hon'ble
Courts. Time and again it has been held that seniority will be
counted from the date of initial appointment. The Assistant
Teachers are entitled for monetary benefits from the date of
promotion though a decision has been taken by the
respondent-State that Assistant Teachers are not entitled for
monetary benefits prior to the State of Jharkhand came into
existence but admittedly they are entitled for monetary
benefits from the date the State of Jharkhand came into
existence or from the date a decision to that effect was taken
by the State i.e. 05.07.2002. Surprisingly the benefits
have been extended to all the teachers except the
teachers of Bokaro, Jamshedpur, Dumka and
Chaibasa. The stand of the respondent is
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discriminatory and in complete violation of Article 14,
I hereby direct the respondents, particularly,
respondent No.1 to take a uniform decision for
extending the actual benefits of promotion to the 5
petitioners within a period of 12 weeks from the date
of receipt of a copy of this order.
Let a copy of this order be circulated to the
departmental heads of all the districts of Jharkhand.
The Secretary of the Education Department is directed
to circulate the order to all concerned authorities, who are
responsible for making payment. The entire exercise of such
circulation of order shall be completed within a period of 4
weeks. 8. Accordingly, the writ petition stands disposed of."
148. It is evident from the said judgment that neither there
was prayer for grant of Grade IV promotion with retrospective
promotion nor there was consideration of Rules, 2012 though
the decision has been taken by the State much after framing
of Rules, 2012 and appointment of direct recruits in the year
December, 2015. The State in the said policy decision as
contained in order dated 26.08.2021 also did not taken care
of inter se seniority of direct recruits on the post of Trained
Graduate Teachers in Grade IV vis-à-vis promotes from Grade
I onwards.
149. Therefore, since in the said judgment there is no issue
of granting Grade IV promotion taking into consideration inter
se seniority between „direct recruits appointed as per Rule
2012‟ and promotes appointed as per Rules, 1991, as in the
instant case, but the State based upon the finding so given in
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W.P.(S) No. 7392 of 2017 [Nand Kishor Nayak Vs. State of
Jharkhand & Ors], the impugned order/decision of the state
as contained in Memo No. 619 dated 26.08.2021 cannot be
said to be justified.
150. Though, generally policy decision is not to be interfered
with by the High Court in exercise of power of judicial review
but it is also settled that that if the policy decision suffers
from error or irrational then it is to be interfered with.
151. This Court, in order to examine the aforesaid
argument/ground, first deems it fit and proper to refer the
position of law regarding the power of judicial review to be
exercised in the matter of policy decision taken by the State.
152. This Court is aware of the settled law that the policy
decision of the State are not to be disturbed unless they are
found to be grossly arbitrary or irrational. In this context,
reference may be made to the judgment rendered by the
Hon'ble Apex Court in Federation of Railway Officers
Association and Ors. vs. Union of India, (2003) 4 SCC
289 wherein at paragraph-12, it has been held as follows:
"12. In examining a question of this nature where a policy is
evolved by the Government judicial review thereof is limited.
When policy according to which or the purpose for which
discretion is to be exercised is clearly expressed in the
statute, it cannot be said to be an unrestricted discretion. On
matters affecting policy and requiring technical expertise the
court would leave the matter for decision of those who are
qualified to address the issues. Unless the policy or action is
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inconsistent with the Constitution and the laws or arbitrary
or irrational or abuse of power, the court will not interfere with
such matters."
153. Reference may also be made to the judgment rendered
in Directorate of Film Festivals and Ors. vs. Gaurav
Ashwin Jain and Ors., (2007) 4 SCC 737, wherein the
Hon'ble Apex Court has been pleased to hold as under
paragraph-16 which reads as under:
"16. The scope of judicial review of governmental policy is
now well defined. Courts do not and cannot act as Appellate
Authorities examining the correctness, suitability and
appropriateness of a policy, nor are courts advisors to the
executive on matters of policy which the executive is entitled
to formulate. The scope of judicial review when examining a
policy of the Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the
provisions of the Constitution, or opposed to any statutory
provision or manifestly arbitrary. Courts cannot interfere
with policy either on the ground that it is erroneous or on the
ground that a better, fairer or wiser alternative is available.
Legality of the policy, and not the wisdom or soundness of
the policy, is the subject of judicial review."
154. Further, in Ugar Sugar Works Ltd. Vs. Delhi
Administration and Ors., (2001) 3 SCC 635, the Hon'ble
Apex Court has been pleased to hold that "The challenge,
thus, in effect, is to the executive policy regulating trade in
liquor in Delhi. It is well settled that the courts, in exercise of
their power of judicial review, do not ordinarily interfere with
the policy decisions of the executive unless the policy can be
faulted on grounds of mala fide, unreasonableness,
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arbitrariness or unfairness etc. Indeed, arbitrariness,
irrationality, perversity and mala fide will render the policy
unconstitutional. However, if the policy 11 L.P.A. No. 86 of
2018 cannot be faulted on any of these grounds, the mere fact
that it would hurt business interests of a party, does not justify
invalidating the policy. In tax and economic regulation cases,
there are good reasons for judicial restraint".
155. In Parisons Agrotech Private Limited and Anr. Vs.
Union of India and Ors., (2015) 9 SCC 657, the Hon'ble
Apex Court has observed as under paragraph-14 which reads
as under:
"14. No doubt, the writ court has adequate power of judicial
review in respect of such decisions. However, once it is found
that there is sufficient material for taking a particular policy
decision, bringing it within the four corners of Article 14 of the
Constitution, power of judicial review would not extend to
determine the correctness of such a policy decision or to indulge
into the exercise of finding out whether there could be more
appropriate or better alternatives. Once we find that parameters
of Article 14 are satisfied; there was due application of mind in
arriving at the decision which is backed by cogent material; the
decision is not arbitrary or irrational and; it is taken in public
interest, the Court has to respect such a decision of the executive
as the policy making is the domain of the executive and the
decision in question has passed the test of the judicial review."
156. In Jacob Puliyel vs Union of India and Others 2022
SCC OnLine SC 533 wherein at paragraphs-21 & 23, it has
been observed which reads as under:
"21. ... It is well settled that the Courts, in exercise of their power
of judicial review, do not ordinarily interfere with the policy
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decisions of the executive unless the policy can be faulted
on grounds of mala fide, unreasonableness, arbitrariness or
unfairness etc. Indeed, arbitrariness, irrationality,
perversity and mala fide will render the policy
unconstitutional. It is neither within the domain of the courts
nor the scope of judicial review to embark upon an enquiry
as to whether a particular public policy is wise or whether
better public policy can be evolved. Nor are the courts
inclined to strike down a policy at the behest of a petitioner
merely because it has been urged that a different policy
would have been fairer or wiser or more scientific or more
logical. Courts do not and cannot act as appellate
authorities examining the correctness, suitability and
appropriateness of a policy, nor are courts advisors to the
executive on matters of policy which the executive is entitled
to formulate. The scope of judicial review when examining a
policy of the Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the
provisions of the Constitution, or opposed to any statutory
provision or manifestly arbitrary. 23. There is no doubt that
this Court has held in more than one judgment that where
the decision of the authority is in regard to a policy matter,
this Court will not ordinarily interfere since decisions on
policy matters are taken based on expert knowledge of the
persons concerned and courts are normally not equipped to
question the correctness of a policy decision. However, this
does not mean that courts have to abdicate their right to
scrutinize whether the policy in question is formulated
keeping in mind all the relevant facts and the said policy
can be held to be beyond the pale of discrimination or
unreasonableness, bearing in mind the material on record.
In Delhi Development Authority (supra), this Court held that
an executive order termed as a policy decision is not beyond
the pale of judicial review. Whereas the superior courts may
not interfere with the nitty-gritty of the policy, or substitute
one by the other but it will not be correct to contend that the
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court shall lay its judicial hands off, when a plea is raised
that the impugned decision is a policy decision. Interference
therewith on the part of the superior court would not be
without jurisdiction as it is subject to judicial review. It was
further held therein that the policy decision is subject to
judicial review on the following grounds:
a) if it is unconstitutional;
b) if it is dehors the provisions of the Act and the
regulations; c) if the delegatee has acted beyond its power
of delegation;
d) if the executive policy is contrary to the statutory or a
larger policy.
157. Further, in Union of India and Others vs. Bharat
Forge Ltd. and Another, 2022 SCC OnLine SC 1018, the
Hon'ble Apex Court at paragraph-20 has observed as under:
"20. This Court also laid down paragraph 46 as follows:
"46. In Census Commr. v. R. Krishnamurthy [Census
Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 ], a three-
Judge Bench of this Court, after noting several decisions,
held that (SCC p. 809, para 33) it is not within the domain
of the courts to embark upon an enquiry as to whether a
particular public policy is wise and acceptable or whether a
better policy could be evolved and the courts can only
interfere if the policy framed is absolutely capricious or not
informed by reasons or totally arbitrary and founded on
ipse dixit offending the basic requirement of Article 14 of
the Constitution. It further observed that in certain matters,
as often said, there can be opinions but the court is not
expected to sit as an appellate authority on an opinion."
158. Thus, it is evident that the interference by way of
exercise of power under judicial review is only to the extent if
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it has been found that the action of the State is arbitrary and
suffers from the vice or malice.
159. It is evident from the aforesaid judgment that the scope
of judicial review in the matter of showing interference with
the policy decision is in a case where the decision is arbitrary
and suffers from the vice of malice and is in the teeth of
Article 14 of the Constitution of India.
160. This Court in the light of the aforesaid proposition and
discussions made hereinabove, is of the view since in the
policy decision there was non-consideration of the inter se
seniority of direct recruits, who were appointed under Rules,
2012 in the year December, 2015 vis-à-vis private
respondents, who were appointed in the year 1993-94, rather
was only consideration of the teachers appointed in the year
1987, 1988, 1999-2000 in Matric Trained Scale, as would
appear from paragraph 1 of the policy decision dated
26.08.2021, the said policy decision cannot be said to be just
and proper causing adverse impact upon the direct recruits.
161. This Court has failed to understand that though the
said policy decision was taken in the year 2021 and the
recruitment rule was made in the year 2012, based upon
which appointment was made in December, 2015 on the post
of Trained Graduate Teacher in Grade IV which the State did
not take care regarding policy decision for fixing the inter-se
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seniority between the private respondents [promotes] and the
writ petitioners [direct recruits].
162. Therefore, this Court is of the view that while making
out a policy decision the authority ought to have taken into
consideration the fact the direct recruits have been inducted
in service on the basis of the Rules, 2012.
163. But, it is evident from the consideration so made in the
said policy decision that there is no consideration of the
direct recruits, who have been appointed in the year
December, 2015 and January, 2016, and have been inducted
in service in terms of Rules, 2012 and it appears that as if
said policy decision has been prepared on the basis of
conception that there is no rule for making entry through
direct recruitment by way of Rules, 2012.
164. The moment the State has come out with a rule in the
year 2012 to make direct recruitment under proviso to Article
309 of the Constitution of India, then it is the bounden duty
of the State authority to make a balance in between the direct
recruits and the promotes.
165. Therefore, this Court is of the view that the said policy
decision for grant of retrospective promotion is contrary to
the law down by the Hon‟ble Apex Court on the pretext of the
fact that retrospective promotion granted in the context of the
present case causing impediment to the future prospect by
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putting the promotes above the direct recruits even though
they did not take birth, the day when the direct recruits
entered into service, as such it cannot be said to be just and
proper and is not sustainable in the eye of law.
166. This Court, after having discussed the aforesaid fact and
coming to the order passed by the learned Single Judge,
wherefrom it is evident that the learned Single Judge has not
appreciated the factual aspect in right prospective by taking
into consideration the factual aspect of the judgment
rendered in the case of Arun Sinha (supra) or Sunil Kumar
Bhagat (supra) was passed by this Court.
167. The learned Single Judge has also not taken into
consideration the factual aspect and the propriety of the
policy decision, as has been discussed in the preceding
paragraphs.
168. The learned Single Judge has further not appreciated
that merely the date of entry the consideration has been given
for promotion with retrospective effect which is only on the
compassion since the learned Single Judge has used the
word that „merely because the appointment of teachers in the
year 2015 onwards, the case of those who were already in
service right from 1994 onwards cannot be allowed to suffer.‟
169. The law is well settled that the issue of seniority cannot
be adjudged on the basis of compassion rather it is based
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upon the settled position of law, as per the discussion made
hereinabove.
170. This Court, in view of the entirety of facts and
discussions made hereinabove, is of the view that the order
passed by learned Single Judge requires interference.
171. Accordingly, the order dated 26.07.2023 passed by
learned Single Judge is hereby quashed and set aside.
172. Resultantly, impugned order dated 28.12.2016, whereby
the private respondents were granted promotion to Grade-IV
with retrospective effect from 01.04.2015 on notional basis, is
hereby quashed and set aside only to the effect that it would
not have retrospective effect causing adverse effect upon the
direct recruits [writ petitioners].
173. Since, in the policy decision dated 26.08.2021 there is
non-consideration of the inter se seniority of direct recruits,
who were appointed under Rules, 2012 in the year December,
rather there is only consideration of the teachers appointed in
the year 1987, 1988, 1999-2000 in initial Matric Trained
Scale, as would appear from paragraph 1 of the policy
decision dated 26.08.2021, and further the State did not take
care in the said policy decision for fixing the inter-se seniority
between the private respondents [promotes] and the writ
petitioners [direct recruits], causing adverse effect upon the
direct recruits [writ petitioners], even after coming out of new
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recruitment Rules, 2012 and pursuant thereto appointment
made thereunder in the year December, 2015, therefore, the
policy decision dated 28.06.2021 is hereby quashed and set
aside.
174. Resultantly, the State is directed to prepare a fresh
policy decision taking into consideration the inter-se seniority
between the private respondents [promotes] and the writ
petitioners [direct recruits].
175. Accordingly, the State is directed to prepare and publish
fresh seniority list of teachers.
176. With the aforesaid observations and directions, both the
intra-court appeals stand disposed of.
177. Pending Interlocutory Application, if any, stands
disposed of.
I Agree (Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Alankar/
A.F.R
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