Patna High Court
Yugeshwar Roy vs The State Of Bihar And Ors on 22 February, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2456 of 2008
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Yugeshwar Roy, son of Late Baldev Roy, r/v Mohamadbigha, P.O.-
Basudeopur, Via- Nagra, P.S.- Kalyanpur, District- Samastipur, at present
working as Joint Secretary, Bihar School Examination Board (Higher
Secondary) Budha Marg, Patna.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Secretary, Human Resource Development Department,
Government of Bihar, Patna.
3. The Joint Secretary, Secondary Education, Government of Bihar,
Patna
4. The Director, Secondary Education, Government of Bihar, Patna.
5. Bihar School Examination Board (Higher Secondary) Budhamarg,
Patna through its Chairman.
6. The Secretary, Bihar School Examination Board (Higher Secondary)
Budhamarg, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sunil Kumar Singh, Advocate
For the Respondent/s : Mr. Satyabir Bharti, Advocate
(BSEB) Mr. Abhishek Anand, Advocate
Ms. Sushmita Sharma, Advocate
For the State : Mr. Faiz Ahmad, AC to GP-14
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
ORAL JUDGMENT
Date : 22-02-2023
Heard learned counsels for the parties.
2. In the instant petition, petitioner has prayed for
following reliefs:-
"That this is an application for
issuance of an appropriate writ/ directions for
quashing the order contained in Memo No.
B.S.E.B. (S.S.)/ 185/ Estab/0808 dated
21.1.2008 passed by Secretary, Bihar School
Examination Board, Patna (herein after
referred to as the Board) whereby and
whereunder petitioner has been demoted from
Patna High Court CWJC No.2456 of 2008 dt.22-02-2023
the post of Joint Secretary to the post of
Deputy Secretary in the Board and he has been
posted as Deputy Secretary till further order.
The petitioner further prays to allow him to
function as Joint Secretary of the Board with
all consequential benefits and also grant any
other reliefs for which petitioner is found
entitled in the facts and circumstances of the
case."
3. Matter relates to promotion and reversion to
the post of Joint Secretary in the then Bihar Intermediate
Education Council under the then Bihar Intermediate Education
Council Act, 1992 (for short 'Act, 1992').
4. The petitioner was in the cadre of Deputy
Secretary in the then Bihar Intermediate Education Council, he
was promoted to the post of Joint Secretary on 07.05.1997 and it
was cancelled on 21.07.1999. He had filed writ petition and it
was allowed while remanding the matter on 29.06.2000. Further
show cause notice was issued on 07.08.2000 as to why
reversion order shall not be ordered. Thereafter on 06.11.2001
reversion order was passed from the post of Joint Secretary to
that of Deputy Secretary. Thereafter, once again he has invoked
remedy before this Court and it was disposed of on 26.04.2007
in the light of the Bihar Intermediate Education Council
(Repeal) Act, 2007 (for short 'Act, 2007'). Under the Act, 2007
three members committee was constituted to decide whether
Patna High Court CWJC No.2456 of 2008 dt.22-02-2023
petitioner could be promoted to the post of Joint Secretary from
the cadre of Deputy Secretary or not? Thereafter on 21.01.2008,
an order was passed by the Secretary, Bihar School Examination
Board that the petitioner is not entitled to hold the post of Joint
Secretary and he was demoted. Hence, the present petition.
5. Learned counsel for the petitioner submitted
that promotion of petitioner to the post of Joint Secretary on
07.05.1997 was in accordance with Section 25 of the Act, 1992.
Petitioner even though is in the cadre of Deputy Secretary in the
then Bihar Intermediate Education Council (Now Bihar School
Examination Board) and he is holding the post of equivalent
rank of Bihar Education Service Class I or Deputy Registrar of
the University. Hence there is no lacuna in promoting him to the
post of Joint Secretary.
6. Learned counsel for respondents resisted the
aforesaid contention and submitted that promotion to the post of
Joint Secretary is not one of the source of recruitment to the
post of Joint Secretary in the then Bihar Intermediate Education
Council and it is only appointment by rank of Bihar Education
Service Class I or Deputy Registrar of the University. He/she
shall be appointed or deputed by the State Government.
Therefore, there is no mode of promotion to the post of Joint
Patna High Court CWJC No.2456 of 2008 dt.22-02-2023
Secretary from the cadre of Deputy Secretary or equivalent
cadre. Hence, there is no infirmity in the impugned order.
7. Heard the learned counsels for the respective
parties.
8. Core issue involved in the present lis is
whether order of promotion to the post of Joint Secretary from
the cadre of Deputy Secretary in the then Bihar Intermediate
Education Council is in order or not? Joint Secretary post is
identified at Section 25 of the Bihar Intermediate Education
Council Act, 1992.
Section 25 of the Act, 1992 reads as under:-
"25. Joint Secretary. - (1)
The Joint Secretary shall be a whole-time
officer. He shall be of the rank of Bihar
Education Services Class I or Deputy
Registrar of the University. He shall be
appointed or deputed by the State
Government. Joint Secretary shall work
under the control of Secretary.
(2) There shall be two posts
of the Joint Secretary in the Council. One
Joint Secretary shall be incharge of the
work relating to establishment and other of
the Administrative work and examination
work."
Reading of the aforementioned Section to fill up
the post of Joint Secretary, there is no method of recruitment to
the post of Joint Secretary through promotion. On the other
Patna High Court CWJC No.2456 of 2008 dt.22-02-2023
hand, what is provided is officer shall be rank of Bihar
Education Services Class I or Deputy Registrar of the
University. He shall be appointed or deputed by the State
Government. Therefore, one has to draw inference that there is
no method of recruitment to the post of Joint Secretary by
means of promotion. Further, post of Deputy Secretary has not
been shown as rank of Bihar Education Services Class I so as to
convert promotion to that of appointment. In the absence of
petitioner pointing out that the post of Deputy Secretary is
equivalent to the rank of Bihar Education Services Class I, he is
not entitled to be appointed to the post of Joint Secretary. His
promotion to the cadre of Joint Secretary is contrary to Section
25 of the Act, 1992. Therefore, there is no error committed by
the authorities while passing order on 21.01.2008. Hence the
present petition stands dismissed.
9. At this stage, learned counsel for the petitioner
submitted that three men committee's report was required to be
approved by the State Government and then only the decision of
the committee is required to be given effect. In this regard, it is
necessary to reproduce Section 3 of Bihar Intermediate
Education Council (Repeal) Act, 2007:-
"3. Adjustment of
employees of the Bihar Intermediate
Patna High Court CWJC No.2456 of 2008 dt.22-02-2023
Education Council. - (1) On and from the
date of repeal of the Bihar Intermediate
Education Council Act, 1992, all employees
of the Council, shall remain, in employment,
as if the Act has not been repealed and they
shall continue to be paid same salary and
allowances as was payable on the date of
repeal of the Act till such time State
Government ha taken such final decision as
is provided hereinafter.
(2) The State Government
shall constitute a Committee of Secretaries
consisting of three Secretaries who shall
prepare a detailed scheme of absorption,
retirement, compulsory retirement or
voluntary retirement, screening appointment
and other service conditions of employees of
the Council. The scheme prepared by the
Committee of Secretaries shall be placed
before the Government within four months
from the date of enforcement of the present
Act:
Provided that it
shall be open to the Government
to modify, amend or suggest
modifications or amendment in the
scheme and the scheme thereafter
shall be made operational in such
form and intent as finally
approved by the Government.
Scheme approved by the
Government shall be considered as
statutory scheme framed under
this Act.
(3) After the scheme
approved by the Government is enforced it
shall be fully implemented in its approved
form and intent within three months from
the date of its enforcement.
(4) The Committee of
Secretaries constituted under sub-section (2)
of Section 3 above shall be competent to
decide utility and deployment of employees
of the Council during transition period and it
Patna High Court CWJC No.2456 of 2008 dt.22-02-2023
shall not be open to any employee to
question decision of Committee of
Secretaries:
Provided that the
State Government shall be
competent to amend, modify, alter
or substitute the scheme so framed
for removal of any difficulty in its
implementation."
Reading of Sub-Section 2 of Section 3, question
of constituting committee read with the source of the report of
the committee and its approval by the State Government, it is in
respect of scheme of absorption, retirement, compulsory
retirement or voluntary retirement, screening appointment and
other service conditions of the employees of the Council. If the
three men committee report was not placed before the State
Government in that event petitioner is at liberty to approach the
State Government.
(P. B. Bajanthri, J)
rakhi/-
AFR/NAFR
CAV DATE N.A.
Uploading Date 25.02.2023
Transmission Date N.A.
