YOGENDRA THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application, the petitioner has challenged a gradation list of the teachers in upper division of the Subordinate Education Service (Annexure 8) attached to the letter dated 26 -2 -1975 addressed to the Deputy Director of Education (Annexure 7) and the basis on which the list has been prepared, as mentioned in Annexure 6. The main claim of the petitioner is that the respondent No. 5 to 343, who formed a separate group, cannot be reckoned senior to the petitioner and the other teachers of another group to which the petitioner belongs. The case was earlier heard fey my learned Brother P.S. Sahay, J., who referred it to a Division Bench as some important questions of law arise in the case.

(2.) The case made out in the writ application is that the petitioner is a member of the Bihar Subordinate Education Service (Upper Division) in teaching branch and was entitled to be considered for promotion to the post of Principal of the Government High Schools. An ad hoc Scheme described by the petitioner as Higher Secondary Scheme was introduced by way of experiment by the Government order dated the 9th June, 1958 (Annexure -2) under which a number of existing Government schools were converted into Multi Purpose Higher Secondary Schools and the teaching was extended to other subjects besides the existing subjects of study. For this purpose a large number of additional posts were created in the upper division. These posts should have been filled up in accordance with law by promotion from the rank of the lower division teachers but the State Government deviating from the rule made direct recruitment on a large scale. The new appointees, although appointed to the Bihar Subordinate Education Service, Upper Division (Teaching Branch) thus formed a separate cadre of Higher Secondary teachers. Separate gradation lists were prepared for the general cadre of the Subordinate Education Service to which the petitioner belongs and for this new cadre. The experiment under the Scheme proved a failure and in 1971 the State Government withdrew the Scheme by a resolution dated 29 -4 -1971 (Annexure -4). A decision, however, was taken to absorb the teachers appointed under the new Secheme and, accordingly, a decision was taken to merge the new cadre in the Subordinate Education Service (Upper Division). Since several anomalies as arose as a result of this decision, the matter was examined and the Government formulated certain principles as mentioned in Annexure 6 dated 20 -2 -1975 and following their decision the letter (Annexure 7) with the gradation list (Annexure 8) was circulated As a result of Annexures 6, 7 and 8, 348 respondents have come to the petitioner's cadre as senior to the original members of the cadre blocking their prospects of promotion. The original members of the cadre raised a protest, but the State Government, without giving any importance to it, is proceeding on the basis of the impugned annexures and a number of posts of Principals in Bihar Education Service, Class II are going to be filled up on their basis. This will seriously prejudice the teachers of the original Subordinate Education Service (Upper Division) The petitioner in these circumstances filed the present writ application in 1975. He has also prayed for issuing a writ of mandamus directing the authorities not to give effect to the impugned gradation list and to consider the case of the petitioner for promotion to the Bihar Education Service, Class II, in accordance with law. As the number of the respondents in the case is very large, the service of notice of this case took considerable time and the case could not be disposed of expeditiously.

(3.) It has been contended on behalf of the petitioner that the additional posts were not created by Annexure 2 in the existing Subordinate Education Service (Upper Division Cadre) and the respondents were absorbed in the cadre for the first time in 1975 and they, therefore, must rank junior to the teachers already in the cadre on that date. In any event, the respondents cannot be treated to be senior to the teachers who were already in the cadre in 1971 when a decision was taken to absorb the respondents in the Subordinate Education Service (Upper Division). The gradation list (Annexure 8) in which the respondents have been shown as senior is, therefore, illegal and fit to be quashed.