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Patna High Court - Orders
Kaushal Kishore Dwivedi vs The State Of Bihar & Ors on 20 April, 2012
                              IN THE HIGH COURT OF JUDICATURE AT PATNA
                                Civil Writ Jurisdiction Case No. 15688 of 2011
                    Kaushal Kishore Dwivedi Son Of Pandit Jaleshwar Nath Dwivedi Resident
                    Of Barhai Tola , P.S.- Jamo Bazar, District- Siwan Presently Assistant
                    Teacher, Shri Shankar High School, Takiya Sasaram, District- Rohtas

                                                                        .... ....   Petitioner/s
                    1. The State Of Bihar
                    2. Director, Secondary Education, Government Of Bihar, Patna
                    3. Regional Deputy Direction, Secondary Education, Government Of Bihar,
                    4. District Education Officer, Rohtas

                                                                  .... .... Respondent/s
                    Appearance :
                    For the Petitioner/s :   Mr. Ranjan Kumar Dubey
                    For the Respondent/s   : Mr. Subhash Pd. Singh Ga7
                    ORAL ORDER


04. 20./04/2012 There are primarily two reliefs, which have been prayed for in the present Writ Application: one was to direct the respondents to amend the seniority list in accordance with the seniority, by virtue of his date of appointment on the date of admissibility of senior selection grade to him and (ii) secondly that he be granted increments as well as promotion for the period the petitioner was on extraordinary leave, which was granted by the respondents. The so called leave was availed by the petitioner for pursuing his higher studies, which is permissible under the Bihar Service Code and refusal by the respondents to accord sanction for the grant of increments for the period of extraordinary leave is an arbitrary decision devoid of the sanction of law or rule in this regard.

When the matter was taken up and heard, the first Patna High Court CWJC No.15688 of 2011 (4) dt.20-04-2012 2/7 issue has not been really pressed on behalf of the petitioner. The thrust of the argument is more confined to the question of grant of increment for the period the petitioner was on extraordinary leave.

Short facts are that the petitioner was appointed as an Assistant Teacher on 25.03.1983. His first posting was at High School Bero in the district of Ranchi. He worked in this capacity as an Assistant Teacher till 1986, when vide letter dated 17.12.1986, he was transferred to High School, Koilwar in the district of Bhojpur. He joined High School at Koilwar on 08.04.1987.

On completion of 12 years of continuous service, the Regional Deputy Director, Secondary Education, Government of Bihar, Patna granted selection grade to the petitioner w.e.f. 22.04.1995. The notification dated 31.07.1997 has been annexed as Annexure- 2. In the year 1996, petitioner was transferred from Koilwar to Shri Shankar High School, Takiya at Sasaram, where he joined on 22.08.1996. He is working in that School ever since.

While the petitioner was still posted at Bero High School at Ranchi, he wanted to improve his professional qualification for career advancement by deciding to do his doctorate. There is a provision for grant of extraordinary leave for acquiring higher qualification under Rule 85 of the Bihar Service Code. It is his case that he made an application for grant of three years of extraordinary leave sometime in the year 1984 and it was also recommended and forwarded. In anticipation of the grant of the leave, petitioner proceeded for higher education on Patna High Court CWJC No.15688 of 2011 (4) dt.20-04-2012 3/7 21.07.1984 and he enrolled for Ph.D. in Banaras Hindu University. On completion of his research and presentation of his thesis, he was granted a certificate, conferring the degree on 08.12.1988. Since the petitioner in the meantime had been transferred to Koilwar, he rejoined his service at Koilwar on return.

The averment in the Writ Application is that after his return, he kept sending reminders for grant of his leave which remained pending for a long time. It was only much later that the authorities finally decided to issue a notification, contained in Annexure - 6, dated 23rd of December, 1994. The notification reads that "the petitioner a former Assistant Teacher, posted at High School Bero in Ranchi and is now posted at Koilwar, is granted study leave between 21.07.1984 to 12.03.1987, which shall be treated as extraordinary leave under Rule 236 of the Bihar Service Code". The notification also states that "for this period of extraordinary leave, petitioner would not be entitled to any financial benefit including grant of annual increment."

This notification of 23rd of December, 1994 (Annexure- 6) has been in existence for the last 18 years. Petitioner has never raised any objection on that notification all along except when he has filed the present Writ Application on 13.09.2011. There is no clear explanation coming, as to why, if the petitioner had any reservation on the riders indicated in the said notification did not question it earlier. A submission is made by the Learned Sr. Counsel, representing the petitioner that if there is a provision for grant of study leave for higher studies, Patna High Court CWJC No.15688 of 2011 (4) dt.20-04-2012 4/7 then the petitioner ought not to have been denied the same and issuance of Annexure- 6, therefore, is of no legal value, as it is in conflict with Rule 85 of the Bihar Service Code.

The stand of the respondents in their counter affidavit is that the petitioner went for higher studies without authorization or leave of any kind, merely making an application before the so called competent authority, is not adequate as leave has to be granted. It is only on his return and after his much pursuasion and perseverance that the respondents took a lenient view of the matter and to ensure that there would be no serious issue arising from the prolonged unauthorized absence of the petitioner that Annexure- 6 came to be issued. Petitioner accepted that position. The respondents also had no option but to regularize the period of unauthorized absence as extraordinary leave under Rule 236 of the Bihar Service Code and it is not case which come under Rule 85 of Bihar Service Code.

It is also the stand that Rule 85 of the Bihar Service Code states that the increments is payable for all kind of leave, which are allowed other than extraordinary leave. In the case of the present petitioner, Annexure- 6 had been issued by the then Director in consonance with the said provision. The conduct of the petitioner and the circumstances under which a post-facto order for leave had to be issued by the respondents to cover up the absence of the petitioner, which was not authorized or sanctioned in the very first place. It was indiscretion on the part of the petitioner to walk out from his posting and disappear for three Patna High Court CWJC No.15688 of 2011 (4) dt.20-04-2012 5/7 years in the name of acquiring higher degree.

Respondents would not like to rake-up the matter beyond the decision, which was notified in the year 1994 by way of Annexure- 6. Since the petitioner had accepted the decision of the respondents and this order has been in existence for almost 18 years, now he cannot be allowed to shake off its effect, whatever be the legal arguments.

It is also the contention of the counsel, representing the State that the petitioner had obtained transfer from one division to another division, i.e. from Ranchi to Patna, even without getting himself properly relieved from the previous place of posting. It has implications for the petitioner.

As per section 6 of the Bihar Nationalized Secondary School (Service Conditions) Rules, 1983, the cadre of subordinate selection grade teachers is a divisional cadre. As per provision contained in section 12 of the said service rule, transfer of a teaching and non-teaching staff outside from cadre is only made after losing their seniority and since the petitioner who was initially appointed in Ranchi Division got himself transferred to Patna Division he has to lose his seniority in Patna Division and the said seniority will be counted from the date of his joining at Patna Division, which is said to be 03.04.1987. The petitioner cannot claim seniority in the present Division on the basis of his initial appointment in Ranchi.

All these positions are known to the petitioner, but obviously in retrospect since the decision of the respondents now Patna High Court CWJC No.15688 of 2011 (4) dt.20-04-2012 6/7 to accord seniority etc. is hurting him, therefore, the present Writ Application is being filed with all kinds of submission being made.

The Court has gone through the records, the averments and the Annexures, annexed with the Writ Application as well as the counter affidavit. There is clear evidence to show that the petitioner did not obtain leave for higher studies before walking out for doing his Ph.D.. Therefore, petitioner was never granted leave under Rule 85 for pursuing higher studies for betterment of his career prospect. It is much latter that taking a broad view as well as to make sure that there is no break in service and other related problems created due to the unauthorized absence that extraordinary leave under Rule 236 of the Bihar Service Code was accorded to the petitioner and the position was clearly made known in this regard in the notification, issued by the Director, Secondary Education, Government of Bihar, Patna as far back as on 23rd of December, 1994. Since this position has held the field for 18 years now, no amount of legal ingenuity is going to compel this Court to either interfere with Annexure- 6 or give any direction for grant of any benefit, including annual increment to the petitioner, contrary to the notification, contained in Annexure - 6.

The Court is not satisfied with the bonafide and the conduct of the petitioner as well as the submissions made in support of such reliefs. The facts being what they are in fact the present predicament of the petitioners is his own creation and he would not be allowed to draw advantage of his own indiscretion Patna High Court CWJC No.15688 of 2011 (4) dt.20-04-2012 7/7 leading to issuance of Annexure- 6 or refusal of the respondents to grant him increments or to treat the period of unauthorized absence as a grant of study leave.

Writ Application has no merit, it is dismissed.

(Ajay Kumar Tripathi, J.) SKM/-