D. N. Patel, J. - (1.) This Letters Patent Appeal has been preferred by the original petitioner whose writ petition being W.P.(S) No.7275 of 2016 was dismissed by the learned Single Judge by order and judgment dated 09.02.2017, whereby the claim of this appellant (original petitioner) to get himself regularized on the post of Headmaster from the year 1983, has been rejected, hence, the original petitioner has preferred the present Letters Patent Appeal.
(2.) Argument canvassed by the learned counsel for the appellant (original petitioner):- * This appellant (original petitioner) was appointed as an Assistant Teacher in the Project Girls High School, Kathmari, district Singhbhum West on 13th November 1982. Thereafter, this appellant (original petitioner) has obtained B.Ed. Degree in the year 1992 and he was appointed as In-charge Headmaster since long and, therefore, at least from the year this appellant has got B.Ed. Degree, his services ought to have been regularized as Headmaster. This aspect of the matter has not been properly appreciated by the learned Single Judge, hence, the judgment and order dated 09.01.2017, passed in W.P.(S) No.7275 of 2016 deserves to be quashed and set aside. It is further submitted by the counsel for the appellant that the case of this appellant is similar to that of :- (a) Saryu Prasad Roy, who had also filed C.W.J.C No.11805 of 1993, and his services were regularized; (b) Ayesha Kumar, who had also filed W.P.(S) No.547 of 2009, and her services were also regularized as Headmaster; and (c) moreover, the case of this appellant was similar to that of Kamdeo Prasad Shahi, who had also instituted C.W.J.C No.7638 of 1991 and subsequent writ petitions preferred by Kamdeo Prasad Shahi, similar treatment ought to have been given to this appellant (original petitioner). This aspect of the matter has also not been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. * It is further submitted by the counsel for the appellant that in view of the decision rendered by the Hon'ble Supreme Court in the case of A. K. Pradhan Vs. State of Bihar & Ors., 1998 2 PLJR 2 passed in Civil Appeal No.4032 of 1988 dated 07.01.1998, the ratio decidendi reported in this case has also not been properly appreciated by the learned Single, which prescribes that this appellant is entitled to get regularization on the post of Headmaster. * It is further submitted by the learned counsel for the appellant as per Rule 4 of Bihar Nationalized Secondary School (Service Conditions) Rules, 1983 (herein after referred to as the Rules, 1983) enacted under Section 9 of the Bihar Non-Governmental Secondary School (Taken over of Management and Control) Act, 1981 (herein after referred to as the Act, 1981) entitles this appellant to be appointed/ promoted on the post of Headmaster, no sooner did, this appellant is qualified to be appointed as Headmaster. This Rules have been adopted for the Project Schools w.e.f 01.06.1999 and later on, upon bifurcation of the State of Jharkhand, the same have been adopted by the State of Jharkhand. As per this Rule 4, this appellant is entitled to get regularized on the post of Headmaster. This aspect of the matter has also not been properly appreciated by the learned Single Judge, hence, the judgment and order delivered by the learned Single Judge deserves to be set aside. * It is further submitted by the counsel for the appellant that once this appellant has not been regularized on the post of Headmaster, it provides continuous cause of action and hence, the petition preferred by this appellant cannot be said to have been preferred at a belated stage. This aspect of the matter has also not been considered by the learned Single Judge and hence, also the judgment and order delivered by the learned Single Judge in W.P.(S) No.7275 of 2016 dated 09.01.2017 deserves to be quashed and set aside.
(3.) Argument canvassed by the learned counsel for the respondent-State:- * That there is no legitimate right vested in the appellant (original petitioner) to get himself promoted on the post of Headmaster under any law and much less under Rule 4 of the Rules, 1983 enacted under Section 9 of the Act, 1981. * It is further submitted that there is no right to get promotion, but always there may be right to be considered for the promotional post. There is a vast difference between "right to be considered for promotion" and "right to be promoted". The highest right vested in this appellant (original petitioner) is to be considered for the post of Headmaster and nothing beyond that. * That the judgment upon which the counsel for the appellant has relied upon which is reported in 1998 (1) PLJR 2 (SC) confers only the right to be considered for promotion, as a matter of right. The ratio decidendi of the aforesaid decision is that, if any candidate possesses any qualification to be appointed as Headmaster, then his case can be considered. Thus, "right to be considered" and "right to be promoted" are absolutely different in the eye of law. * It is further submitted by the counsel for the respondent - State that this appellant (original petitioner) was given charge of the post of Headmaster. It happens with the Government that promotional posts may not have been filled up for any reason whatsoever. The work of the promotional post ought to be carried by some another teacher, such type of teacher is normally the senior most teacher. Thus, even if this appellant (original petitioner) is given the charge of the post of Headmaster, that does not mean that he must be promoted as Headmaster. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. * It is further submitted by the learned counsel for the respondent - State that the case of this appellant, factually, is different from the facts of the case of (a) Saryu Prasad Roy; (b) Ayesha Kumar, and; (c) Kamdeo Prasad Shahi, mainly for the reason that this appellant was initially appointed as a teacher in the Project Girls High School and merely because he has completed 7 years as teacher and got B.Ed degree and has possessed all the requisite qualifications for the post of Headmaster, that does not mean that he must be promoted as Headmaster. At the highest his case can be considered for the post of Headmaster as he is falling within the zone of consideration. There is no legitimate right "to get promotion", but there is always a legitimate right "to be considered for the promotion". This vital difference has been lost sight of by this appellant and wrongly agitated his claim to be regularized to the post o Headmaster, hence, this Letters Patent Appeal may not be entertained. * Counsel for the respondent - State has also relied upon the decision rendered by the Hon'ble Supreme Court reported in 1998 (1) PLJR 2 (SC). In view of the aforesaid decision, a candidate who is seeking promotion, has only a right to be considered and nothing beyond that.-;