Orissa High Court

Makar Ketan Sahoo vs State Of Orissa And Ors on 25 August, 2022

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                        W.P.(C) No.8447 of 2022

         Makar Ketan Sahoo                        ....           Petitioner
                                                 Mr. Pitambar Panda, Adv
                                     -versus-
         State of Orissa and Ors.                 ....      Opposite Parties
                                                  Mr. D. R. Mohapatra, SC
                                                       (for S & ME Deptt)

                   CORAM:
                   DR. JUSTICE S.K. PANIGRAHI
Order                                ORDER
No.                                 25.08.2022

  I.      Facts

of the Case:

1. The petitioner, in this Writ Petition, has challenged the

actions of O.P. No.2/the Director of Elementary

Education, Odisha Bhubaneswar for not considering the

regularization of the deployment of petitioner under

"health disability" ground as well the point No. 3.II(vii)

and (ix) of the Notification No.22167/SME dated

04.10.2018 issued by the Department of School and Mass

Education.

2. The petitioner is serving as a Junior Teacher in

Elementary Section of S.M. Alli Government Nodal High

School, Nayapalli, Bhubaneswar under Block Education

Officer, Bhubaneswar in the district of Khurda on

deployment basis. Initially, the petitioner was posted in

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Government Upper Primary School, Lathipada under

BEO, Banapur in the district of Khurda vide letter

No.612 dated 09.01.2015 and joined on 15.01.2015. The

petitioner was first deployed to work at Ghangapatana

U.G.U.P. School as per order of DEO, Khurda vide order

No. 6570 dated 12.06.2015 and Office order No. 1666

dated 17.06.2015 of BEO, Bhubaneswar. Accordingly

petitioner joined in the new school on 19.06.2015.

Thereafter, on instruction of the DEO, Khurda, the BEO,

Bhubaneswar vide order No.5254 dated 04.11.2019

deployed the petitioner in S.M.Alli Government High

School, Nayapalli (Elementary Section) since the

petitioner was having B.Sc., B.Ed qualification,

considering as need based one for the interest of both the

secondary and elementary section of the school.

3. The petitioner was regularized in Ghangapatana UGUP

School vide letter No. 3153 dated 07.04.2017 based on the

letter No.1604/SSE dated 24.03.2017. Later, the BEO,

Bhubaneswar passed an order and kept the earlier order

dated 07.04.2017 in abeyance and referred the same to

the next DLTC for approval.

4. The petitioner faced a road accident on 28.10.2018 and

sustained severe injury in right leg, right ribs, high lower

lungs and right color bone and undergone surgery fixing

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a steel rod in right leg resulting the petitioner as

locomotors disability of sixty percent. Thereafter the

petitioner after 5 months resumed his duty on

production of medical certificates wherein the Doctor

advised not to move long distance. Based on the advice

of the doctor, the petitioner submitted a representation to

the Collector-Cum- District Magistrate, Khurda to

transfer him from Kujimahala UGUP School to

Utkalamani Nodal UP School, Nuasahi, Nayapalli where

the petitioner was residing.

5. During the tenure of the petitioner he was once again

deployed to another School, namely Ghangapatana

UGUP School as well as Mundasahi Project Primary

School on temporary basis and thereafter on request

again the BEO, Bhubaneswar deployed in S.M.Alli Govt.

Nodal High School, (Elementary Section) vide order No.

5254 dated 04.11.2019.

6. The Director of Elementary Education vide letter

No.13156 dated 11.08.2021 issued a circular to all DEOs

and BEOs of the state to regularize need based

deployment of teachers through online mode as per

provision No.3 II (vii) and (ix) of Notification No.

22167/SME dated 04.10.2018. Accordingly, the petitioner

submitted an application to the DEO-Cum-DPC, Khurda

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sharing copies to the BEO, Bhubaneswar and BEO,

Banapur for regularization of deployment on 16.08.2021.

However, the case of the petitioner was not considered

by the DLTC, Khurda. Hence, he is constrained to

approach this Court by way of the present Writ petition.

II. Submissions advanced by the petitioner:

7. As per Para-3 II of the Notification dated. 04.10.2018, the

strength of teachers has been fixed based on the

enrolment of students in Primary and Upper Primary

Schools. It is stated therein that 5 teachers are required in

Primary section of S.M. Alli High School, Nayapalli since

the students' strength is 168 from Class 1 to 5. In fact, the

Head Master + 3 Graduate Teachers are required since

the student strength from class 6 to 8 is 134 in the School.

In total one HM and 8 No's of teachers are required in

the present school of the petitioner and at present 8 No's

of B-1791 teachers are serving in the school out of which

petitioner is 12598 one of them, who is now under

deployment. The DLTC, Khurda instead of considering

the case of petitioner for regularization posted two more

teachers in the school vide order No.15677 dated

10.12.2021 as in serial 205 and 206.

8. The petitioner filed an appeal before the

Appellate Authority i.e. Director of Elementary

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Education, Odisha Bhubaneswar against the inaction of

DLTC, Khurda as per provision under Para-5 of the

Notification dated 04.10.2018. The DLTC violated the

principles as envisaged in above stated Notificationas

well as circular dated 11.08.2021, while considering in

case of many similar proposals for regularization of

deployed teachers, which amounts to sheer

discrimination.

9. The Appellate Authority without giving

due consideration to the letter dated 11.08.2021, issued

earlier from Directorate, disposed of the appeal petition

and passed impugned order dated 16.03.2022 rejecting

the Appeal of the petitioner being devoid of merit. The

rejection on the ground of that petitioner is not a regular

teacher is erroneous since the Notification vide Para-1,

categorically suggests that the applicability wherein it is

mentioned that "These guideline shall be applicable to

teachers and headmasters of elementary cadre, Asst.

Teachers (ex-Cadre) Contractual Teachers and Gana

Sikhyakas working in Government Elementary Schools

in the state". Therefore the decision in impugned order is

arbitrary and not in consonance with law.

10. The petitioner is entitled to regularization of deployment

since many similar cases have been considered by the

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opposite parties with blatant disregard to case of the

present petitioner.

III. Submissions by the Department of School and Mass

Education:

11. The petitioner was initially engaged as Sikshya Sahayak

vide Engagement Order No. 612/SSE dated 09.01.2015 in

Lathipada Project Upper Primary School under Banpur

Block. While working as such basing upon the grievance

of the petitioner, the District Education Officer, Khurda

vide office order No.6570 dated 12.06.2015 allowed to

work in any of the school of Bhubaneswar Block and

accordingly the Block Education Officer, Bhubaneswar

vide office order No.1666 dated 17.06.2015 allowed the

petitioner to work in Ghangapatana Up-graded Upper

Primary School on temporary basis. During his tenure to

work on temporary basis under the Block Education

Officer, Bhubaneswar he worked in different schools and

now working on temporary basis in S.M Alli

Government High School, Nayapalli under Block

Education Officer, Bhubaneswar as Junior Teacher.

12. The Director, Elementary Education, Odisha, vide Letter

No. 13156 dated 11.08.2022/Annexure 4 of the writ

petition, issued instruction to all District Education

Officers and Block Education Officers for extension of

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date line for transfer on administrative ground (Intra

District) and regularization of need based deployment/

deputations keeping in view the Notification No.

22167/SME dated 04.10.2018.

13. All Elementary Headmasters and Teachers belong to the

district cadre and hence they cannot be transferred to

another district. The Department of School and Mass

Education, Odisha, considering several representations

received regularly from different level and types of

teachers working in elementary schools for inter-district

transfer on various grounds, vide Notification

No.22167/SME dated 04.10.2018 formulated certain

guidelines for Inter-District and Intra-District transfer of

teachers of Elementary Cadre. In the said principle at

Point No.3 it is described as follows:

"3. Intra-District Transfer; I. Personal & Administrative (other than rationalisation) Tranfers.

a) Grounds of Transfer &Teachers Transferrable under different grounds. The teachers of different category may be transferred within the district on the grounds mentioned against each.

xxxxxxxx

b) Principles.

i) Transfers shall be mainly on two grounds such as Administrative

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requirement and personal representation. Personal representation shall be on health grounds or other personal grounds. Administrative Transfer shall include transfer on rationalisation.

Similarly transfer on personal ground shall include mutual transfers.

ii) Junior Teacher Contractual, Junior Teacher and GanaSikhyak shall not normally be considered for transfer except on mutual ground and on ground of suffering from Terminal Diseases.xxxxxx

iii) xxxxx

iv) xxxxx

v) While considering the transfer proposal, priority will be given to representations received from teachers suffering from terminal diseases and the same will also be considered only after clarification by the State Medical Board situated at Cuttack, Berhampur and Sambalpur.

vi) Transfer on personal representation shall not be normally considered if the regular teacher has not completed 6 years of service in a school except for administrative, mutual and terminal illness cases.

vii) xxx

viii) xxx

ix) xxx

x) xxxx

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II. Transfer on Rationalisation

a) Principles

ix) Regular teachers who are working in New Project Primary Schools/ New Project Upper Primary Schools under deployment basis may be allowed to continue, otherwise the practice of deployment shall be stopped.

Xxxx."

In view of the above, the petitioner's case deserves to

have been considered but not considered hence he is

constrained to approach to this Court.

14. Pursuant to the Notification dated 04.10.2018, the

petitioner applied for regularization of deployment. As

per the guidelines for Inter-district transfer and mutual

transfer/ Intra-District transfer/ Rationalisation of

Headmasters/ Asst. Teachers/ Asst. Teachers (Ex-cadre)

Jr. Teachers/ Junior Teachers (Contractual) and Gana

Sikhyaks of Government Elementary Schools in the State

vide Notification No.22167/S&ME dated 04.10.2018 at

para-3 (b) (ii) prescribes that Junior Teacher Contractual,

Junior Teacher and Gana Sikhyak shall not normally be

considered. Thereby, the case of the petitioner insofar as

intra-district transfer is concerned cannot be considered

as per the transfer policy of Government dated

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04.10.2018, for which his case cannot come to zone of

consideration by the transfer Committee constituted

thereon. In the instant case the petitioner is in the status

of Junior Teacher applied for his transfer/ regularization

of deployment, for which his application for transfer/

regularization of need based deployment of teachers

could not be taken into consideration by the District

Level Transfer Committee as per Para-3 (b) (ii) of the

guideline under

15. Being aggrieved by the decision of the District Level

Transfer Committee the petitioner filed an appeal on

20.12.2021 before the Director, Elementary Education,

Odisha, Bhubaneswar which is the Appellate Authority.

The Director, Elementary Education, Odisha upon

considering the appeal of the petitioner and report of the

District Education Officer and Block Education Officer,

Banpur and Bhubaneswar and after hearing all the

parties, disposes the appeal vide office order No. 4011

dated 16.03.2022 rejecting the claim of the petitioner with

the following findings:

"i) The petitioner is working in different schools under BMC area from 17.06.2015 till date, except 29.10.2018 to 31.03.2019 from Banapur Block, which is Educationally Backward Block in

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comparison to BMC area of Bhubaneswar Block and which is more than 6(six) years. Pursuant to Point no-3 II (a) (ix) of the Notification No. 22167/SME dated 04.10.2018 the practice of deployment shall be stopped. The appellant has already availed the deployment period beyond the limit of Three years and which is against the provisions laid down in Government in School and Mass Education Department Letter No. 12268/SME dated 06.07.2017.

ii) The petitioner is not a regular teacher and his prayer for regularization of deployment as Junior Teacher in S.M. Alli High School is against theprevailing rules for which it is rejected being devoid of merit.

iii) The District Education Officer, Khordha is requested to cancel the deployment order of the petitioner to S.M. Alli High School immediately in the interest of pupil, public education of Banapur Block."

16. Further, the Letter No.12268/SME dated 06.07.2017

prescribes the limitation of deployment period of

Elementary teachers transferred on deployment basis. In

the said letter the School and Mass Education

Department decided to limit the period of deployment in

the case of the teachers of Elementary cadre for three

years or up to such period as desired by Government, so

that the deployed teacher may not continue for eternity

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at the place where he/ she has been posted on

deployment and in the process the Government in

School and Mass Education Department directed the

Opp. Party No.2 for taking immediate steps to back the

deployed teachers to their original place of posting from

where they have been transferred on deployment

previously.

17. In fact, taking into account the grievance of the

petitioner, he was allowed to work under Block

Education Officer, Bhubaneswar temporarily, which he

cannot claim as his right for regularization of the same,

permanently. It is pertinent to mention here that in

obedience to the interim order dated 13.04.2022 passed in

I.A. No. 4408 of 2022 by this Hon'ble Court, the petitioner

is continuing in S.M. Alli High School under Block

Education Officer, Bhubaneswar.

18. In catena of decisions, the Hon'ble Apex Court has held

that there is no indefeasible right of an employee to

remain at one place. The employee needs to be prepared

to face the administrative exigencies. He further

mentions that the Fundamental Rule-11 speaks that the

whole time of a Government servant is at the disposal of

the Government which pays him and he may be

employed in any manner required by proper authority.

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19. The guidelines for Inter-district transfer and mutual

transfer/ Intra-District transfer/ Rationalisation of

Headmasters/ Asst. Teachers/ Asst. Teachers (Ex cadre)/

Jr. Teachers/ Junior Teachers (Contractual) and Gana

Sikhyaks of Government Elementary Schools in the State

vide Notification No. 22167/S&ME dated 04.10.2018 is a

policy decision of the Government and the School and

Mass Education Department upon careful consideration

felt it just and proper to formulate a certain norms and

guidelines for the purpose of consideration of transfer of

teachers for smooth administration and for all betterment

of the teachers at large. Keeping in mind the policy

decision of the Government vide Notification No.

22167/S&ME dated 04.10.2018, No. 13156 dated

11.08.2021 of the Director, Elementary Education, Odisha

and 12268/SME dated 06.07.2017, the Director,

Elementary Education, Odisha, vide office order No.

4011 dated 16.03.2022 considered the grievance of the

petitioner.

20. In the instant case the petitioner has miserably failed to

establish that the policy decision suffers from any

illegalities or arbitrariness in order to affect him and he

felt prejudiced.

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V. Court's Reasoning and Analysis:

21. The claim of the petitioner about his transfer/

regularization of deployment proposal does not convince

this Court in the light of the consistent view of this Court

that transfer is an exigencies of service. If a person joins a

Government job he is liable to be transferred on

administrative grounds since Government is the

employer. On perusal of the office order No.4011 dated

16.03.2022 issued by the Director, Elementary Education,

Odisha is a well-reasoned order and does not warrant

any kind of interference by this Court.

22. There is no indefeasible right of an employee to remain

at one place and he cannot be transferred. The employee

needs to be prepared to face the administrative order of

transfer which is the prerogative of the department.

Even Fundamental Rule-11 prescribes that the whole

time of a Government servant is at the disposal of the

Government which pays him and he may be employed

in any manner required by proper authority.

23. The realm of policy making while determining the

conditions of service of its employees is entrusted to the

State and the Court shall not venture into this area unless

there is gross violation of statutes governing the field.

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The Supreme Court has reiterated time and again that an

employee has no fundamental right or a vested right to

claim a transfer or posting of his/her choice. But in case

the employee is physically challenged the principle of

reasonable accommodation for the disabled members of

society is an obligation of the employer which flows

from the special statutes and this obligation has been

elaborated upon in several decisions by the Apex Court

including Vikash Kumar v. Union Public Service

Commission and Others1, Avni Prakash v. National Testing

Agency and Others2 and Ravinder Kumar Dhariwal and

Another v. Union of India and Others3. In Vikash

Kumar(supra), the Apex Court has elaborately discussed

about the need of accommodation of the disabled person

and observes that:

"63. In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered.

Accommodation implies a positive obligation to create conditions conducive to the growth and

(2021) 5 SCC 370

2021 SCC OnLine SC 1112

2021 SCC Online SC 1293

// 16 //

fulfilment of the disabled in every aspect of their existence -- whether as students, members of the workplace, participants in governance or, on a personal plane, in realising the fulfilling privacies of family life. The accommodation which the law mandates is "reasonable" because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence."

Hence the formulation of policy by the opposite parties

must take into account the aspects of disability of the

employees. The State while formulating a policy for its

own employees has to give due consideration to the

importance of protecting family life as an element of the

dignity of the person. How a particular policy should be

modulated to take into account the necessities of

maintaining family life may be left at the threshold to be

determined by the State as has been rightly echoed in SK

Nausad Rahaman & Ors vs. Union of India &Ors4.

24. In a recent judgment of the Apex Court in Lt. Col.

Nitisha and Others v. Union of India5, the Court