Orissa High Court
Chhabibala Senapati vs State Of Odisha And Others on 7 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.35909 of 2021
Chhabibala Senapati .... Petitioner
Mr. L. Mohanty, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. B. Mohanty,
Standing Counsel S & ME.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 07.01.2022
01. 1. This matter is taken up through Hybrid Arrangement (Video
Conferencing/Physical Mode).
2. Heard Mr. L. Mohanty, learned counsel for the Petitioner and
Mr. B. Mohanty, learned Standing Counsel appearing for the School
and Mass Education Department.
3. The present writ petition has been filed by the Petitioner
seeking for a direction to the Opposite Parties to grant retrospective
promotion to the Petitioner to Jr. SES Cadre with notional benefit as
directed by this Court in similar matters.
4. The recruitment to the post of teachers in the Government
High School was regulated by the State Government under the Orissa
Subordinate Education Service (General Branch) Rules, 1972. As per
Sub-rule 3 of 1972 Recruitment Rules, all Subordinate offices under
the control of Director shall form one unit. In the said Rules, there
consists three Cadres (i) Lower Subordinate Education Service
(LSES), (ii) Junior Subordinate Education Service (Jr. SES) and (iii)
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Sr. SES.
5. As per Rule 10-A of Orissa Subordinate Education Service
Rules, 1972, LSES teachers on completion three years of service with
B.Ed qualification are eligible for promotion to Jr. SES cadre. As per
Rule 10(B)(ii) of the said Rule the selection committee shall meet
once a year ordinarily during the 1st week of April and prepare list of
persons eligible for appointment by way of selection under Rule 10-
A of said rule.
6. Two teachers, namely, R.K. Panda and another approached
learned OAT, Cuttack in O.A. No.1673(C) of 1993 with a prayer to
grant promotion to Jr. SES Cadre against the year wise vacancy of
1984 as they were appointed in LSES cadre in the year 1981. During
pendency of the case, they were promoted to Jr. SES Cadre in the
year 1994. The matter was heard by learned OAT, Cuttack and
ultimately learned Tribunal relied upon decision of Binod Kumar
Singhal vrs. Union of India : reported in 1994(2) SLR 695 and
decided that departmental promotion committee is required under the
instruction to meet every year for selecting persons for promotion on
regular basis. Vacancy occurring during the relevant year cannot be
clubbed together and zone of consideration cannot be enlarged.
Ultimately, learned Tribunal directed to grant retrospective
promotion to the Petitioner against the year wise vacancy, 1984 by
convening special D.P.C. in their order dated 28.11.2007.
7. The Association of All Odisha Government School Teachers
submitted a representation to Opposite Party No.1 dated 25.09.2010
to consider the cases of similarly placed persons for retrospective
promotion to Jr. SES cadre against the year wise vacancy. On receipt
of the representation the Opposite Party No.1 vide Letter dated
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06.10.2010 directed the Opposite Party No.2 to consider the
grievance of the teachers of Old Government High School who were
eligible for promotion to Jr. SES cadre on completion of threes of
services.
8. The Opposite Party No.2 vide Letter dated 03.01.2011
intimated the Opposite Party No.1 that due to non-functioning of the
State Selection Board as well as non-holding of DPC in every year,
the deserving teachers of Government High School were not granted
promotion, even though they are eligible for promotion to Jr. SES
cadre for promotion on completion of three years of service in LSES
cadre.
9. It is further pleaded that one Nabin Kumar Khamari similarly
placed teacher had approached O.A. Tribunal in O.A. No.1804 of
1998 for grant of retrospective promotion against the year wise
vacancy of the year 1986, as he was appointed in the year 1983, was
promoted to Jr. SES Cadre in the year 1998.
It is submitted that the said Nabin Kumar Khamari was
promoted to Jr. SES cadre in the year 1998. O.A. Tribunal vide order
dated 07.09.2011 allowed the case with a direction to the Opposite
Parties to grant retrospective promotion to said Nabin Kumar
Khamari to Jr. SES cadre against the year wise vacancy 1986 with
notional benefits.
10. Pursuant to order of O.A. Tribunal as well as order passed by
the Opposite Party No.2 Director Secondary Education, Odisha,
Bhubaneswar vide letter dated 26.02.2013 retrospective promotion
was given to said Nabin Kumar Khamari from 10.08.1986. He was
allowed to draw arrear salary from 13.08.1997 i.e. from the date of
his joining in Jr. SES cadre.
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11. After verification of records the Opposite Party No.2 prepared
a list of 1138 similar placed old Government School teachers and
submitted a report to Opposite Party No.1 vide letter dated
07.02.2014 with a recommendation to grant retrospective promotion
against the year wise vacancies as has been granted in favour of
Nabin Kumar Khamari and Rabinarayan Panda as per orders of O.A.
Tribunal passed in O.A. No.1804 of 1998 and O.A. No.1673(C) of
1993. In the said recommendation, it has been clearly mentioned as
follows:-
"It is a fact that the LSES teachers in old
Government Schools were deprived of getting
promotion to Jr. SES cadre due to non-holding of
DPC every year, though they have requisite
qualification i.e. continue service for a period of
three years in LSES cadre having B.Ed
qualification."
12. Law is well settled that once a decision is rendered by any
court of law and it is implemented by the authorities, such benefits
are to be extended to similarly placed persons. The Hon'ble Apex
Court of India in between K. Shephard and others vrs. Union of
India : reported in AIR 1988 S.C. 686 have decided that once a
decision is taken by court of law and it is implemented by the
authorities the said benefit is to be extended to similarly placed
employees, even though they have not approached the court of law.
Similar view was taken by the Hon'ble Supreme Court of India
in the matter of Maharaj Bhatta and another vrs. State of J.K. and
others : reported in (2008) 9 SCC- 24. Their lordship decided that
once a decision is taken by a court of law and State authorities have
implemented the order the said benefit should have been extended to
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all similarly placed persons.
13. In a recent decision Hon'ble Supreme Court of India in the
matter of State of U.P. vrs. Arvind Kumar Srivastav : reported in
(2015) 1 SCC 347 that if a judgment has been delivered "in Rem
with intention to give benefits to all similarly placed persons, the
same benefit is to be given to all similarly placed persons, whether
they approached the court or not. With such a pronouncement, a legal
obligation is cast upon the authorities to extend the benefits accruing
under any order/judgment to all similarly situated persons.
14. The Opposite Party No.2 vide order dated 29.09.2021 granted
retrospective promotion to the petitioner in O.A. No.3885(C) of
2012, namely, Pratush Kumar Das by antedating his order of
promotion to Jr. SES cadre w.e.f. 26.02.1988 (after completion of
three regular service in LSES cadre with notional benefits.)
It is claimed by the learned counsel for the Petitioner that the
Petitioner being similar placed to the applicant in O.A. No.3885(C)
of 2012 and batch, is entitled for retrospective promotion to Jr. SES
cadre w.e.f. 24.06.1997 (on completion of three years of service in
LSES Cadre) with notional benefits. However, till date the said
benefits has not been extended to him.
15. It is submitted that similar benefit has also been given by the
Government vide order issued by the Government of Odisha School
and Mass Education Department Letter No.25057 dated 23rd
December, 2021. It is further submitted by learned counsel for the
Petitioner that the Petitioner has submitted a representation to the
Secretary, School and Mass Education Department, Odisha and seeks
for a direction to the Opposite Party No.1 to consider such
representation.
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16. Learned counsel appearing for the School and Mass Education
Department submits that he has no objection, if a direction is given to
the Opposite Party No.1 to consider the representation of the
Petitioner in the light of the analysis made hereinabove.
17. Having heard learned counsel for both the sides and after
perusal of the records, this Court disposes of the writ petition with a
direction to the Opposite Party No.1 to consider the representation of
the Petitioner dated 19.8.2021 stated to be pending before the
Opposite Party No.1 within a period of twelve weeks from the date of
production of certified copy of this order. It is needless to mention
here that the Opposite Party No.1 shall consider the case of the
Petitioner taking into consideration all the materials placed before
him as well as the judgment of the Hon'ble Supreme Court (supra)
and further keeping in view that the similar benefit has also been
given to the similarly situated persons. The representation shall be
disposed of by a speaking and a reasoned order and the decision
thereon shall be communicated to the Petitioner within a period of
ten days from the date of decision.
18. With the aforesaid observation and direction, the writ petition
is disposed of.
19. Urgent certified copy of this order be granted on proper
application.
Jagabandhu ( A.K. Mohapatra)
Judge
