Orissa High Court
Pratima Panda vs State Of Odisha And Others on 10 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.41027 of 2021
Pratima Panda .... Petitioner
Mr. Laxmikanta Mohanty, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. B. Mohanty,
Standing Counsel S. & M.E.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 10.01.2022
01. 1. This matter is taken up through Video Conferencing 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 matter in CONTC (CPC) No.214 of
2017, arising out of O.A. No.3885(c) of 2012.
4. The recruitment to the post of teachers in the Government
High School is being 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 exists three Cadres (i) Lower Subordinate Education Service
(LSES), (ii) Junior Subordinate Education Service (Jr. SES) and (iii)
Senior Subordinate Education Service (Sr.SES).
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5. As per Rule 10-A of Orissa Subordinate Education Service
Rules, 1972, LSES cadre teachers on completion of 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 a list of persons eligible for appointment by way of selection
under Rule 10-A of said rule.
6. Two teachers, namely, Nabin Kumar Khamari & Rabinarayan
Panda approached learned OAT, Cuttack in O.A. No.1673(C) of
1993 and O.A. No.1804 of 1998 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 relying upon a decision of Binod Kumar Singhal vs. Union
of India, reported in 1994(2) SLR 695 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 Petitioners
against the year wise vacancy pertaining to the year 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
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of the representation, the Opposite Party No.1 directed the Opposite
Party No.2 to consider the grievance of the teachers of Old Govt.
High School, who were eligible for promotion to Jr. SES cadre on
completion of three years of services.
8. The Opposite Party No.2 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 the learned 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, he
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. Learned 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 of the
year 1986 with notional benefits.
10. Pursuant to order of the learned 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 similarly 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 the
learned 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. continuous 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 Supreme
Court of India in the matter of 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 Lordships 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
all similarly placed persons.
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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,
irrespective of the fact whether they have approached the court or
not. With the aforesaid pronouncement of law, 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 similarly placed with that of the applicant in O.A.
No.3885(C) of 2012 and a batch of similar cases, is entitled for
retrospective promotion to Jr. SES cadre w.e.f. 17.02.1988 (on
completion of three years of service in LSES Cadre) with notional
benefits. However, till date the said benefits have not been extended
to her.
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
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representation in the light of the position of law analyzed
hereinabove.
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 present writ petition
with a direction to the Opposite Party No.1 to consider the
representation of the Petitioner dated 01.9.2021 stated to be pending
before the Opposite Party No.1 within a period of twelve weeks from
the date of production of a authenticated copy of this order. It is
needless to mention here that the Opposite Party No.1 shall do well
to consider the case of the Petitioner taking into account 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 such decision.
18. With the aforesaid observation and direction, the writ petition
is disposed of.
19. As the restrictions due to resurgence of COVID -19 situation
are continuing, learned counsel for the parties may utilize a print out
of the order available in the High Court's website, at par with
certified copy, subject to attestation by the concerned Advocate, in
the manner prescribed vide Court's Notice No.4587, dated 25th
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March, 2020, modified by Court's Notice No.4798, dated 15th April,
2021, and Court's Office Order circulated vide Memo Nos.514 and
515 dated 7th January, 2022.
( A.K. Mohapatra)
Judge
U.K. Sahoo
