Orissa High Court
Rajendra Singh vs State Of Orissa & Others on 3 March, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.176 of 2013
Rajendra Singh .... Petitioner
None
-versus-
State of Orissa & Others .... Opposite Parties
Mr. D.R. Mohapatra, SC (S&ME)
CORAM:
JUSTICE M.S. RAMAN
ORDER
Order No. 03.03.2022
01. 1. This matter is taken up by virtual/physical mode.
2. The Original Application No.176 (C) of 2013 was filed
before the State Administrative Tribunal, Cuttack Bench, Cuttack.
After its abolition, the same has been transferred to this Court
which is renumbered as WPC (OAC) No.176 of 2013.
3. None appears for the Petitioner at the time of call.
4. Heard Mr. D.R. Mohapatra, learned Standing Counsel
appearing for School & Mass Education.
5. The Petitioner assails the order of reversion dated
23.11.2012 issued by the District Inspector of School, Nilgiri (now
redesignated as BEO) (Annexure-4), whereby the Petitioner was
reverted to the post of Asst. Teacher (level-V) from Headmaster
level-IV.
P.T.O.
// 2 //
6. Mr. Mohapatra, learned Standing Counsel referring to
para-5 of the counter submits that in consultation with Law of
Department, the School & Mass Education Department vide letter
No. 29653-II-SME/CP-35/2000, dtd. 06.11.2000, addressed to the
Director, Elementary Education, Odisha had clarified that, as per
Rule-15 of the Elementary Cadre Rules, 1997, the gradation list is
required to be prepared strictly on the basis of seniority. Therefore,
under Rule15 of the Odisha Elementary Education (Method of
Recruitment and Conditions of Services of Teachers and Officers)
Rules, 1997, the date of declaration or the date of taken over may
not be taken as the guiding factor. It is submitted that it would be
just and proper to take the service seniority or length of service as
criteria of both category of teachers as the basis for determining
seniority and preparing gradation list under the Orissa Elementary
Education (Method of Recruitment and Conditions of Service of
Teachers and Officers) Rules, 1997. Relevant portion of said letter
dated 06.11.2000 enclosed as Annexure-A/3 to the counter affidavit
reads as follows:-
" Sub- principle on preparation of gradation list of
Level-V of Services of Orissa Elementary Education
(Method of Recruitment and conditions of Service of
Teachers and Officers) Rules, 1997.
xx xx xx xx
As per Rule-15 of Elementary Cadre Rules,
1997, the gradation list shall be prepared strictly on the
basis of serniority. Thus under Rule-15 of O.E.E.,
Rules 1997 the date of declaration or the date of taken
over may not be taken as the guiding factor. In all
fitness of things it would be just and proper to take the
service seniority or length of Service as criteria of both
// 3 //
category of Teachers as the basis for determining
seniority ad preparing gradation list under the Orissa
Education (Method of Recruitment and conditions of
Services of Teachers and Officers) rules, 1997. But it is
clarified that the private period of service shall not be
treated as Government service for any other purpose.
This has been concurred in by Law Department
vide their U.O.R No. 1278/L dtd. 21.8.2000."
It is also submitted that the School & Mass Education in
consultation with G.A. Department had issued further clarification
vide letter No. 14523 dtd. 10.09.2009 to fix up inter-se-seniority of
taken over primary schools teachers and UP/ME Schools w.e.f. the
date of taken over as they became Govt. servant i.e. the date of
appointment as Govt. Primary and UP/ME School teachers as
defined in Explanation-1 of Rule 15 of Orissa Elementary
Education (Method of Recruitment and Conditions of Service of
Teachers and Officers) Rules, 1997.
7. Mr. Mohapatra, learned Standing Counsel further relies on
the decision of this Court in "State of Odisha vrs. All Odisha Lower
Secondary Teachers' Association & Others"; WP(C) No. 14979 of
2010 vide judgment dated 23.12.2011.
In para-32 of the said judgment, this Court came to hold as
follows:-
"32. On a thread bare scrutiny of the impugned order
of the learned Tribunal, we are of the opinion that the
learned Tribunal was not justified in reaching the
conclusion that the teacher who were declared as
Government servants on 5.9.1989 cannot be included in
the Elementary Cadre Rules, especially when
Explanantion-1 of Sub-Rule 5 of Rule 15 of the Orissa
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Elementary Education Rules, 1997 unequivocally speaks
that all persons working as regular Assistant Teachers of
Government Primary and Upper Primary Schools are
treated as the members of Level-V of the service from
the date of commencement of the Rules whose seniority
shall be determined with reference to the date of their
appointment as such. Nowhere it has been provided that
the seniority is to be counted with reference to any
particular date. The notification is also silent if the
seniority of the teachers would be counted from the date
when they were stated as Government servant and it is
something unimaginable that the teachers who were
declared as Government servants have to forgo their past
service for all purpose. The Government in their wisdom
being alive to the plight of the teachers took a decision
that seniority of the teachers of the taken over schools
would be decided with reference to their initial date of
respective appointment."
Aggrieved by the said judgment, One Basant Kumar Jena
and another approached the Hon'ble Supreme Court in SLP (Civil)
CC 9054 of 2012. The said SLP has come to be dismissed on
2.7.2012 with the following observation:-
"The petitioners have questioned the correctness of
order dated 23.12.2011 passed by the Division Bench of
the Orissa High Court whereby a batch of writ petitions
filed against the order of the Orissa Administrative
Tribunal were allowed and directions were given to the
State Government to fix the inter se seniority of certain
categories of teachers.
We have heard learned counsel for the petitioners
and perused the record.
In our view, the reasons assigned by the High
Court for quashing the order passed by the Tribunal and
the direction given for fixation of the inter se seniority
of the teachers are legally correct and the impugned
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order does not require interference under Article 136 of
the Constitution.
The special leave petition is accordingly
dismissed"
8. Consequent upon the aforesaid judgment and order, School
& Mass Education in the Govt. of Orissa vide letter No. 28668 / II-
SME/C-34/2012 dated 17.11.2012 under Annexure-E/3 proceeded
to implement the said order. The substance of said letter is extracted
hereunder:-
"xx xx xx xx xx
This has reference to your letter No. 34 dated 16.10.2012
on the subject cited above. The Hon'ble High Court in
WP(C)No. 14979 of 2010 has passed orders that "we
make it clear that if any promotion has been effected in
the meanwhile basing on the seniority list so prepared as
per the later instruction of the Government, the same shall
be treated as nonest."
In order to comply the above orders of Hon'ble
High Court, promotion in respect of Elementary Teachers
shall be carried out with the following principles.
1. The teachers, who have been promoted in
accordance with the later instructions after 6.11.2000 are
to be reverted.
2. Gradation List is to be finalized accordingly.
3. There would be no recovery from the reverted
teachers in respect of pay and allowances in the
Headmasters' Scale of Pay, which they might have been
received."
Consequent upon aforesaid circumstances, office order No.
2423; dtd.23.11.2012 (Anexure-4) appears to have been issued
reverting the Headmasters in Level-IV to Asst. Teachers (Level-V).
// 6 //
Said office order is subject-matter of challenge in the present
petition.
9. In view of the above, by efflux of time, no cause of action
appears to have been survived.
10. Accordingly, the writ petition is dismissed, with liberty to
the Petitioner to revive the petition within a period of ninety days
from today, if cause of action still survives.
Issue urgent certified copy as per rules.
(M.S. Raman)
Judge
Aks
