Afr vs State Of Odisha And Others
2022 Latest Caselaw 6482 Ori

                    ORISSA HIGH COURT: CUTTACK


                           W.P.(C) NO. 15345 OF 2022

          In the matter of an application under Articles 226 and
          227 of the Constitution of India.
                                 ---------------

AFR Balabhadra Majhi ..... Petitioner

-Versus-

State of Odisha and others ..... Opp. Parties

For Petitioner : M/s. Umakanta Sahoo and H.K. Dash, Advocates

For Opp. Parties : Mr. S. Jena, Standing Counsel (S&ME)

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing and judgment : 11.11.2022

DR. B.R. SARANGI, J. By means of this writ petition, the

petitioner, who is a retired Gana Sikhyaka from Primary

School w.e.f. 30.04.2022, has sought for direction to

opposite party no.1 for regularization of his service as

Level-V Asst. Primary School Teacher, in accordance with // 2 //

the notification no.14467-XIII-SME-AE-06/2016/SME

dated 25.07.2016 and the notification no.25290-XIIII-

SME-AE-06/2016/S&ME dated 22.12.2016 issued by the

Department of School and Mass Education, Govt. of

Odisha, with effect from the date of his eligibility

notionally, without any discrimination, within a stipulated

time. He has further sought for direction to the opposite

parties to release in his favour the differential arrear

salaries with effect from the date of his regularization,

along with other retiral benefits, within a stipulated time.

2. The factual matrix of the case, in a nutshell, is

that the Scheme of Non-Formal Education was initiated

vide resolution no.33241-XIII/CE-78/89-EYS dated

29.07.1989 of the Education and Youth Services

Department of Odisha. Subsequently, in order to

universalize primary education in the deprived areas in a

time bound and cost effective manner, the Government of

Odisha introduced Education Guarantee Scheme (EGS)

and accordingly EGS schools are opened as a substitute // 3 //

of primary schools. The EGS teachers are designated as

Education Volunteer with a fixed amount of monthly

honorarium and they are engaged by the Zilla Parishads

under Village Education Committees formed for the local

EGS schools in the locality. The petitioner was appointed

in the locality after facing a selection process. The EGS

centres were functioning effectively with effect from the

academic year 1989-90. Since the said centres were

closed due to improper management, as a consequence

thereof, the Department of School and Mass Education,

Govt. of Odisha took steps to regularize the EGS schools

and the appointed teachers. Most of the EGS volunteers

had been disengaged or facing disengagement. Therefore,

Govt. of Odisha took steps to rehabilitate the disengaged

EGS volunteers as Gana Sikhyaka under Sarba Sikhya

Abhijan. Accordingly, vide resolution no.3358/SME dated

16.02.2008, the State Government floated/initiated the

Scheme. Pursuant to the said scheme, the petitioner was

rehabilitated as Gana Sikhyaka in the nearby school and,

as such, the appointment order was issued by the Zilla // 4 //

Parishad with certain terms and conditions.

Consequentially, the petitioner was continuing in the

school. As such, the petitioner is well qualified and has

also got Teachers Education Training for two years from

Board of Secondary Education, Odisha. Thereby, the

petitioner, having satisfied the eligibility criteria, was to be

appointed as a regular teacher in the primary school

before coming into force the Right of Children to free and

Compulsory Education Act, 2009. As the Government did

not appoint any primary school teacher during the period

from 1989 to 2010, the petitioner was deprived of getting

job elsewhere as regular teacher like others.

2.1 The Government of India enforced Teachers

Eligibility Test vide Gazette notification dated 25.08.2010.

Subsequently, in the year 2012, Odisha Teachers

Eligibility Test (OTET) was enforced vide resolution

no.14302 dated 04.06.2012. As the petitioner had

completed his two years training course under the Board

of Secondary Education Odisha successfully and had // 5 //

teaching experience since his appointment as Education

Volunteer in the EGS School, another competitive

examination like OTET may not be required for him, as

the teachers standing on the same footing are continuing

without the eligibility test. Therefore, OTET ought not to

be applicable in the case of the petitioner for his

regularization. The petitioner has also obtained +2 Arts

certificate from the Council of Higher Secondary

Education, Odisha.

2.2 The Govt. of Odisha in ST & SC Department

issued a gazette notification on 17.10.2013 fixing the

guidelines for engagement of Sikhya Sahayak. To provide

free and compulsory education to every child of the age

group of 6 to 14 years, the State Government took steps

for appointment of Sikhya Sahayak, who would be

regularized as teachers. Therefore, Government prescribed

OTET and other eligibility criteria in the appointments of

primary school teachers. But as and when the teachers,

who were serving before 2011 are not facing the OTET test // 6 //

and getting their job satisfaction, whereas the EGS

teachers on the same work burden with the same

teaching experience were compelled to face the OTET

discriminately. As such, there is no difference in the

teaching experience between the regular teacher CT

qualified and Diploma in Elementary Education

Examination by the Board of Secondary Education. But

only difference is that the EGS teachers were getting very

low salary than the regular teachers and most of the EGS

teachers are at the verge of the retirement. Therefore, they

should not have been deprived of regularization of service.

Thus, notifications dated 25.07.2016 and 22.12.2016

were issued by the Department of School and Mass

Education for appointment/regularization of those Gana

Sikhyaka as Level-V Asst. Teachers (ex-cadre) who do not

possess the qualification of passing the OTET. The

petitioner got academic qualification, possessed special

teachers training by the Board of Secondary Education,

Odisha vis-à-vis appointed as a teacher in different EGS

schools before enforcement of OTET in the year 2012.

// 7 //

Further, the State Government clarified that Gana

Sikhyakas, on completion of eight years of regular and

continuous service, would be regularized. As such, in the

notifications, referred to above, it was clarified that the

persons those who do not pass the OTET examination will

not be eligible for further annual increments after

31.03.2019. Thus, the petitioner claimed that he having

satisfied the eligibility criteria is otherwise eligible for

regularization in service in Level-V Asst. Primary School

Teacher. The same having not been done, the petitioner

has approached this Court by filing the present writ

petition.

3. Mr. Umakant Sahoo, learned counsel appearing

for the petitioner vehemently contended that putting

restriction of acquisition of OTET qualification for

regularization of service, so far as Gana Sikhayaka is

concerned, is arbitrary, unreasonable and contrary to the

provisions of law. It is contended that when the petitioner

was appointed as Education Volunteer in the EGS School // 8 //

and on abolition of the EGS he was posted as Gana

Sikhyaka and was having requisite qualification along

with training experience, his service should have been

regularized as Level-V Asst. Primary School Teacher. But

the same was denied, as because he had not acquired the

OTET qualification, which was only introduced in the year

2012. It is further contended that appointment of the

petitioner as Gana Sikhyaka may be considered as

irregular but cannot be construed to be illegal and, as

such, by this process, he should not have been denied the

benefit of regularization of service. It is contended that

though Section-23 of the Right of Children to free and

Compulsory Education Act, 2009 prescribes minimum

qualification for appointment of teachers in the primary

schools, but that ipso facto cannot be a ground to deny

regularization of service of the Gana Sikhyakas, who do

not possess the qualification of passing OTET for

regularization as Asst. Teacher (ex-cadre) in Level-V of the

Government.

// 9 //

3.1 It is further contended that in the notification

dated 22.12.2016 issued by the School and Mass

Education Department modalities have been fixed for

regularization of Sikhaya Sahayaks, which prescribes that

the Gana Sikhyakas who have completed eight years of

regular and continuous engagement and have possessed

educational and training qualification mentioned in Para

(2) of the said notification, will be regularized as Level-V

Asst. Teacher (ex-cadre) equivalent to Level-V teacher of

Elementary cadre. In Para-2(b) of the said notification it

has been prescribed that if the Gana Sikhyaka has not

passed the OTET within 31st March, 2019, then he/she

will not get any further increment after 31st March, 2019.

Thereby, it is contended that acquisition of OTET

qualification is only for availing incremental benefits after

31st March, 2019 and, as such, it has nothing to do in the

matter of regularization. Therefore, the restriction imposed

by the authority for regularization of service in the

primary school is arbitrary, unreasonable, contrary and // 10 //

violative of Articles 14, 19 and 21 of the Constitution of

India.

To substantiate his contention, he has relied

upon the judgment of the apex Court in the case of

Chander Mohan Negi v. State of Himachal Pradesh,

2020 (I) OLR (SC) 865.

4. Mr. S. Jena, learned Standing Counsel for

School and Mass Education Department vehemently

contended that Gana Sikhyakas, who have acquired

higher qualification as non-collegiate candidate by

obtaining permission from competent authority, i.e.,

Collector or District Project Coordinator can only be

considered for regularization and clarification to that effect

been given in the department letter dated 20.09.2017. It is

contended that the SPD, OSEPA issued a circular on

07.04.2010 intimating that the Collector is the competent

authority to issue permission to Gana Sikhyakas for

obtaining higher qualification. From 16.02.2008 to

07.04.2010, there was no instruction issued by the // 11 //

competent authority to issue permission for obtaining

higher qualification. Therefore, it was considered to allow

permission issued by others like C.I. of Schools, D.I. of

Schools, BDOs, S.I. of Schools, BRCCs and HMs during

the period from 16.02.2008 to 07.04.2010 and after

07.04.2010, permission from the competent authority was

only considered. Although case of some of the candidates

was considered for regularization in service, but so far as

the case of the petitioner is concerned, it is contended he

had approached the Collector, Nayagarh by filing Misc.

Case No.1/2018 with a prayer to regularize his service as

Level-V Asst. Teacher (ex-cadre). The Collector, vide order

dated 01.01.2018, passed order in the said Misc. Case

directing the District Education Officer, Nayagarh not to

take any decision on regularization of Gana Sikhyaka

until further orders. But the said Misc. Case was disposed

of by the Collector, vide order dated 20.04.2018, holding

that there was no justification by the District Education

Officer not to include the name of the petitioner to

regularize his service.

// 12 //

4.1 After the order dated 20.04.2018 was passed by

the Collector, this Court, while entertaining a public

interest litigation filed by Odisha Vikash Parishad,

Bhubaneswar bearing W.P.(C) No. 4684 of 2018, passed

interim order directing the authorities not to regularize

any Gana Sikhyaka as Level-V Asst. Teacher, as per

notification dated 22.12.2016, who does not possess OTET

qualification. But, ultimately, the said writ petition was

dismissed, as withdrawn. As a consequence thereof,

taking into consideration the provisions contained in Right

of Children to Free and Compulsory Education Act, 2009

as well as the Odisha Right of Children to Free and

Compulsory Education Rules, 2010, whereby for

appointment of a teacher in elementary cadre minimum

qualification has been prescribed by the academic

authority as passing of Teachers Eligibility Test (TET) is

mandatory and, therefore, acquisition of requisite

qualification having OTET qualification is required for

absorption as regular primary teacher in terms of

government notification dated 22.12.2016 and, as the // 13 //

petitioner had not possessed the OTET qualification till his

date of retirement, his service was not regularized.

Consequentially, he seeks for dismissal of the writ

petition.

To substantiate his contention, Mr. S. Jena,

learned Standing Counsel for School and Mass Education

Department has relied upon the judgment of the apex

Court in the case of State of Uttar Pradesh v. Anand

Kumar Yadav, (2018) 13 SCC 560 and State Bihar v.

Arbind Jee, 2021 SCC OnLine SC 821.

5. This Court heard Mr. Umakant Sahoo, learned

counsel appearing for the petitioner and Mr. S. Jena,

learned Standing Counsel for School and Mass Education

Department by hybrid mode and perused the records.

Pleadings having been exchanged between the parties,

with the consent of learned counsel for the parties this

writ petition is being disposed of finally at the stage of

admission.

// 14 //

6. In the facts and circumstances, as narrated

above, now it is to be considered whether the petitioner,

who was serving as a Gana Sikhyaka having requisite

academic and training qualifications, is entitled to be

regularized in service as Level-V Asst. Teacher under the

Government, even in absence of OTET qualification.

7. There is no dispute that the petitioner was

appointed as an Education Volunteer under the EGS and

after abolition of the said scheme, he was absorbed as a

Gana Sikhyaka and also acquired higher qualification of

+2 Arts from Council of Higher Secondary Education,

Odisha and training qualification from the Board of

Secondary Education, Odisha. For just and proper

adjudication of the case, Section-23 of the Right of

Children to Free and Compulsory Education Act, 2009 is

extracted hereunder:-

"Qualifications for appointment and terms and conditions of service of teachers are clarified as "-(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notification, shall be eligible // 15 //

for appointment as a teacher, (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years. (3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed."

On perusal of the aforementioned provisions, it is made

clear that any person possessing such minimum

qualification, as laid down by the academic authority,

authorized by the Central Government, by notification,

shall be eligible for appointment as a teacher. It is also

provided that where there is no adequate institutions

offering courses or training in teacher education, or

teachers possessing minimum qualification as laid down

under sub-section (1) are not available in sufficient

numbers, the Central Government may relax the // 16 //

minimum qualifications required for appointment as a

teacher for such period not exceeding five years, as may

be specified in the notification.

8. Referring to Section-23, as mentioned above,

National Council for Teacher Education issued a

notification on 23.08.2010 fixing minimum qualification

from Classes-I to V, which is extracted hereunder:-

"1. Minimum Qualifications:

     (i)    Classes I-V
     (a)    Senior Secondary (or its equivalent) with at
            least 50% marks and 2- year Diploma in

Elementary Education (by Whatever name known) OR

Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002

OR

Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.El. Ed.)

OR

Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education) // 17 //

AND

(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose."

9. The aforesaid notification, having been

published on 23.08.2010, has got prospective effect and,

as such, there is no dispute that the petitioner was

appointed as a Education Volunteer under the EGS and

after abolition of the said scheme, he was appointed as

Gana Sikhyaka prior to commencement of the Right of

Children to Free and Compulsory Education Act, 2009,

basing upon which the notification was issued on

23.08.2010, by which time acquisition of OTET

qualification was not made mandatory. But fact remains,

the petitioner had got the minimum qualification for

appointment as a teacher and also acquired training

qualification from the Board of Secondary Education,

Odisha and, thereby, he was otherwise eligible to be

appointed as a teacher in a primary school.

// 18 //

10. It is of relevance to note that by resolution

dated 04.06.2012 in Annexure-6, Government of Odisha

in Department of School and Mass Education, taking into

account the notifications dated 23.08.2010 and

29.07.2011 issued by the National Council of Teacher

Education, being the academic authority, laid down

Class-I to VIII as the minimum qualification for a person

to be eligible for appointment as teacher. As such, the

State Government passed the aforesaid resolution by

introducing OTET qualification for appointment of teacher

and in the said resolution, under Clause-4 eligibility

criteria were fixed for appearing in the OTET examination,

which read as under:-

"Eligibility

(i) Persons having the following minimum qualifications shall be eligible for appearing in OTET.

(a) Category-A Higher Secondary (+2 or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Educations (CT) OR Higher Secondary (+2 or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education) // 19 //

OR Graduation and 2-year Diploma in Elementary Education/2-year Diploma in Special Education.

(b) Category-B Graduation with at least 50% marks and 1-year Bachelor in Education (B.Ed.).

OR Graduation with 50% marks and 1-year B.Ed. (Special Education) OR Higher Secondary (+2 or its equivalent) with at least 50% marks and 4-year B.A. Ed./B.Sc. Ed.

Provided that relaxation of 5% in minimum qualifying marks in +2 or graduation level, as the case may be, shall be allowed to the candidates belonging to SC, ST, OBC / SEBC category.

Provided further that candidates having minimum marks in +2 or graduation level, as the case may be, prescribed at the time of admission in teacher education courses shall also eligible to appear in OTET.

       (ii)      Persons who are pursuing (final year) any
                of     the teacher education courses

(recognized by the NCTE or by the RCI, as the case may be) specified above in both the categories.

(iii) Persons declared eligible by the State Govt. / NCTE/ Govt. of India from time to time."

11. The aforesaid resolution will have to apply

prospectively. The teachers, who were appointed prior to // 20 //

2011, were to be exempted from OTET test. As such, since

the petitioner was continuing in the teaching job before

2011, he ought to have been exempted from OTET test at

par with similarly situated employees, whose services

were regularized as Asst. Teachers from Gana Sikhyaka.

Therefore, considering the demand raised by the Gana

Sikhyakas, a Ministerial Sub-Committee was constituted

under the Chairmanship of the Minister, Finance and

Public Enterprises, vide order No.17420/S&ME dated 21st

August, 2015, and on the basis of the recommendations

made by the said committee, the Government resolved the

demands of Gana Sikhyakas, vide resolution dated

25.07.2016, Clause-1 to 5 of which are extracted

hereunder:-

"1. Ganasikshyaks, who have +2/ Degree qualification with either C.T. /B.Ed. and who have completed eight years of continuous and satisfactory engagement will be regularized as "Elementary Level-V teachers" in the year 2016-17 after detail modalities on regularization are worked out by the Government in School and Mass Education Department.

2. On regularization as Elementary Level-V teacher, they will be entitled to salary in the // 21 //

Pay Scale of Rs. 5,200-20,200/- with Grade Pay of Rs. 2,200/- with D.A. and other allowances as admissible from time to time.

3. Ganasikshyaks having no requisite academic qualification of +2/Degree and training qualification of either C.T. or B.Ed. shall not be regularized as Elementary Level- V teachers.

4. Ganasikshyaks having no requisite academic and training qualification shall acquire the required academic/training qualification by 31st March, 2018 positively. No further relaxation shall be considered thereafter.

5. Ganasikshaks who will not be able to acquire the requisite academic and training qualification by 31st March, 2018 shall be disengaged on 1st April, 2018."

In terms of the above resolution, if a teacher has requisite

academic and training qualifications, his services should

have been regularized as Level-V Asst. Teacher.

12. The Government in School and Mass Education

Department issued a notification on 22.12.2016,

pursuant to resolution dated 25.07.2016, formulating the

modalities for regularization of Gana Sikhyakas. Clause-1

and 2 of the said notification 22.12.2016 read as under:-

"1. The Gana Sikshyaks who have completed 8 years of regular and continuous engagement and have possessed educational // 22 //

and training qualification as mentioned at Para (2) below will be regularized as Level- V Assistant Teacher (ex-cadre) equivalent to Level-V teacher of Elementary cadre.

2. For regularization as Level-V Assistant Teacher (ex-cadre), a Gana Sikshyak must be possessing educational and training qualification as given below:-

(a) (i) Higher Secondary (+2 or its equivalent) and 2 year Diploma in Elementary Education (C.T.) or Higher Secondary (+2 or its equivalent) and 2 year Diploma in Education (Special Education); or Graduate in Arts/ Science and 2 year Diploma in Elementary Education or Graudate Arts/Science and 2 year Diploma in Education (special Education); and must have Odia as M.I.L. up to Class-VII or pass in Odia language test equivalent to M.E. standard conducted, or declared equivalent, by BSE (Odisha); or

(ii) Graduation in Arts/ Science and 1 year Bachelor in Education (B.Ed.) or Graduation in Arts/ Science and 1 Year B.Ed. ( Special Education); or Higher Secondary (+2 or its equivalent) and 4 years Bachelor in Elementary Education or Higher Secondary (+2 or its equivalent) and 4 years B.A./B.Sc. or B.A. /B.Sc. Ed., and must have Odia as M.I.L, up to Class-X or pass in Odia language test equivalent to Xth standard conducted, or declared equivalent, by BSE (Odisha).

(b) Such Gana sikshyak is required to pass OTET within 31st March, 2019 if he has not passed OTET earlier. If she/ he does not pass the OTET by such date, she/ he will not be eligible to get any further increment after 31st March, 2019.

Explanation:-

// 23 //

(i) For the purpose of equivalency of Higher Secondary (+2), examination conducted by the institutions declared equivalent by the Council of Higher Secondary Education, Odisha shall be considered.

(ii) For the purpose of equivalency of 2 years Diploma in Elementary Education, examinations conducted by the institutions declared equivalent by the Board of Secondary Education, Odisha shall be considered.

(iii) For the purpose of 2 years Diploma in Education (Special Education)/ one year B.Ed. (Special Education), a course recognized by the Rehabilitation Council of India (RCI) shall be considered.

(iv) For the purpose of Degree in Teacher Education (B.Ed.), B.Ed. Degree of other Universities declared equivalent with corresponding degree of the Universities of Odisha and a course recognized by the NCTE shall be conducted."

13. On perusal of the aforesaid clause, it is made

clear that Gana Sikhyakas, who have completed eight

years of regular and continuous engagement and have

possessed educational and training qualification, will be

regularized as Level-V Asst. Teacher (ex-cadre) equivalent

to Level-V Teacher of Elementary cadre. As such, there

was no provision for debarring the Gana Sikhyakas,

having no OTET qualification, from regularization as

Level-V Asst. Teacher. Clause-2(b) of aforesaid notification // 24 //

prescribes that the Gana Sikhyaka is required to pass

OTET within 31st March 2019, if he has not passed OTET

earlier. If she/he does not pass the OTET by such date,

she/he will not be eligible to get any further increment

after 31st March, 2019. Thereby, restriction has been

imposed that Gana Sikhyakas, having no OTET

qualification, will not be eligible to receive the increment

and, as such, there is no bar for regularization of their

service, even though they have no OTET qualification,

that too till 31st March 2019. On the basis of Government

letters dated 22.12.2016, 05.01.2017, 27.05.2017 and

27.07.2017 of Director, Elementary Education, a list of

487 trained Gana Sikhyakas, who were found eligible for

appointment as Level-V Asst. Teacher, was sent to the

Directorate, vide letter dated 10.08.2017, for favour of

necessary action. Besides, a copy of the proceedings of the

selection committee meeting held on 06.07.2017 and

05.08.2017 under the Chairmanship of Collector-cum-

Chairman, District Selection Committee was also sent to

the Directorate. Prior to approval of the selected Gana // 25 //

Sikhyakas as Level-V Asst. Teacher, the SPD, OPEPA, vide

letter dated 24.08.2017, directed the DPC, Nayagarh for

publication of the list and bio-datas in his office notice

board and invite objection, if any, from the stakeholders,

if something noticed by them after proper scrutiny. But

after scrutiny of the list of eligible Gana Sikhyakas, a

verified list of trained Gana Sikhyakas was prepared

again. Accordingly, the Government in School and Mass

Education Department conveyed the creation of 563 nos.

of posts of Level-V Asst. Teacher in respect of Nayagarh

district, vide letter dated 18.09.2017. Before issuance of

appointment order on the demands of the Gana Sikhyaka

Mahasangha, the Government issued a clarification letter

relating to validity of permission given to them by

departmental official for prosecuting higher qualification,

vide letters dated 20.09.2017 and 23.09.2017

respectively, Clauses-(a) and (b) of which are extracted

hereunder:-

"a. The Gana Shikhyakas who have acquired higher qualification as non-collegiate candidate by obtaining permission from // 26 //

Competent Authority i.e. Collector or DPC can only be considered for regularization. b. The clarification given at point No. 3 of the Department Letter No. 17960 dated 20.09.2017 is hereby explained further. SPD,OSEPA issued a circular on 07.04.2010 intimating that Collector is the competent authority to issue permission to Gana Shikhykas for obtaining higher qualification. From 16.02.2008 to 07.04.2010, there was no instruction issued on competent authority to issue permission for obtaining higher qualification. In view of the above it is considered to allow the permission issued by others like CI of schools, D.I. of Schools, BDOs, S.I. of Schools, BRCCs and HMs during 16.02.2008 to 07.04.2010. After 07.04.2010, permission from the competent authority only be considered."

14. In compliance of the above, a list of 21

candidates, including the petitioner, who were found not

eligible for appointment as Level-V Asst. Teacher (ex-

cadre), was drawn after proper scrutiny and duly

approved by the Collector-cum-Chairman, District

Selection Committee, Nayagarh. Thereafter, the petitioner

approached the Collector, Nayagarh by filing Misc. Case

No.1/2018, which was disposed of vide order dated

20.04.2018, with the following directions:-

// 27 //

"The D.E.O., Nayagarh is instructed not to delay any further to regularize the case of the petitioners. The entire process should be completed by 15.052018 and compliance be reported. The other debarred candidates of similar nature should be considered along with these petitioners."

15. In the meantime, in W.P.(C) No. 4684 of 2018,

which was filed by Odisha Vikash Parishad, Bhubaneswar

in the nature of Public Interest Litigation, this Court

passed interim order on 24.04.2018 directing the

authorities not to regularize the Gana Sikhyakas, who

does not possess OTET qualification, as Level-V Asst.

Teacher under the notification dated 22.12.2016 and, as

such, the Gana Sikhyakas may be allowed to continue

subject to final result of the writ petition. But, ultimately,

the said writ petition was withdrawn and, thereby, the

interim order passed in the said writ petition no more

subsists. As a consequence thereof, a right accrued in

favour of the petitioner for regularization in service as

Level-V Asst. Teacher along with consequential benefits.

The same having not been acceded to, the petitioner has // 28 //

approached this Court by filing the present writ petition.

But fact remains, the petitioner does not possess OTET

qualification and, as such, he has been absorbed as Gana

Sikhyaka much before the Right of Children to Free and

Compulsory Education Act, 2009 came into force and

subsequent instructions issued from time to time. If the

reference made in Sub-clause-(2) of the circular dated

22.12.2016 will be taken into consideration, it only

provides that a Gana Sikhyaka is required to pass OTET

within 31st March 2019, if he has not passed OTET

earlier. If she/he does not pass the OTET by such date,

she/he will not be eligible to get any further increment

after 31st March, 2019. Thereby, there is no bar to

regularize the service of a Gana Sikhyaka, having no

OTET qualification. Rather, the said sub-clause states

that in the event a Gana Sikhyaka acquired OTET

qualification, he is only entitled to get the increment.

16. In Chander Mohan Negi (supra), the apex

Court held that appointments of teachers made as per the // 29 //

schemes notified by the Government cannot be treated as

illegal, if at all they can be considered irregular, even

though condition has been included that such appointees

should not seek regularization/absorption. It is held that

for no fault of them, they cannot be denied

regularization/absorption. In view of the requirement of

the State, their services were extended from time to time

and now all the appointees have completed more than 30

years of service in different schemes and some of them

acquired higher qualification and training qualification.

Thereby, denial of regularization cannot have any

justification and, as such, the condition of passing of

OTET will not stand as a bar for regularization of the

petitioner, when the State for its own requirement has

extended the term of appointment from time to time and,

as such, appointees have continued for more than 30

years in the post. In view such position, the judgment of

the apex Court, is directly applicable to the present case.

// 30 //

17. So far as the judgment relied upon by the

learned Standing Counsel for School and Mass Education

Department in the case of Anand Kumar Yadav (supra)

is concerned, in the said judgment the apex Court has

taken into consideration the regularization/absorption of

Sikhya Mitra's and it has been held that Sikhya Mitras do

not have any legal right for regularization, as they neither

fulfilled minimum qualification, not even BTC

qualification under 2001 Regulations, nor were they

appointed against sanctioned posts. For mere contractual

appointment, their services cannot be regularized. The

ratio of this case is totally distinguished from Chander

Mohan Negi (supra). As such, the fact of Chander

Mohan Negi (supra) is fully applicable to the present

case. Thereby, the judgment cited by the learned Standing

Counsel for School and Mass Education Department has

no assistance to the present opposite parties.

18. Likewise, the judgment cited by learned

Standing Counsel for School and Mass Education // 31 //

Department in the case of Arbind Jee (supra) is factually

different from the present case and, thereby, the same is

not applicable to the case at hand.

19. Taking into consideration the factual and legal

aspects, as delineated above, this Court is of the

considered view that the opposite parties cannot deny the

benefit of regularization of service to the petitioner as

Level-V Asst. Teacher, as the petitioner has got requisite

academic qualification and has also acquired training

qualification and otherwise also satisfies the eligibility

criteria for regularization. Therefore, for non-acquisition of

OTET qualification, he cannot be denied the benefit of

regularization. If the petitioner has not acquired the OTET

qualification by 31th March 2019, he may not be entitled

to incremental benefit, but that ipso facto cannot deny the

benefit of regularization to him. Accordingly, this Court

directs the opposite parties to regularize the service of the

petitioner as Level-V Asst. Teacher on completion of eight

years as Gana Sikhyaka, as per the notification dated // 32 //

22.12.2016. As he has already retired from service, he

should be extended such benefit notionally from the date

of completion of eight years as Gana Sikhyaka by

regularizing his service as Level-V Asst. Teacher. Since

the petitioner has already retired, his pension be revised

and he should be granted pensionary benefits in the

revised scale of pay admissible to him by fixing the same

notionally, as expeditiously as possible, preferably within

a period of three months from the date of communication

of this judgment.

20. In the result, the writ petition is allowed.

However, there shall be no order as to costs.

..............................

DR. B.R. SARANGI, JUDGE

Orissa High Court, Cuttack The 11th November, 2022, Ashok/GDS