Satya Sain Meher vs State Of Odisha & Ors
2022 Latest Caselaw 4507 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                         WPC(OAC) No.1064 of 2014

  In the matter of an application under Section 19 of the
  Administrative Tribunal's Act, 1985.
                             ..................

Satya Sain Meher                          ....              Petitioner

                                      -versus-

State of Odisha & Ors.                    ....              Opposite Parties


       For Petitioner         :       M/s. D.P. Dhal(Advocate)
                                      S.K. Dash (Advocate)
                                      A.P. Bosh (Advocate)
                                      S. Mohapatra (Advocate)

       For Opp. Parties :             Mr. N. Prusty
                                      Standing Counsel


PRESENT:

    THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY

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     Date of Hearing: 26.08.2022 and Date of Order:08.09.2022
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 Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. S. Mohapatra, learned counsel for the Petitioner and Mr. N. Prusty, learned Standing Counsel appearing for the State-Opp. Parties.

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3. The present writ Petition has been filed with the following prayer:-

"In view of the facts and circumstances mentioned above, the applicant prays for the following relief(s):-

(i) The impugned order under Annexure-3 with regard to production of caste certificate afresh be quashed.

(ii) The respondents, more particularly Respondent No. 3 be directed to promote the applicant from the post of Headmaster, Level-IV to Level- III without production of fresh caste certificate by him and thereby allow the applicant to work as Headmaster Level-III at his promoted place.

(iii) To pass any other order/orders, direction/directions as would be deemed fit and proper by this Hon'ble Tribunal and which would give complete relief to the applicant."

4. Learned counsel for the Petitioner submitted that taking into account the fact that the Petitioner belongs to Scheduled Tribe, his Sub-Caste being 'Kulis' the Petitioner was engaged as an Assistant Teacher vide order dtd.21.11.1998. It is submitted that while continuing as such and vide Order dtd.31.01.2013 under Annexure-3 of the O.P. No. 3, the Petitioner was promoted from Level-V to Level-IV as per Odisha Elementary Education Cadre Rule, 1997 and Odisha Education Cadre Amendment Rule, 2009.

5. It is submitted that subsequently and while continuing as a Level-IV Teacher, when the Petitioner became eligible for his promotion from Level- IV to Level-III, the Petitioner was not given such promotion and instead O.P. No. 3 issued the impugned communication on 25.02.2004 by directing the Petitioner to produce a fresh cast certificate before the said Authority in order to get the benefit of promotion.

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6. It is submitted that even though the Petitioner was found eligible for his promotion from Level-IV to Level-III and his name was indicated in the final selection list at Sl. No. 42, but in view of the impugned communication dtd.25.02.2014 the Petitioner was not given such promotion.

7. It is further submitted that even though in view of the impugned communication issued by O.P. No. 3 the Petitioner in spite of his eligibility was not given promotion from Level-IV to Level-III, but no such requirement was made applicable in respect of other Education districts and eligible teachers in Level-IV were given promotion to Level-III vide Order dtd.28.02.2014 of Block Education Officer, Patnagarh and Order dtd.15.02.2014 of Block Education Officer, Bargarh under Annexure-4 series.

8. It is submitted that since the Petitioner entered into service as a Scheduled Caste candidate with his sub cast being 'Kulis', there was no occasion on the part of O.P. No. 3 to direct the Petitioner to produce the fresh caste certificate. Because of such illegal action of O.P. No. 3 the Petitioner in spite of his eligibility was deprived from getting the benefit of promotion to Level-III, whereas similarly situated Level-IV teachers were given promotion vide Order under Annexure-4 series.

9. Mr. Mohapatra, learned counsel for the Petitioner submitted that challenging such action of the O.P. No. 3 in asking the Petitioner and other eligible teachers belonging to reserve category to provide fresh caste certificate, the concerned teachers belonging to sub-caste 'Kuli' and 'Kulis' when applied for issuance of fresh caste certificate, they were not issued with such certificates by the concerned Tahasil. Accordingly when the matter was carried to this Court and this Court held that persons belonging to Sub Caste 'Kuli' belongs to Scheduled Tribe as like sub-caste 'kulis', the matter was assailed before the Hon'ble Apex court in Civil Appeal No. 7362 of 2013. Hon'ble Apex Court vide its order dtd.27.09.2018 when confirmed the order

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passed by this Court by holding that members belonging to sub-caste 'kuli' also comes within the sub-caste 'kulis', the Petitioner was issued with a fresh caste certificate by the concerned Revenue Officer on 09.11.2018. The said caste certificate and the order of the Hon'ble Apex Court are brought to the records by the Petitioner in shape of an affidavit.

10. It is further submitted that even though Hon'ble Apex Court in its Judgment dtd.27.09.2018 held the Petitioner belonging to Scheduled Tribe category and the Petitioner obtained the fresh caste certificate on 09.11.2018 and produced the same before O.P. No. 3, but the Petitioner was not given promotion till he was ultimately issued with such promotion vide Officer Order dtd.21.12.2020 under Annexure-6.

11. Making all such submissions, Mr. Mohapatra, learned counsel for the Petitioner submitted that because of the impugned communication the Petitioner was deprived from getting the benefit of promotion to Level-III till 21.12.2020, though persons similarly situated were promoted in the year 2014 in other Education districts of Bolangir district vide Orders issued under Annexure-4 series. It is accordingly submitted that the Petitioner is eligible and entitled to get the benefit of promotion from the date such similarly situated teachers were promoted from Level-IV to Level-III vide orders issued under Annexure-4 series.

12. Even though notice of the writ Petition was issued on 27.06.2014 with passing of an interim order that the impugned communication dtd.25.02.2014 under Annexure-3 shall not be a bar for consideration of the promotion of the Petitioner, but the same was never considered till the matter was set at rest by the Hon'ble Apex Court.

13. Not only that in spite of issuance of notice on 27.06.2014, no counter affidavit is filed by the State-Opp. Parties. But Mr. Prusty made his

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submission basing on the materials available in the record and submitted that since the Petitioner failed to provide the fresh caste certificate as directed under Annexure-3 and the same was only produced after disposal of the matter by the Hon'ble Apex Court, the Petitioner was rightly given promotion vide the order dtd.21.12.2020 under Annexure-6. But it was fairly submitted by Mr. Prusty that no such stipulation was issued by other Education Districts in Bolangir district directing the incumbent Level-IV teachers to produce fresh caste certificate for their promotion to Level-III and persons similarly situated in other Education districts were given promotion to Level-III vide order under Annexure-4 series in the year 2014.

14. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the Petitioner was appointed as an Assistant Teacher as a reserve category candidate with his sub caste as 'Kulis'. The Petitioner subsequently was also promoted from Level-V to Level-IV vide order under Annexure-2 dtd.31.01.2013 and at the time of such promotion, no fresh certificate was required to be produced by the Petitioner.

15. But this Court finds that O.P. No. 3 without any justifiable reason issued the impugned communication on 25.02.2014 directing the Petitioner to produce fresh caste certificate prior to his promotion from Level-Iv to Level- III, even though the Petitioner's name was included in the final selection list for such promotion under Annexure-3.

16. Since this Court finds that similarly situated teachers in other Education districts were given promotion from Level-IV to Level-III in the year 2014 itself and no such stipulation was made, calling for production of fresh caste certificate, action of O.P. No. 3 in directing the Petitioner to produce a fresh caste certificate was not just and proper.

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17. This Court finds that because of such illegal action of O.P. No. 3 the Petitioner was deprived from getting the benefit of promotion from Level-IV to Level-III and the Petitioner was deprived from such benefit till 21.12.2020 when he ultimately got the benefit of such promotion.

18. Since this Court finds that similarly situated teachers in other Education districts were given promotion from Level-IV to Level-III without any such stipulation and Level-III teachers come under State cadre, this Court while disposing the writ Petition directs the Opp. Parties to treat the Petitioner to have been promoted notionally to Level-III from the date similarly situated teachers in other Education districts of Bolangir district were given such promotion vide Order under annexure-4 series.

19. Since the Petitioner was only given such promotion vide order dtd.21.12.2020 under Annexure-6 the period up to 21.12.2020 be treated as notional promotion and the Petitioner will not be entitled to get any financial benefit for the said period up to 21.12.2020 as he has not worked against the said post. This Court directs the Opp. Parties to complete the entire exercise by extending the benefit as directed within a period of three (3) months from the date of receipt of this order.

20. The writ Petition is accordingly disposed of.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 08th of September, 2022/Sneha