The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20607 of 2023 Binodini Mohapatra …. -versus- Petitioner Mr. P.K. Giri, Advocate State of Odisha & Others …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 02.07.2024 Order No. 10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dtd.13.12.2022 so passed by Opposite Party No.2 under Annexure-10. Vide the said order, claim of the Petitioner to extend her with the benefit of promotion to the rank of Head Master from the date her juniors got the said benefit was rejected. 4. It is the case of the Petitioner that Petitioner though was otherwise eligible to get the benefit of promotion, but when her juniors got the said benefit in the year 1991, Petitioner challenging such action of the Opposite Parties and with a further prayer to extend her the benefit of promotion from the date her juniors got the said benefit approached the Tribunal in O.A No.1531(C)/1997. The // 2 //
Decision
Tribunal vide order dtd.18.02.2013 disposed of the Original Application inter alia with the following order:- “When the matter is taken up today, nobody appeared on behalf of the applicant nor the applicant herself remained present to move this O.A. Learned Standing Counsel (SME) is also not present. The applicant, who was working as a Teacher in Saradhabali UGME School, Puri under the administrative control of District Inspector of Schools, Puri, had filed this O.A. in March, 1997 with a prayer for a direction to the respondents to give promotion to the applicant to the post of Headmaster of UGME/ME Schools from the date her juniors got such promotion. It has also been prayed for a direction to the respondents to prepare the gradation list of Asst. teachers of Primary / UGME /ME Schools having trained graduate qualification on the basis of date of acquisition of B.Ed. qualification. The subject matter of this case has already been decided by the Hon’ble High Court in a good number of cases after disposal of the original applications by this Tribunal. In that view of the matter, the respondent authorities are at liberty to prepare the gradation list of Asst. Teachers of Primary /UGME/ME Schools basing on the observation, as has been made by the Hon’ble High Court, before effecting the promotion to the post of Headmaster of UGME/ME Schools. The O.A is accordingly disposed of without any observation on the merit of the case”. 4.1. Petitioner challenging the order so passed by the Tribunal approached this Court in W.P.(C) No.28462 of 2013. This Court vide order dtd.09.03.2022 while disposing the Writ Petition passed the following order:- “1.This matter is taken up through hybrid mode. 2. In this writ petition, the petitioner has prayed for a direction to the opp. parties-authorities to give promotion her to the post of Headmaster of UGME/M.E. School after list of Assistant Teachers of preparing the gradation Primary/UGME/M.E. Schools in accordance with the law and principle settled by this Hon’ble Court in the case of Page 2 of 9 // 3 // P.Bengali Patro and 21 others v. State of Orissa and others reported in 104 (2007) CLT 102 within a stipulated time. 3. Learned counsel for the petitioner contended that this matter is squarely covered with the case of P.Bengali Patro (supra). 4. In that view of the matter, this writ petition stands disposed of in terms of the aforesaid judgment and the opp. parties-authorities are directed to extend the benefit to the petitioner in terms of the said decision, within a period of four weeks from the date of communication of this order. 5. Issue urgent certified copy as per rules. 4.2. It is contended that this Court vide order dtd.09.03.2022 while disposing the writ petition dispose of the same, in the light of the judgment passed in the case of P. Bengali Patro and 21 Others vs. State of Orissa and Others, reported in VOL.104 (2007) CLT, Page-102 and further directed the Opposite Parties to extend the benefit of promotion to the Petitioner in terms of the decision in the case of P. Bengali Patro. 4.3. Learned counsel for the Petitioner further contended that in the case of P. Bengali Patro, the view expressed by this Court in Para-17 reads as follows:- In view of the above mentioned “17. facts and circumstances, the orders dated 21.8.1997 and 4.10.1997 impugned in O.J.C. Nos.13377 of 1997 and 1153 of 1998 are quashed and these Writ Petitions are allowed accordingly. O.J.C. No.4193 of 1999 is disposed of with the modification in the impugned judgment and order of the Tribunal dated 7.11.1998 as under: The seniority list of the teachers who were already promoted on the basis of the Government Resolution dated 2.12.1991 shall not be disturbed. Further, the teachers who were entitled to be considered for promotion as Headmasters the subsequent Government Resolution dated before Page 3 of 9 // 4 // 8.1.1996 on the basis of their seniority which was to be determined pursuant to the Government Resolution dated 2.12.1991 shall be considered with effect from the date of promotion of their next juniors under the criteria laid down in the Government Resolution dated 2.12.1991”. 4.4. It is contended that in terms of the decision rendered in the case of P. Bengali Patro, seniority list of eligible teachers in terms of the Govt. Resolution dtd.02.12.1991 was never prepared nor the direction issued in the case of P. Bengali Patro was ever implemented by the concerned District Education Officer. However, placing reliance on the ratio decided in the case of the P. Bengali Patro, this Court vide order dtd.09.03.2022 directed the opposite parties to consider the claim of the Petitioner and to extend her the benefit of promotion. But without following the ratio decided in the case of P. Bengali Patro and the order passed by this Court on 09.03.2022, Opposite Party No.2 without proper appreciation of the ratio in the case of P. Bengali Patro and the direction issued by this Court in its order dtd.09.03.2022, rejected the claim relying on the provisions contained under the Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 so notified on 11.08.1997. 4.5. It is contended that the aforesaid Rule so relied on by Opposite Party No.2 while rejecting the Petitioner’s claim is not applicable to the case of the Petitioner as Petitioner’s claim is squarely covered by the ratio decided in the case of P. Bengali Patro. Page 4 of 9 // 5 // 4.6. It is also contended that while rejecting the Petitioner’s claim, Opposite Party No.2 though found that two of the juniors who have acquired the B.Ed. in the year 1990 and 1991 have got the benefit of promotion, but Petitioner having acquired the B.Ed. qualification in the year 1979 was not extended with the benefit of promotion as directed. 4.7. It is accordingly contended that the action of Opposite Party No.2 in relying on the 1997 Rules, while rejecting the Petitioner’s claim is not sustainable in the eye of law, in view of the ratio decided in the case of P. Bengali Patro and the direction contained in order dtd.09.03.2022 of this Court. In view of the admission that juniors to the Petitioner have got the benefit of promotion who have acquired the B.Ed. qualification much later than the Petitioner, the claim of the Petitioner should have been allowed with due extension of all service and financial benefit as due and admissible. 5. Mr. S. Jena, learned Addl. Government Advocate for the State on the other hand while supporting the impugned order contended that since by the time this Court directed for consideration of the Petitioner’s claim in the light of the decision in the case of P. Bengali Patro, the aforesaid 1997 Rules has already been notified, Opposite Party No.2 placing reliance on the said Rules found that the Petitioner is not eligible to get the benefit. 5.1. It is also contended that since the gradation list in terms of the Govt. Resolution dtd.02.12.1991 was never Page 5 of 9 // 6 // published showing the placement of the petitioner, Petitioner cannot be extended with the benefit of promotion after coming into force of the 1997 Rules. The stand taken in Para-10 and 12 of the counter affidavit reads as follows:- “10. That, the petitioner has already been retired from Govt. service on superannuation w.e.f. 31.05.2012 on attainting the age of 58 years. The Erstwhile Inspector of Schools, Puri Circle, Puri was the Cadre Controlling Authority before amendment of Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 came into force w.e.f. 12.08.1997. Without preparation / publication of Gradation List by the competent authority one cannot be promoted to the higher post. In the meantime Govt. has made rules to regulate the method of recruitment and condition of services of teachers of Elementary Education namely OEE Rules, 1997 notified vide No.23027 dt.11.08.1997 of S & ME Department, Odisha effective w.e.f. 12.08.1997 in which all rules pertaining to the criteria for promotion have been repealed which has been amended in the year 2009, 2014 and 2019. As per Clause No.15 of OEE Rule, 1997 the District Inspector of Schools of the concerned Education Districts shall maintain gradation list separately for the posts belonging to Level-V, Level-IV and Level-III of the service strictly on the basis of seniority. Copy of Clause No.15 of OEE Rule, 1997 is annexed herewith as Annexure-A/4. 12. That, it is humbly submitted that, one Hara Prasad Das, Asst. Tr. Has filed O.A No.1101 (C) /2009 with a prayer for promotion to the post of Headmaster. The Hon’ble Court vide the their Order No.4 dt.13.7.2009 has directed Respondent No.3 (Erstwhile I/S, Puri Circle, Puri) to consider the representation of the petitioner. The Erstwhile Inspector of Schools, Puri Circle, Puri vide their order No.12403 dt.23.11.2009 has considered the representation stating therein that, the teachers having B.Ed. qualification will be promoted to the post of Headmaster to Govt. U.P./UGUPS in the basis of service seniority only and rejected the prayer of the petitioner with a view that the case of the applicant will be consider when his term will come, his case may be considered. Copy of order No.12403 dt.23.11.2009 is annexed herewith as Annexure-C/4”. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court Page 6 of 9 // 7 // finds that Petitioner when was denied with the benefit of promotion on the face of such benefit extended in favour of her juniors, Petitioner approached the Tribunal in O.A. No.1531(C) of 1997. The Tribunal when disposed of the matter vide order dtd.18.02.2013 under Annexure-8, Petitioner challenging the same approached this Court in W.P.(C) No.28462 of 2013. This Court vide order dtd.09.03.2022 under Annexure-9, while disposing the writ petition directed the Opposite Parties to consider the claim of the Petitioner in the light of the decision in the case of P. Bengali Patro as cited (supra). While directing so, this Court also directed Opposite Parties to extend the benefit in favour of the Petitioner. 6.1. This Court after going through the ratio decided in the case of P. Bengali Patro finds that this Court in the said reported case clearly held that those Teachers who have already got the benefit of promotion in terms of the Resolution dtd.02.12.1991 shall not be disturbed. This Court further held that those Teachers who are entitled to be considered for promotion as Headmaster before the subsequent Govt. Resolution issued on 08.01.1996, on the basis of their seniority is to be determined in terms of the Resolution dtd.02.12.1991. 6.2. Since no document has been produced by the Opposite Parties showing such preparation of the gradation list in terms of the Govt. Resolution dtd.02.12.1991, placing reliance on the admission made by Opposite Party No.2 Page 7 of 9 // 8 // regarding extension of the benefit of promotion in favour of two Teachers who have acquired the B.Ed. qualification in the year 1991 and 1990 on the face of the B.Ed. qualification acquired by the Petitioner in the year 1979, this Court is of the view that Petitioner’s claim has been illegally rejected vide the impugned order dtd.13.12.2022. The reliance placed by Opposite Party No.2 to the provisions contained under 1997 Rules as per the considered view of this Court is not applicable to the claim of the Petitioner as the same runs contrary to the decision in the case of P. Bengali Patro, which was directed to be followed in the case of the petitioner by this Court in its order dtd.09.03.2022. 6.3. Therefore, this Court is inclined to quash the order dtd.13.12.2022 so passed by Opposite Party No.2 under Annexure-10. While quashing the same, this Court directs Opposite Party Nos.2 and 3 to extend the benefit of promotion in favour of the Petitioner to the post of Headmaster from the date two of her juniors namely Krupasindu Pradhan and Damodar Nanda got the said benefit in the year 1991. However, since it is contended that Petitioner has retired from service on attaining the age of superannuation on 31.05.2012, such benefit of promotion be extended on notional basis. Pension and other pensionary benefits however be revised with due extension of the financial benefits as due and admissible. The entire exercise as directed be taken up and completed in all Page 8 of 9 // 9 // respect by Opposite Party Nos.2 and 3 within a period of three (3) months from the date of receipt of this order. 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Jul-2024 12:32:37 Page 9 of 9