The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19642 of 2022 and batch of Writ Petitions (In the matter of applications under Articles 226 and 227 of the Constitution of India, 1950). In W.P.(C) No.19642 of 2022 Ashok Kumar Mohapatra …. Petitioner State of Orissa and Ors. …. Opp. Parties -versus- Advocates appeared in the case through Hybrid Mode: For Petitioner : Mr. B. Routray, Sr. Adv. Mr. Dillip Ku. Mohapatra, Adv. Mr. Sisir Kumar Purohit, Adv. Mrs. Sarmistha Samal,Adv. -versus- For Opp. Parties : Mr. D.R. Mohapatra, SC (for S & ME Deptt.) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-22.09.2022 & 21.10.2022 DATE OF JUDGMENT:-01.02.2023 W.P.(C) No.19642 of 2022 & Batch of cases i.e. W.P.(C) No.19642 of 2022 along with W.P.(C) Nos. 15960, 16245, 17141, 19004, 19008, 19010, 19011, 19013 & 19014, 19015, 19806, 19807, 19808, 19811, 19813, 19814, 20389, 20391, 20396, 20399 of 2022, And W.P.(C) Nos. 20679, 22419, 22420, 22422, 22423, 22425, 22427, 22429, 22432, 22433, 22434, 22435, 22436, 22440, Page 1 of 32 22441, 23223, 23231, 23232, 23236, 23643, 23671, 23672, 23673, 23674, 23675, 23676, 23677, 23678, 23680, 23681, 23683, 23684, 23685, 23687,23688, 23690, 23692, 23694, 23695, 23696, 23698, 23699, 23700, 23701, 23702, 23704, 23705, 23706, 23707, 23708,23709, 23711, 23712, 23716, 23720, 23724, 23887, 23888,23889, 23890, 23891, 23892, 23893, 23894, 23895, 23896, 23897, 23898, 23899, 23900, 23926, 23928,23930,23932, 23933, 23934, 23935, 23937, 23940, 23942, 24025, 24116, 24117, 24118, 24119,24120, 24121, 24122, 24123, 24124, 24125, 24126, 24127, 24128, 24129, 24130, 24131, 24132, 24133, 24134, 24135, 24136, 24137, 24138, 24139, 24140, 24141, 24142, 24143, 24145, 24146, 24149, 24150, 24153, 24158, 24160, 24164, 24376, 24377, 24402, 24405, 24409, 24411, 24414 & 24415 all of 2022. W.P.(C) No.19038 of 2022, W.P.(C) No.19657 of 2022, W.P.(C) No.19658 of 2022 along with W.P.(C) No. 17600 of 2021, 4681, 18482, 18483, 18930,18933, 18934, 18936, 18939, 18941, 18943, 18944, 18945, 18947, 18948, 18949, 18951, 18952, 18954, 18955, 18957, 18959, 18961, 18963, 18965, 18966,19659, 19663, 19676 19681, 19684, 19687, 19689, 19730, 19731, 19732, 19748, 19749, 19750, 19751, 19752, 19753, 19754, 19755, 19756, 19757, 19758, 19759, 19760, 19761, 19762, 19763, 19816, 19818, 19820, 19921, 19923, 19925, 19927, 19929, 19931, 19932, 19933, 19934, 19935, 19936, 19937, 19938, 19939, 19940, 19941, 19942, 19943, 19944, 19945, 19946, 19948, 19949, 19951, 19953, 19957, 19958, 19960, 19961, 19963, 19965, 19968, 19971, 20035, 20057, 20058, 20119, 20177, 20178, 20180,20182, 20183, 20185, 20187, 20188, 20189, 20190, 20191, 20193, 20194, 20195, 20199, 20285, 20287, 20289,, 20290, 20291, 20293, 20295, 20296, 20299, 20300, 20302, 20303, 20305, 20307, 20309, 20310, 20313, 20314, 20316, 20317, 20318, 20319, 20320, 20321, 20322, 20323, 20324, 20326, 20327, 20337, 20338, 20341, 20343, 20345, 20347, 20348, 20351, 20352, 20354, 20355, 20361, 20363, 20366, Page 2 of 32 20369,20370, 20371, 20372, 20373, 20393, 20395, 20475, 20478, 20590, 20593, 20594, 20595, 20597, 20598, 20599, 20600, 20601, 20602, 20603, 20604, 20606, 20608, 20609, 20615, 20616, 20617, 20618, 20799, 20801, 20810, 20812, 20814, 20816, 20817, 20819, 20821, 20823, 20825, 20827, 20830, 20831, 20833, 20836, 20838, 20913, 20914, 20917, 20920, 20922, 20925, 20927, 20930, 20931, 20934, 20935, 20936, 21075, 21076, 21078, 21082, 21085, 21089, 21091, 21094, 21096, 21098, 21101, 21107, 21111, 21114, 21117, 21122, 21124, 21125, 21126, 21127, 21129, 21132, 21134, 21145, 21147, 21149, 21152, 21157, 21159, 21160, 21163, 21165, 21167, 21168, 21169, 21171, 21172, 21173, 21174, 21178, 21182, 21365, 21369, 21370, 21372, 21460, 21463, 21464, 21466, 21467, 21469, 21760, 21764, 21767, 21770, 21771, 21952, 21953, 21955, 21956, 21959, 21962, 21964, 21968, 21978, 21979, 21980, 21981, 21982, 21983, 22042, 22044, 22046, 22047, 22049, 22053, 22054, 22056, 22072, 22075, 22077, 22078, 22080, 22082, 22084, 22086, 22089, 22091, 22095, 22096, 22098, 22100, 22101, 22102, 22105, 22107, 22108, 22109, 22111, 22112, 22113, 22114, 22117, 22118, 22119, 22122, 22123, 22124, 22125, 22126, 22127, 22129, 22132, 22133, 22134, 22135, 22136, 22137, 22141, 22143, 22148, 22152, 22166, 22170, 22174, 22178, 22182, 22185, 22190, 22282, 22285, 22287, 22289, 22292, 22304, 22337, 22338, 22345, 22348, 22356, 22358, 22359, 22361, 22362, 22363, 22365, 22366, 22367, 22368, 22369, 22370, 22371, 22372, 22373, 22374, 22375, 22376, 22378, 22379, 22380, 22381, 22382, 22384, 22385, 22387, 22388, 22393, 22398, 22399, 22545, 22546, 22547, 22548, 22549, 22550, 22552, 22553, 22554, 22555, 22557, 22558, 22560, 22563, 22564, 22566, 22567, 22569, 22572, 22574, 22577, 22579, 22581, 22638, 23224, 23225, 23229, 23230, 23234, 23235, 23237, 23239, 23241, 23243, 23276, 23277, 23278, 23279, 23280, 23281, 23282, 23284, 23285, 23286, 23287, 23288, 23290, 23291, 23294, 23299, 23301, 23303, 23305, 23306, Page 3 of 32 23307, 23308, 23309, 23310, 23311, 23313, 23314, 23319, 23320, 23321, 23421, 23449, 23451, 23452, 23454, 23459, 23460, 23461, 23463, 23473, 23475, 23476, 23477, 23751, 23754, 23760, 23762, 23763, 23764, 23767, 23770, 23771, 23773, 23830 and 23831 of 2022, Along with W.P.(C) No.27218 of 2022, W.P.(C) Nos.23264, 23268, 23270, 23271, 23272, 23273, 23275, 23293, 23295 & 23296 of 2022, W.P.(C) Nos.23997 & 26061 of 2022, W.P.(C) No.24111 of 2022, W.P.(C) Nos.24538 & 25981 of 2022, W.P.(C) No.25487 of 2022, W.P.(C) Nos.26053, 26056, 26059, 26065, 26067, 26070 & 26073 of 2022, W.P.(C) No.27205 of 2022, W.P.(C) Nos.20325, 21191, 21788, 21791, 21793, 22685, 22832, 23250, 24001, 24012, 24015, 24018, 24019, 24148, 24152, 24154, 24156, 24157, 24159, 24161, 24163, 24165, 24167, 24168, 24172, 24174, 24176, 24178, 24180, 24181, 24183, 24184, 24186, 24187, 24192, 24196, 24197, 24198, 24200, 24201, 24202, 24203, 24205, 24206, 24207, 24209, 24210, 24211, 24212, 24213, 24214, 24215, 24216, 24224, 24225, 24226, 24228, 24230, 24231, 24232, 24234, 24235, 24236, 24237, 24238, 24239, 24241, 24242, 24243, 24244, 24246, 24247, 24251, 24252, 24253, 24264, 24269, 24271, 24274, 24284, 24288, 24290, 24292, 24295, 24297, 24299, 24334, 24338, 24341, 24344, 24347, 24349, 24378, 24380, 24382, 24384, 24385, 24456, 24458, 24460, 24462, 24463, 24519, 24521, 24523, 24525, 24822, 24826, 24828, 24890, 24902, 24904, 24906, 24907, 24908, 24911, 24913, 24915, 24917, 24918, 24971, 24972, 24974, 24975, 24977, 24980, 24981, 24982, 24983, 24985, 24986, 24987, 24988, 24989, 24991, 24992, 24994, 24995, 24998, 24999, 25001, 25002, 25004, 25005, 25007, 25011, 25013, 25015, 25017, 25019, 25055, 25057, 25058, 25059, 25063, 25064, 25065, 25067, 25069, 25072, 25077, 25078, 25079, 25080, 25082, 25085, 25086, 25088, 25090, 25091, 25092, 25094, 25096, 25817, 25818, 25820 & 25823 of 2022, and W.P.(C) Page 4 of 32 Nos.22657, 21794, 22351, 22353, 22360, 22655, 23105, 24265, 24267, 24277, 24280, 24282, 24464, 24465, 24467, 24468, 24470, 24471, 24472, 24474, 24476, 24559, 24560, 24734, 24736, 24772, 24777, 24779, 24780, 24785, 24787, 24789, 24791, 24793, 24796, 24804, 24806, 24808, 24810, 24812, 24813, 24814, 24815, 24816, 24817, 24818, 24820, 24831, 24837, 24838, 24848, 24850, 24851, 24853, 24855, 24862, 24865, 24867, 24868, 24870, 24872, 24875, 24877, 24879, 24880, 24881, 24882, 24888, 24893, 24894, 24896, 24897, 25045, 25604, 25608, 25610, 25612, 25616, 25631, 25632, 25633, 25635, 25636, 25638, 25639, 25641, 25642, 25643, 25645, 25651, 25654, 25658, 25660, 25663, 25665, 25667, 25668, 25729, 25730, 25731, 25732, 25760, 25771, 25773, 25777, 25793, 25802, 25805, 25808, 25811, 25812, 25816, 25819, 26313, 26319, 26332, 26339, 27016, 27017, 27018, 27019, 27020, 27022 & 27024 of 2022. Dr. S.K. Panigrahi, J. 1. Since similar questions of law or facts are involved in the above mentioned Writ Petitions, all the matters were heard together. However, this Court felt it appropriate to decide W.P.(C) No.19642 of 2022 first and whatever the outcome of the said Writ Petition, the same will be covered to other similar Writ Petitions mentioned hereinabove. I. Facts of the case: 2. The Petitioner who is serving as Headmaster in Sundargram High School, Sundargram, in the district of Cuttack has filed W.P.(C) No.19642 of 2022 (hereinafter referred to as “the Writ Petition” for brevity) questioning Page 5 of 32 the legality and propriety of Office Order No.3424 dated 10.03.2022 passed by the Opposite Party No.3/District Education Officer, Cuttack in not granting 3rd MACP with effect from 13.01.2018 and also not treating the payment of Trained Graduate Scale after acquiring Trained Graduate qualification as one upgradation. He has challenged the said order on the ground that the said order has been passed in clear violation of the order dated 09.10.2018 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar (hereinafter referred to as “the Tribunal” for brevity) in O.A. No.1668 of 2017 (Ashok Kumar Mohapatra –vrs.- State of Orissa and Ors.) which
Facts
has been confirmed by this Court vide order dated 13.03.2020 passed in W.P.(C) No.6698 of 2020 (State of Odisha & Ors. v. Ashok Kumar Mohapatra & Anr.) and later by the Supreme Court vide order dated 04.01.2021 passed in Special Leave to Appeal (c) No.15573 of 2020 (The State of Odisha & Ors. v. Ashok Kumar Mohapatra) as well as the direction of the Government of Odisha, Department of School and Mass Education vide Letter No.18126 dated 21.09.2021. Further, the Opposite Party No.2/ Director of Secondary Education, Orissa, Bhubaneswar vide Letter No.6363 dated 07.03.2022 had also Page 6 of 32 instructed to the District Education Officer, Cuttack to comply with the order of the learned Tribunal. 3. The averments made in the writ petition are that the Petitioner was initially appointed as an Asst. Teacher on 01.01.1987 as against Trained Graduate post in B.M. High School, Kantapada and, accordingly, joined on the very same day. At the time of initial appointment, the Petitioner was only a Science Graduate who had acquired B.Ed. qualification on 12.01.1988. The appointment of the Petitioner was approved by the Inspector of School vide order dated 30.11.1989 in the scale of pay 935-1530 (untrained graduate scale) with effect from the date of joining till date of publication of B.Ed. result (01.1.1987 to 11.01.1988) and in the scale of pay 1050-2085 (Trained Graduate Scale) with effect from 12.01.1988. In the meantime, the Petitioner was transferred to Sundargram High School as an Asst. Teacher and subsequently promoted to the post of Headmaster and is continuing as such. While the Petitioner was continuing as an Asst. Teacher of an aided High School, the Government took a policy decision to take over management of around 3000 High Schools in the State of Odisha including the Petitioner's School. Accordingly, the management of the Petitioner's School were taken over by the State Page 7 of 32 Government vide resolution dated 16.12.1994 of the School and Mass Education Department, Government of Orissa. After issuance of the aforementioned Resolution, all the employees of 3000 Aided High Schools including the Petitioner were treated as Government employees with effect from 07.06.1994. While the matter stood thus, the Government after 8 years of issuance of the Resolution dated 16.12.1994 issued another Resolution dated 07.12.2002 fixing the inter-se seniority among the old Government School Teachers and new Government School Teachers for the purpose of merger of the cadre for both the schools. It is clear from the said Resolution dated 07.12.2002 that for the purpose of fixation of seniority in between the teacher of new Government High School and old Government High School, 50% service of pre-taken over period will be computed for the purpose of seniority of new taken over High Schools and 100% service of old Government High Schools will be computed for the purpose of seniority. It is pertinent to mention here that in the year 2008 the Government introduced Orissa Revised Scales of Pay Rules, 2008 (hereinafter referred to as “the ORSP Rules, 2008” for brevity). Rule-14 of the ORSP Rules, 2008 deals with Assured Career Progression (ACP), Rule- 19 of the said Rules deals with the power of the Government to relax the Page 8 of 32 Rules and Rule-16 of the said Rules deals with the authority competent to fix the pay. In exercise of the power conferred under the Rules the Government of Odisha, Finance Department issued a Resolution dated 06.02.2013 called RACP scheme to the State Government employees under the ORSP Rules, 2008. Clause 7 of the said Resolution clearly stipulates that financial upgradation under RACPs shall be purely personal to the employee and shall have no relevance to the position, seniority in the grade. Subsequently, the Government issued a letter dated 09.04.2015 enclosing a proceeding of joint review meeting held on 7/8.01.2015 in clarifying therein that the RACP will be allowed with effect from the date of training. In terms of the ORSP Rules, 2008 read with Finance Department Resolution dated 06.02.2013 the applicants were allowed to avail the RACP after completion of 10/20 years of service with effect from 12.01.1998. It is pertinent to mention here that as per the ORSP Rules, 1998, the applicant was also allowed the Time Bound Advancement (TBA) scale as revealed from the letter No.10353 dated 08.07.2003 of DEO, Cuttack which is amply reflected in the relevant portion of the service book. While the matter stood thus, the Government issued the order dated 23.08.2017, clarifying therein that for sanction of RACP in favor of the employees Page 9 of 32 of taken over High School like the Petitioner’s school that "the period of service for RACP benefit of the employees of taken over schools shall be counted from the date of employee counts it for fixation of inter-se seniority in the cadre for the promotion and the period from untrained to trained will be counted as one upgradation under RACP.” 4. Questioning the legality and propriety of the stipulation made in the letter dated 23.08.2017 in the guise of clarification for sanction of RACP in favor of teachers of taken over High Schools, the present Petitioner preferred one Original Application bearing O.A. No. 1668 of 2017 and the Tribunal vide order dated 09.10.2018 not only quashed the said letter dated 23.08.2017 but also has held that the present Petitioner is entitled for 3rd financial upgradation with effect from 13.01.2018. In the said order the Tribunal has clearly observed that counting period of service from the date of fixation of inter-se seniority and counting untrained to trained as one upgradation is contrary to the settled position of law. 5. Against the said order dated 09.10.2018 passed by the Tribunal in O.A. No. 1668 of 2017, the State Government preferred a Writ Petition bearing W.P.(C) No.6698 of 2020 before this Court and this Court vide order dated 13.03.2020 dismissed the said Writ Petition thereby confirmed the Page 10 of 32 order of the Tribunal. Thereafter, the State Government again questioned the legality of the order passed by the Tribunal in O.A. No.1668 of 2017 and later it was challenged before this Court in W.P.(C) NO.6698 of 2020. Later, the State preferred Special Leave to Appeal (C) No.15573 of 2020 before the Supreme Court which was ultimately dismissed on 04.01.2021. After dismissal of SLP by the Apex Court, the State Government issued letter No.8367 dated 13.04.2021 directing the Director, Secondary Education, Odisha, Bhubaneswar to comply with the order of the Courts. Even after issuance of the said letter dated 13.04.2021, the Opposite Parties did not grant the RACP/MACP benefits in favor of the similarly placed persons in view of the stipulation made in the said letter that the said decision is not a precedent for others. 6. In an identical case bearing W.P.(C) No.16032 of 2021 (Binod Chandra Pal vs. State of Orissa) this Court issued notice to the Joint Secretary, School and Mass Education Department to submit explanation under what capacity she has made such stigma even after the disposal of the proceedings by the High Court and Apex Court. Rather it is a clear attempt to over reach the judgment of the judicial forum even after the order has attained the finality in the Apex Court. After issuance of notice, the Government Page 11 of 32 thought it proper to withdraw the stipulation made in the Government letter dated 13.04.2021 and accordingly informed this Court on 29.07.2021 as it can be revealed from the finding of this Court vide order dated 29.07.2021 passed in W.P.(C) No.16032/2021. 7. Thereafter the Government vide order dated 21.09.2021 directed the Director by referring the O.A. No.1668 of 2017 filed by the Petitioner to implement the order of the Tribunal with a copy to District Education Officer, Cuttack. The Director directed vide order dated 07.03.2022 to the District Education Officer, Cuttack to implement the Courts’ orders by granting 3rd MACP to the Petitioner with effect from 13.01.2018. 8. The District Education Officer without considering the direction of the Courts and the higher authority passed the impugned order dated 10.03.2022 refusing to grant 3rd MACP with effect from 13.01.2018, on the other hand, it computed the untrained graduate period of service as one upgradation. II. Submissions on behalf of the Petitioner 9. Learned counsel for the Petitioner submits that admittedly the Petitioner having B.Sc. qualification was appointed as an Assistant Teacher against the Trained Graduate post and his post was approved by the Managing Committee vide Page 12 of 32 Resolution No.15 dated 20.10.1987. The Petitioner also received untrained scale from 01.01.1987 to 11.01.1988 and trained scale from 12.01.1988 i.e. the date of acquiring B.Ed. qualification. Under the ORSP Rule, 1998 the Time Bound Advancement (TBA) scale like ACP/ RACP was given to the Petitioner after completion of 15 years of service with effect from 12.01.2003. He further submitted that after issuance of Resolution dated 06.02.2013 by the Finance Department, Government of Odisha, the Petitioner was allowed to avail the benefits of RACP after completion of 10/20 years of service with effect from 12.01.1998 and 12.01.2008 respectively. The District Education Officer, Cuttack vide order dated 28.02.2014 and subsequent action of District Education Officer, Cuttack in issuing the impugned order thereby modifying the earlier order in granting RACP in favor of the Petitioner after completion of 10/20 years of service with effect from getting Trained Graduate scale is also unwarranted in law. 10. It is also submitted that the validity of Government letter dated 23.08.2017 containing two issues i.e." (i) the period of service for RACP benefits of the employees of taken over schools shall be counted from the date of employees joining counts it for fixation of inter-se-seniority in the cadre for promotion and (ii) the period from untrained to trained will Page 13 of 32 be counted as one upgradation under RACP has already been quashed by the learned Tribunal which was confirmed by this Court as well as the Apex Court. At this juncture, the action of the District Education Officer, Cuttack in not granting 3rd RACP with effect from 13.01.2018 as per the order of the Courts supra is not only contemptuous in nature, but also clear colorable exercise of power only to harass the Petitioner. 11. He further submitted that not only has the Government, in principle, accepted the ratio of the judgment (Ashok Kumar Mohapatra’s Case) in the Petitioner’s case, but also has acted upon by issuing the letter dated 14.07.2022 by the Director of Secondary Education to grant the similar benefits to other similarly placed person and, accordingly, all most all District Education Officers have started processing for sanction of RACP/MACP in favor of similarly placed persons. Therefore, the action of District Education Officer, Cuttack in issuing impugned order is uncalled for. 12. He further submitted that prior to introduction of the Orissa Subordinate Education (Methods of Recruitment and Conditions of Service) Rules, 1993, the Orissa Subordinate Education Service (General Branch) Rules, 1972 was in force and under the said Rules, two posts were available (i) Page 14 of 32 Trained Graduate post and (ii) Untrained Graduate post. This Court while considering the statutory provisions of 1972 Rules read with 1974 Rules, has held in the case of Vivekananda Das Vs. State of Orissa1 that untrained teachers can be appointed as against the Trained Graduate post and will get untrained scale till acquiring the training qualification and thereafter trained scale with effect from acquiring the training qualification. The said judgment of this Court has been affirmed by the Apex Court. In fact, there is no legal bar in appointing untrained teachers as against Trained Graduate post. It is also submitted that with regard to grant of higher scale of pay on acquiring higher qualification has already been resolved in O.A. No. 520 of 2014 which has been confirmed in W.P. (C) No.2831 of 2016 as well as by the Apex Court in Diary No.20358 of 2017. Therefore, the impugned order is erroneous, illegal and unsustainable in law. III. Submissions on behalf of by the Opposite Parties: 13. Per contra, a counter affidavit has been filed on behalf of the Opposite Party No.3/ District Education Officer, Cuttack and submitted by the learned Standing Counsel for the Department of School and Mass Education that the Petitioner, who is now working as Sr. SES Headmaster at 1 1997 (ii) OLR 122 Page 15 of 32 Sundargram High School, Kantapada, Cuttack has challenged the legality and propriety of the Office Order No.3422 dated 10.03.2022 claiming that the District Education Officer, Cuttack is not granting 3rd MACP with effect from 13.01.2018 and also treating the payment of Trained Graduate Scale as one up-gradation on the ground of violation of Order dated 09.10.2018 passed in O.A. No.1668 of 2017. In this connection, it was submitted that the claim of the Petitioner is not appropriate and legally untenable because of the order dated 09.10.2018 passed in O.A. No.1668 of 2017 and with due concurrence of the Government as well as the Directorate of Secondary Education, Odisha, the Petitioner has already been allowed the 3rd MACP under ORSP Rules, 2017 with effect from 13.01.2018 vide this Office Order No.3424 dated 10.03.2022. Therefore, it appears that no illegality has been committed by the Opposite party No.3 as claimed by the Petitioner. Learned Standing Counsel further submitted that the Petitioner has prayed to quash the impugned order dated 10.03.2022, deliberately without indicating the specific letter number. In this connection, it was submitted that on 10.03.2022 the Opposite Party No.3 issued two different letters concerning the pay fixation of the present Petitioner. The 1st letter was issued vide letter No.3422 dated Page 16 of 32 10.03.2022 which was issued concerning the 1st and 2nd RACP in respect of the Petitioner. So far as 3rd MACP in term of the order passed by the Tribunal which has been confirmed by this Court, so also not entertained by the Supreme Court of India, an emergent scrutiny Committee was convened under the Chairmanship of the Opposite Party No.3/ District Education Officer, Cuttack, for the purpose of allowing 3rd financial upgradation by way of MACP under ORSP Rules, 2017, with effect from 13.01.2018. In the said scrutiny Committee, the pay of the Petitioner was fixed at Level-10 of the pay matrix taking into consideration his initial date of appointment with effect from 01.01.1987, which correspondence to Level-8 of the ORSP Rules, 2017. However, the Petitioner cunningly without mentioning the specific office order number and by simply mentioning the date of the order issued by the Opposite Party No.3/District Education Officer, Cuttack deliberately and intentionally has not mentioned the office order number, which establishes the conduct and fairness of the Petitioner towards this Court. 14. He further submitted that admittedly, the Petitioner was appointed on 01.01.1987 as Assistant Teacher against a Trained Graduate post in the scale of pay meant for the post of Assistant Teacher (Trained Intermediate). As the Page 17 of 32 Petitioner was not having the B. Ed. Qualification, in terms of the ORSP Rules framed from time to time and lastly in the year 2017, his initial appointment into the entry grade post was treated as Assistant Teacher (Untrained) and as per the ORSP Rules, 2017, the said scale of pay is attached to the Level-8 of the entry grade. As per the ORSP Rules, 2017 for consideration of MACP at different stages, his entitlement is 1st MACP for Level-9, 2nd MACP for Level-10 and 3rd MACP for Level-11. Even on the basis of arithmetic calculation, the Petitioner's pay in Level-11 justified to be with effect from 01.01.2017, but the hands of the authorities are totally tight in view of the Judgment passed by the Tribunal in O.A. No.1668 of 2017 which was confirmed by this Court in W.P.(C) No.6698 of 2020 and not entertained by the Supreme Court of India in SLP (C) No.15573 of 2020 in which it has been directed to grant Grade Pay as per the financial upgradation with effect from 13.01.2018. In view of the aforesaid clarification, the office order No.3424 dated 10.03.2022 which is already available at Page-55 of the Writ Petition and part of Annexure-15 and it suffers from no illegality and infirmity. In fact, the same has been issued in strict conformity with the order passed by the Tribunal, this Court and Supreme Court of India, so also in term of the Page 18 of 32 Letter No.6363 dated 07.03.2022 issued by the Director, Secondary Education, Odisha. 15. He further submitted that though the present Writ Petition involves only grant of 3rd MACP, but for just reference of this Court, it may be reiterated that in the original application earlier filed by the Petitioner and allowed by the Tribunal, the solitary issue was involved therein for counting of the length of service for the purpose of RACP, in which the Petitioner had made a claim to count his entire period of service without applying 2:1 ratio, which was duly allowed by the Tribunal. However, with regard to the fixation of his pay, the requirement under the relevant pay fixation Rule that has been framed on the basis of recommendation of 7th Pay Commission, Government of India vide Notification No.72 (E) dated 25.07.2016 and in exercise of the proviso to Article 309 of the Constitution of India and the stipulation made therein cannot be violated by the authorities which clearly provides for mentioning the 1st appointment date. Therefore, the 1st appointment of the Petitioner was on 01.01.1987 in Trained Intermediate scale of pay to Level-8 of the ORSP Rules, 2017 which cannot be over-sighted by the State authorities. 16. It was further submitted that the Petitioner has made the Office Order No.3422 dated 10.03.2022 as a trump card in Page 19 of 32 his favour to submit that he has not been sanctioned with MACP thereby suppressing the office order No.3424 dated 10.03.2022 by virtue of which, he has been allowed 3rd MACP with effect from 13.01.2018 strictly in terms of the direction issued by the Tribunal in O.A. No.1668 of 2017, confirmed by this Court in W.P.(C) No.6698 of 2020 and not entertained by the Supreme Court of India in SLP (C) No.15573 of 2020. In such view of the matter, there being no illegality or irregularity in the impugned order passed by the Opposite Party No.3/District Education Officer, Cuttack, in strict compliance with the orders as indicated above. The present Writ Petition being devoid of merit is liable to be dismissed. 17. It was also submitted that in course of oral argument advanced on behalf of the Petitioner, reliance was placed on documents to justify his entry as Trained Graduate Teacher grade. Thereby relying on Rule-13 (xvi) of ORSP Rule, 2017, which provides that upgradation of post in a cadre was not to be considered as an upgradation under MACP. In reply to such argument, he submitted that moving from Trained Intermediate/ Untrained Graduate scale of pay to Trained Graduate scale of pay upon acquiring B.Ed. qualification cannot be treated as upgradation of post. Rather, the same be treated as upgradation of pay. It is further submitted that Page 20 of 32 the Supreme Court of India in case of Union of India and Anr. v. S.S. Ranade2 concluded that: “the use of word promotion do not necessarily lead to the conclusion that the promotion which is contemplated there is necessarily a promotion to a higher post. Promotion can be either to a higher pay scale or to a higher post”. In the present case, by moving from Trained Intermediate to Trained Graduate scale of pay is a clear case of promotion as per the law laid down by the Supreme Court of India in the case of S.S. Ranade (supra). He further submitted that the aforesaid view of the Supreme Court has duly been followed till now. 18. Further, in case of BSNL v. R. Santhakumari Velusamy3, it is held that: -
Legal Reasoning
“29. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge: (i) Promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both-that is, advancement to a higher position and advancement to a higher pay scale-are described term by "promotion", does not mean that they are the same. common the