The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.21773 & 22159 of 2023 Yudhistir Singh & Others …. Petitioners Mr. D.N. Rath, Advocate Mr. A.K. Pandey, Advocate (In W.P.(C) No.22159 of 2023) State of Odisha and Others -versus- …. Opposite Parties Mr. H.K. Panigrahi, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.07.2023 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. D.N. Rath along with Mr. A.K. Pandey, learned counsels appearing for the petitioners, Mr. H.K. Panigrahi, learned Addl. Standing Counsel along with Mr. S.K. Samal, learned Addl. Govt. Advocate for the State and Mr. Kali Prasanna Mishra, learned counsel appearing for the Intervenor Petitioner in W.P.(C) No.21773 of 2023. 3. Since both the Writ Petitions have been filed challenging the letter issued by the Opposite Party No.2 on 31.05.2023, both the matters were heard
Decision
analogously and disposed of by the present order. // 2 // 4. Learned counsels appearing for the parties contended that the service condition of Teachers and Officers of Elementary Education was governed as per the provisions contained under the Odisha Elementary Education (Methods of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 (in short Rules). The word 8Post9 is defined under Rule 2(f) of the aforesaid 1997 Rules. Rule 2 (f) of the Rules provides as follows:- Teachers, Graduate of <[<Post= means the posts of Assistant Teachers, Teachers] [Senior Headmasters/Headmistresses the Government Primary and upper primary Schools, [Senior Headmaster or Headmistress of Government Primary Schools as the case may be] Assistant Block Education Officers, Block Education Officers, [Senior Block Education Officer] and such other post as may be notified by Government from time to time]. = 4.1. Rule 11 of the Rules provides the eligibility criteria for promotion from different level in Elementary Education. Rule 11 of the Rules provides as under:- <11. Eligibility for promotion- [(1) in order to be eligible for promotion to the posts belonging Level- V(B) of the service, the candidate must have served for a continuous period of four years in the post belonging to Level-V(A) of the service. Provided that- (i) 50% of the vacancies shall be filled up by the candidates having passed High School Certificate (10+2) Examination or or Higher Secondary Teachers Graduation Secondary Training/Certified Teachers Course/Diploma in Elementary Education from any recognized Board or University or equivalent thereof and have passed Odisha Teacher Eligibility Test-I (for candidates engaged as Sikshya Sahayak for Junior Teacher with Page 2 of 14 // 3 // (Contractual) against the advertisement published after 11.02.2011) (ii) 50% of the vacancies shall be filled up by the candidates possessing a Bachelor Degree in any discipline with Secondary Teacher Training/Certified Teachers Course/Diploma in Elementary Education or Bachelor in Education or an equivalent examination and training course from a recognized Board or University and having passed Odisha Teachers Eligibility Test-II (for candidates engaged as Sikshya Sahayak or Junior Teacher (Contractual) against after the 11.02.2011).] advertisement published [(2) (i) In order to be eligible for promotion to the the post of Headmaster/Headmistress of in Level-IV of the Government Primary Schools service, candidate must have passed High School Certificate or Higher Secondary (+2) Examination or Teachers Graduation in Training/Certified Teachers Course/Diploma Elementary Education or Bachelor in Education and must have served for a continuous period of two years in the posts belonging to Level-V(B) of the service. Secondary with (ii) In order to be eligible for promotion to the post of Graduate Teachers in Government Upper the service, a in Level-IV of Primary Schools candidate must have possessed a Bachelor Degree in any discipline or an equivalent examination with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Elementary Education or a Bachelor in Education and must have served for a continuous period of two years in the posts belonging to Level-V(B) of the service: Provided that in case of non-availability of adequate number of persons for promotion to Level-IV of the service, six years of service in Level-V(A) and V(B) shall be taken together for consideration of promotion but must have rendered at least one year service in Level-V(B).] [3(i) In order to be eligible for promotion to the post of Senior Headmaster in Govt. Primary School in Level-III of the service, a candidate must have passed High School Certificate or Higher Secondary (+2) Examination or Bachelor Degree in any discipline with Secondary Teachers Training or Certified Page 3 of 14 // 4 // Teachers Course or Diploma in Elementary Education or Bachelor in Education or an equivalent examination and must have served for a continuous period of two years in the post of Headmaster of Government Primary School belonging to Level-IV of the service’. (ii) In order to be eligible for promotion to the post of Headmaster in Government Upper Primary School in Level-III of the service, a candidate must have obtained a Bachelor Degree in any discipline with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Elementary Education or Bachelor in Education or any equivalent examination and must have served for a continuous period of two years in the post of Graduate Teacher belonging to Level-IV of the service.] [(4) In order to be eligible for promotion to the post of Assistant Block Education Officer in Level-II of the service, a candidate must have possessed a Bachelor Degree in any discipline or an equivalent examination with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Elementary Education or a Bachelor in Education or any equivalent examination and must have served for a continuous period of two years in the post of Headmaster of Government Upper Primary School belonging to level-III of the service:] [(5) In order to be eligible for promotion to the post of Block Education Officer in Level-I of the service, a candidate must have possessed a Bachelor Degree in any discipline or an equivalent examination with a Bachelor in Education and must have served for a continuous period of two years in the post of Assistant Block Education Officer belonging to level-II of the service and must have minimum one year of service to be rendered prior to superannuation as on the 1st January of year of convening the Departmental Promotion Committee.] [(6) In order to be eligible for promotion to the post of Senior Block Education Officer or such other post in Level-I (Senior) of the service, a candidate must have served for a continuous period of two years in the post of Block Education Officer belonging to Level-I of the service.] = Page 4 of 14 // 5 // 4.2. It is contended that the aforesaid 1997 Rules was amended vide Notification dated 08.03.2019 issued by the Government in the Department of School & Mass Education and the said Rule was called as Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2019. In the amended rules original Rule 11 as per 1997 Rules was also amended to the following effect:- <7. In the said rules, in rule-11, - (a) for sub-rule (1), the following sub-rule shall be substituted, namely:- "(1) In order to be eligible for promotion to the posts belonging Level-V (B) of the service, the candidate must have served for a continuous period of four years in the posts belonging to Level-V(A) of the service. Provided that - (i) 50% of the vacancies shall be filled up by the candidates having passed High School Certificate or Higher Secondary (10+2) Examination or Graduation with Secondary Teachers Training/ Certified Teachers Course/Diploma in Elementary Education from any recognized Board or University or equivalent thereof and have passed Odisha Teachers Eligibility Test-l (for candidates engaged as Sikshya Sahayak or Junior Teacher the advertisement published after 11 .02.2011). (Contractual) against (ii) 50% of the vacancies shall be filled up by the candidates possessing a Bachelor Degree in any discipline with Secondary Teachers Training/ Certified Teachers Course/ Diploma in Elementary Education or Bachelor in Education or an equivalent examination and training course from a recognized Board or University and having passed Odisha Teachers Eligibility Test-II (for candidates engaged as Sikshya Sahayak or Junior the advertisement Teacher published after 1 1 .02.201 1)." (Contractual) against Page 5 of 14 // 6 // (b) for sub rule (2), the following sub-rule shall be substituted, namely:- "(2) (i) ln order to be eligible for promotion to the post of Headmaster/Headmistress of the Government Primary Schools in Level-IV of the service, candidate must have passed High School Certificate or Higher Secondary (+2) Examination or Graduation with Secondary Teachers’ Training/ Certified Teachers Course/ Diploma in Elementary Education or Bachelor in Education and must have served for a continuous period of two years in the posts belonging to Level-V(B) of the service. (ii) In order to be eligible for promotion to the post of in Government Upper Primary Graduate Teachers schools in Lever-IV of the service, a candidate must have possessed a Bachelor Degree in any discipline or an equivalent examination with Secondary Teachers’ Training or certified Teachers Course or Diploma in Elementary Education or a Bachelor in Education and must have served for a continuous period of two years in the posts belonging to Level-V(B) of the service: Provided that in case of non-availability of adequate number of persons for promotion to Level-IV of the service, six years of service in Level-V(A) and V(B) shall be taken together for consideration of promotion but must have rendered at least one year service in Level-V (B)." (c) for sub-rule (3), the following sub-rule shall be substituted, namely:- <(3)(i) ln order to be eligible for promotion to the post of Senior Headmaster in Govt. Primary School in Level-III of the service, a candidate must have passed High School Certificate or Higher Secondary (+2) Examination or Bachelor Degree in any discipline with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Education or an equivalent examination and must have served for a continuous period of two years in the post of Headmaster of Government Primary School belonging to Level-IV of the service,,. in Elementary Education or Bachelor (ii) In order to be eligible for promotion to the post of Headmaster in Government Upper Primary School in Level-III of the service, a candidate must have obtained a Bachelor Degree in any discipline with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Education or any equivalent examination and must in Elementary Education or Bachelor Page 6 of 14 // 7 // have served for a continuous period of two years in the post of Graduate Teacher belonging to Level-IV of the service". (d) for sub-rule (4), the following sub-rule shall be substituted, namely:- "(4) In order to be eligible for promotion to the post of Assistant Block Education Officer in Level-II of the service, a candidate must have possessed a Bachelor Degree in any discipline or an equivalent examination with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Elementary Education or a Bachelor in Education or any equivalent examination and must have served for a continuous period of two years in the post of Headmaster of Government Upper Primary School belonging to level-III of the service: (e) for sub-rule (4-a) shall be deleted. (f) for sub-rule (5), the following sub-rule shall be substituted, namely:- "(5) ln order to be eligible for promotion to the post of Block Education Officer in Level-l of the service, a candidate must have possessed a Bachelor Degree in any discipline or an equivalent examination with a Bachelor in Education and must have served a continuous period of two years in the post of Assistant Block Education Officer belonging to level-II of the service and must have minimum one year of service to be rendered prior to superannuation as on the 1st January of year of convening the Departmental Promotion Committee. for (g) after sub-rule (5), the following sub-rule shall be inserted, namely:- "(6) ln order to be eligible for promotion to the post of Senior Block Education Officer or such other post in Level-I (Senior) of the service, a candidate must have served for a continuous period of two years in the post of Block Education Officer belonging to Level-l of the service". 8. ln the said rules, in rule 15 (a) in sub-rule (1), in clause (a) "for the words and expression Level-V, Level-IV and Level-III, the words and expression "Level-V(A), Level-V(B), Level-IV and Level-III shall be substituted", Page 7 of 14 // 8 // (b) in sub-rule (1), for clause (d), the following clauses shall be substituted, namely:- <(d) (1) Separate Gradation list of Assistant Teachers in Level-V(A) of the service shall be prepared taking into consideration the following qualification and training. (i) High School Certificate or Higher Secondary $2) Examination or Bachelor Degree in any discipline or equivalent examination with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Elementary Education and pass in Odisha Teachers Eligibility Test-I. (ii) Bachelor Degree in any discipline or an equivalent examination with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Elementary Education or Bachelor in Education and pass in Odisha Teachers Eligibility Test -ll.= 4.3. It is contended that though the criteria for promotion in different level in the Elementary Education of the State is governed by the 1997 Rules so amended by the 2019 Rules, but on the face of such provision contained under the aforesaid Rules, which were framed in terms of the provisions contained under Art. 309 of the Constitution of India, Opposite Party No.2 when issued a clarification regarding promotion of Teachers and Headmasters in different level on 06.05.2023, the said clarification was challenged before this Court in different Writ Petitions. Not only that the clarification issued by the Opposite Party No.2 on 06.05.2023 was subsequently modified with issuance of a Corrigendum on 15.05.2023. But the corrigendum issued by the Opposite Party No.2 on 15.05.2023 was withdrawn vide letter dated 31.05.2023. Page 8 of 14 // 9 // 4.4. It is contended that the clarification issued by the Opposite Party No.2 on 06.05.2023 when was challenged before this Court in different Writ Petitions and this Court while issuing notice of the matter passed an interim order staying its operation, Opposite Party No.2 vide his letter No.15940 dated 15.07.2023 withdraw the clarification issued on 06.05.2023. While withdrawing the clarification issued on 06.05.2023 vide letter dated 15.07.2023, Opposite Party No.2 clearly held that while submitting the proposal for promotion of Elementary Teachers to Higher Level, the Principle/Guideline issued by the Government and stipulated in Odisha Elementary Education Methods of Recruitment etc. Rules 1997 and subsequent amendment carried out shall be followed scrupulously. 4.5. It is contended by the learned counsel for the Petitioner that even though the clarification issued by the Opposite Party No.2 on 06.05.2023 and corrigendum issued by the self-same Opposite Party No.2 on 15.05.2023 were withdrawn vide letter dated 31.05.2023 and letter dated 15.07.2023 respectively, but taking advantages of such clarifications issued by the Opposite Party No.2 on 06.05.2023, steps were taken by the District Education Officers and Block Education Officers of different education district to give promotion to Elementary Teachers of different level in Page 9 of 14 // 10 // different Districts and Blocks of the State. Not only that basing on the letter issued by the Opposite Party No.2 and prior to withdrawing the clarification dated 06.05.2023 vide letter dated 15.07.2023, District Education Officers of different Education District of the State have prepared the gradation list of Elementary Teachers in different level for their promotion to the next level. 4.6. In view of such conflicting stand adopted by District Education Officers and Block Education Officers of the State, there is a hue and cry amongst Primary School Teachers working in different levels. Learned counsel for the petitioner accordingly contended that taking into account the prevailing scenario and the conflicting method adopted by the District Education Officers of the State with regard to the preparation of gradation list of elementary teachers in different level, necessary directions be issued to the Opposite Party No.2 to issue a fresh clarification and with a direction on the District Education Officers of the State to prepare the Gradation List of Elementary Cadre Teachers in different level in terms of the 1997 Rules, so amended vide the 2019 Amended Rules. After preparation of such gradation list with due approval steps be taken to extend the benefit of promotion to Page 10 of 14 // 11 // elementary teachers in terms of the 1997 Rules read with Amended Rules, 2019. 5. Mr. S.K. Samal, learned Addl. Govt. Advocate along with Mr. H.K. Panigrahi, learned Addl. Standing Counsel fairly contended that criteria for promotion of Elementary Cadre Teachers though is governed as per the provisions contained under the 1997 Rules read with the Amended Rules, 2019 but because of the clarification issued by the Director on 06.05.2023 and the Corrigendum issued on 15.05.2023, difficulty has arisen with regard to preparation of Gradation List of Elementary Cadre Teacher in the State and consequential extension of the benefit of promotion. 5.1. Learned counsels appearing for the State also accepted the submission made by the learned counsel for the petitioner with regard to issuance of a fresh clarification by Opposite Party No.2 with regard to the course of action to be followed by the District Education Officers and Block Education Officers with regard to preparation of gradation list and extension of benefit of promotion in favour of Elementary Cadre Teachers of the State in different level. 6. Having heard learned counsels appearing for the parties and taking into account the submissions made, this Court finds that the criteria for promotion of Page 11 of 14 // 12 // Elementary Cadre Teachers in the State is governed by the provisions contained under the 1997 Rules read with the Amended Rules, 2019. It is found that because of the clarification issued by the Opposite Party No.2 on 06.05.2023 and Corrigendum issued by the said Opposite Party No.2 on 15.05.2023 (though both the clarification and corrigendum have been withdrawn in the meantime) there is divergent views of District Education Officers and Block Education Officers of the State with regard to the preparation Gradation List of Elementary Cadre Teachers in the State for the purpose of extending the benefit of promotion in their favour. On the face of withdrawal of the clarification issued by the Opposite party No.2 on 06.05.2023 and 15.05.2023, while some of the District Education Officers and Block Education Officers have prepared the Gradation List in terms of the clarification and by taking steps to extend the benefit of promotion, some of the District Education Officers and Block Education Officers have prepared the list in accordance with the 1997 Rules read with Amended Rules, 2019. Because of such different standard maintained by the District Education Officers and Block Education Officers of the State a number of writ petitions are being filed by the affected Elementary Cadre Teachers of the State. Page 12 of 14 // 13 // 7. In order to have an uniform policy with regard to preparation of gradation list of elementary cadre teachers of the State and consequential extension of promotion in different level, this Court while disposing both the Writ Petitions directs Opposite party No.2 to issue a fresh clarification/guideline within a period of 2 (two) weeks from the date of receipt of this order. Opposite Party No.2 is directed to give clear instruction to all the District Education Officers and Block Education Officers of the State to prepare the Gradation List of the Elementary Cadre Teachers strictly in terms of the provisions contained under 1997 Rules read with the amended Rules, 2019. The District Education Officers and Block Education Officers be also directed to prepare Gradation List of Elementary Cadre Teachers within a period of 1 (one) month from the date of receipt of such clarification/guideline and finalize the same in accordance with law with due approval of Opposite Party No.2. Only after finalization of the gradation list of elementary cadre teacher steps be taken to extend the benefit of promotion. 7.1. It is however observed that till the aforesaid directions is implemented, District Education Officers and Block Education Officers of the State are not to Page 13 of 14 // 14 // extend the benefit of promotion in favour of the Elementary Cadre Teachers of the State. 8. Both the Writ Petitions are accordingly disposed of with the aforesaid observations and directions. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 01-Aug-2023 17:00:51 Page 14 of 14