The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) Nos.1365 of 2010 & 241 of 2006 In the matter of an application under Section 19 of the Administrative Tribunal Act, 1985. ……………… WPC(OAC) No.1365 of 2010 Bijaya Laxmi Panigrahy & Another …. Petitioners -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s.P. Nayak. For Opp. Parties : Addl. Government Advocate Mr.S.K. Samal, AGA Mr. S.B. Jena, Adv. for O.P.4 WPC(OAC) No.241 of 2006 P. Daleya Reddy …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s.S.B. Jena, S. Behera & J.K. Swain. For Opp. Parties : Addl. Government Advocate Mr.S.K. Samal, AGA. Mr. P. Nayak, Adv. for O.P.4 PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:31.07.2023 and Date of Judgment:22.09.2023 -------------------------------------------------------------------------------- // 2 // Biraja Prasanna Satapathy, J. 1. Since both the Writ Petitions have been filed seeking a direction on the Opposite Parties to grant Trained Graduate scale of pay from the date of acquisition of the B.Ed. qualification and there is rival claim with regard to such sanction of TGT scale of pay, both the Writ Petitions were heard analogously and disposed of vide the present common order. 2. W.P.(C) (OAC) No.1365 of 2010 has been filed inter alia with the following prayer:- “Under the circumstances it is humbly prayed that this Hon’ble Court may be graciously pleased to direct the respondent No.2 to take necessary steps allowing Trained Graduate Scale with effect from 16.11.83. And the recommendation made under Annexure-5 by the respondent No.3 for grant of I.G.T. Scale in favour of the respondent No.4 be quashed. And grant all service benefits to the applicant including arrears from 16.11.83; And pass any other order/ orders as this Hon’ble Tribunal deems fit and proper in this case; And allow this Original Application with cost”. 3. Similarly, W.P.(C) (OAC) No.241 of 2006 has been filed inter alia with the following prayer:- “ Under the circumstances, it is humbly prayed that this Hon’ble Tribunal may be graciously pleased to quash the order of promotion under Annexure-8 Page 2 of 20 // 3 // And further be pleased to consider the case of the petitioner for promotion to Junior SES cadre from the date his junior eg. Opp.Party No.4 has been promoted to such posts; And also further be pleased to direct the authorities to pay the petitioner all financial benefits consequential retrospectively within a time schedule; And also further be pleased to direct the Opp.Party No.2 to take necessary steps for allowing Trained Graduate Scale of pay with effect from 2.5.88 in favour of the petitioner based on the recommendations made on 29.12.05 under Annexure-7 And pass any other order/orders as this Hon’ble Tribunal deems fit and proper in this case”. 4. It is the case of the Petitioner in W.P.(C) (OAC) No. 1365 of 2010 hereinafter called as the ‘2010 application’ that the Petitioner was appointed as an Asst. Teacher as against the Matric C.T. post in Narendrapur High School and he was fitted as against Class-VIII(c) vide order dated 21.08.1978. The Petitioner in W.P.(C)(OAC) No.241 of 2006 hereinafter called as the ‘2006 application’ was appointed also as an Asst. Teacher as against the Matric C.T. Post in Narendrapur High School vide order dated 17.11.1978 and he was fitted as against Class-VII(B). While the Petitioner of the 2006 application has been arrayed as Opposite Party No.4 by the Petitioner in the 2010 application, Petitioner in 2010 application has been arrayed as Opposite Party No.4 in the 2006 application. Page 3 of 20 // 4 // 4.1. It is the further case of the Petitioner in the 2010 application that while continuing as an Asst. Teacher against a Matric C.T. post w.e.f. from his date of joining, he passed the B.Ed on 16.11.1983. Similarly Petitioner in the 2006 application acquired the B.Ed. qualification on 14.09.1982. While the matter stood thus and prior to acquisition of such B.Ed. qualification, basing on the yardstick prescribed by the Government on 08.07.1981 and the direction of Opposite Party No.1 to implement the yardstick w.e.f. 01.06.1983, Opposite Party No.2 sanctioned the posts of Addl. Section Teacher in respect of Class-VI, VII, VIII & IX in Narendrapur High School. 4.2. While as against Addl. Section in Class-IX(B), one TGT post was sanctioned vide order dated 30.06.1982, two Trained Intermediate posts were sanctioned as against Class-VIII(C) and VIII(B). Not only that Government vide circular dtd.18.06.1983 also clarified that untrained graduates working against the TGT post, shall be eligible to get Higher Scale of pay without prior approval of the Government when they acquire B.Ed. qualification. The order dated 30.06.1982 was communicated to the Headmaster of the School vide letter dated 21.09.1983 under Annexure-2. But in the meantime Opposite Party Page 4 of 20 // 5 // No.3 vide his letter dated 15.10.1991 requested the Headmasters of Non-Govt. High School to implement the revised yardstick so published by the Government on 08.07.1981. Basing on such request made by Opposite Party No.3 on 15.10.1991, the Managing Committee of Narendrapur High School following the provisions contained under Rule-8(2)(B) of the Orissa Education Recruitment Etc. & Conditions of Service) Rules, 1974 promoted the Petitioner of the 2010 application to the post of Trained Graduate Teacher as against Class- VIII(C) and the Petitioner of the 2006 application against an Addl. Sections, which was not sanctioned by the Government. 4.3. On receipt of the proposal from the School, Opposite Party No.3 vide his letter dated 23.05.1992 under Annexure-3-Series prepared the entitlement of the Petitioner of the 2010 application towards Trained Graduate Scale and Trained Intermediate Scale and calculated the arrear amount payable to the Petitioner up to 31.03.1991. But in the meantime since the School in question was taken over by the Government w.e.f 07.06.1994, no further action could be taken on the same. But after such taken over of the School, Government vide G.O. No.12386 / SMS dtd.27.4.1995 under Annexure-4 Page 5 of 20 // 6 // sanctioned 309 posts of Trained Graduate and Trained Intermediate post with regard to Ganjam Circle, Berhampur. Sanction was accorded to upgrade 12 posts in different Schools from Trained Matric to Trained Intermediate and 72 posts from Trained Intermediate to Trained Graduate. In respect of the Petitioners’ school, 1 post was upgraded to Trained Intermediate and 2 posts to Trained Graduate. 4.4. On receipt of the letter dated 27.04.1995, the Headmaster of the School vide his letter dated 12.11.1995 recommended the name of the Petitioner of the 2010 application to adjust him as against Trained Intermediate post and also sought for clarification with regard to sanction of Trained Graduate Scale. On the face of such letter issued by the Headmaster on 12.11.1995, Opposite Party No.3 while seeking certain clarification vide order dated 07.12.1995 under Annexure-5 indicated that Opposite Party No.4/Petitioner in the 2006 application since had acquired the B. Ed qualification earlier than the Petitioner of the 2010 application, requested the Headmaster of the School to clarify the position keeping in view the guidelines issued by the Government on 27.04.1995 vide Annexure-4. Page 6 of 20 // 7 // 4.5. The Petitioner of the 2010 application being aggrieved by sought clarification sought by Opposite Party No.3, vide
Facts
order dtd.07.12.1995 challenged the same before the Tribunal in O.A. No. 87(B) of 1996. The Tribunal vide its order dated 06.08.2000, while disposing the matter though directed Opposite Party No.2-Director Secondary Education to take a decision on the claim of the Petitioner of the 2010 application as made in Annexure-9 within a period of three months from the date of receipt of this order, but clearly held that the Petitioner of the 2010 application is not entitled to get the benefit of Trained Graduate Scale w.e.f. 16.11.1983 and disallowed such claim of the Petitioner. 4.6. The Petitioner of 2010 application being aggrieved by order dtd.06.08.2000, approached this Court in OJC No.9980/2001. This Court while issuing notice of the matter vide order dated 24.06.2002, passed an interim order in Misc. Case No.13676/2001 by directing that Trained Graduate Scale of pay will not be sanctioned either in favour of the Petitioner of the 2010 application or in favour of the Petitioner of the 2006 application. The interim order passed by this Court on 24.06.2002 continued till the matter was ultimately disposed of vide order dated 22.03.2010. This Court while disposing the matter held Page 7 of 20 // 8 // that the order passed by the Tribunal on 06.03.2000 is contrary to the ratio decided by this Court in the case of Rama Panigrahi vs. State of Orissa, reported in 2003(I)OLR-438. While holding so, this Court disposes of the matter by granting liberty to the Petitioner of 2010 application to work out his remedy either before the Director, Secondary Education or approach the Tribunal as the case may be. Pursuant to such liberty granted by this Court in its order dated 23.03.2010, the 2010 application was filed by the Petitioner with the prayer as indicated hereinabove. However, during pendency of the matter since the Original Petitioner died, his legal heirs have been substituted as Petitioner No.1(a) and 1(b). 4.7. Similarly, 2006 application was filed by the Petitioner challenging the Office order dated 30.09.2005 so issued by Opposite Party No.3 in promoting the Petitioner of the 2010 application from LSES cadre to Junior SES cadre ahead of the Petitioner and with a further prayer to direct Opposite Party No.2 to take necessary step on the recommendation made by Opposite Party No.3 in his favour on 29.12.2005 under Annexure-7. Page 8 of 20 // 9 // 4.8. It is the case of the Petitioner of the 2006 application that he was appointed against the vacant post of Matric, CT in Narendrapur High School on 17.11.1978. The School was taken over by the Government w.e.f. 07.06.1994. But prior to such taken over, the staffing pattern of the School was one headmaster, four Trained Graduate Teachers in Science and Arts, two I.ACT post, six Matric C.T. post, one Classical Teacher, one Hindi Teacher and one P.E.T. After taken over the School w.e.f. 07.06.1994 and pursuant to G.O. No.12386/SMS dtd.27.4.1995 under Annexure-4, 309 posts of Trained Intermediate and Trained Graduates were upgraded w.e.f. 01.06.1983. Out of such up-gradation of 309 posts, Petitioners’ School was permitted up-gradation of one post from Trained Matric to Trained Intermediate and two posts from Trained Intermediate to Trained Graduate. Pursuant to Government order dtd.27.04.1995, the Petitioner of the 2006 application, who had acquired the B.Ed. on 14.09.1982 was promoted from the post of Trained Matric to Trained Intermediate for the period from 01.06.1983 to 01.05.1988 and allowed the benefit of Trained Graduate scale w.e.f. 02.05.1988. 4.9. In the meantime basing on such sanction and up gradation of Trained Matric and Trained Intermediate post Page 9 of 20 // 10 // vide order dated 27.04.1995, the Headmaster of the School vide his letter dtd.12.11.1995 recommended the name of one Antaryami Patra and the Petitioner of the 2010 application by fitting them against two upgraded trained graduate posts w.e.f. 01.06.1983 and 01.06.1984 respectively. The Petitioner of the 2006 application was fitted as against one upgraded T.I. Post w.e.f. 01.06.1984. But the recommendation of the Headmaster, was not accepted by Opposite Party No.3 and while holding so, vide letter dtd.07.12.1995, Opposite Party No.3 clearly held that adjustment of the Petitioners of both the cases are not in terms of the guidelines issued by the Government on 27.04.1995. 4.9. On receipt of the letter dated 07.12.1995 under Annexure-1 to the 2006 application, Headmaster of the School vide his letter dtd.15.12.1995 under Annexure-2 submitted a revised proposal by recommending up gradation of the Petitioner of the 2006 application as against Trained Graduate Teacher w.e.f. 14.09.1982 and in respect of other Petitioner w.e.f. 16.11.1983. But vide letter dated 19.02.1996 under Annexure-3 when Opposite Party No.3 again raised objection, required clarification was made by the Headmaster vide letter dated 26.02.1996 under Page 10 of 20 // 11 // Annexure-4. After series of correspondences between the Headmaster and Opposite Party No.3, Opposite Party No.3 vide his order dtd.04.05.1996 fitted one Antaryami Patra
Legal Reasoning
application approached this Court in OJC No.9980 of 2001, this Court while issuing notice of the matter on 24.06.2002 passed an interim order by directing that neither of the Petitioners in both the cases will be sanctioned with TGT scale of pay. Because of such order passed by this Court on 24.06.2002 neither of the Petitioners were extended with the benefit of Trained Graduate Scale of pay from the date of their respective claim. Page 13 of 20 // 14 // 5.2. The Writ Petition in OJC No.9980 of 2001 was
Arguments
and late Sri Satyabadi Sahu against two up gradated TGT posts w.e.f. 01.06.1983 and 01.08.1985 respectively. As Sri Satyabadi Sahu died on 01.05.1983, the Petitioner of the 2006 application was fitted against the upgraded TI post from 01.06.1983 to 01.05.1988 and against the upgraded TGT posts w.e.f. 02.05.1988, as he had passed the B.Ed. on 14.09.1982. 4.10. It is contended that the Petitioner of the 2010 application challenging the recommendation made by the Headmaster in favour of the Petitioner of the 2006 application approached the Tribunal in O.A. No.87(B) of 1996. But vide order dtd.06.03.2000 under Annexure-5, the claim of the Petitioner of the 2010 application to get the benefit of TGT scale w.e.f. 16.11.1983 was disallowed. Being aggrieved by such order, OJC No.9980/2001 was filed before this Court and this Court while issuing notice of the matter passed an interim order on 24.06.2002 by directing that neither of the Petitioner in both the applications will get the benefit of TGT scale of pay vide Annexure-6. During pendency of the matter before this Page 11 of 20 // 12 // Court when vide order dtd.30.09.2005, the Petitioner of the 2010 application was promoted from LSES cadre to Junior SES cadre by allowing Trained Graduate Scale of pay in his favour, the matter was challenged by the Petitioner of the 2006 application. Prayer has also been made to act upon the recommendation of the Opposite Party No.3 so made in favour of the Petitioner of the 2006 application on 29.12.2005 under Annexure-7. 5. Mr. S.K. Samal, learned Addl. Government Advocate for the State taking into account the rival claim raised by both the Petitioners made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.3. It is contended that the Petitioner of the 2010 application was appointed as an Asst. Teacher on 21.08.1978 as a Science Teacher against Class-VIII(C) by the Managing Committee of Narendrapur High School and his services was regularized w.e.f. from the date of entry in service. 5.1. It is contended that the Petitioner of the 2010 application was appointed as against as Class-VIII(B)/VII(C) for temporary period of six months by the then Managing Committee of Narendrapur High School against Trained Page 12 of 20 // 13 // Matric post on 16.11.1978. Since by the time the School was taken over w.e.f. 07.06.1994, the services of the Petitioner of the 2010 application was not approved, his services were approved as against the Matric C.T post. But in the meantime when recommendation was made in favour of the Petitioner of the other case by Opposite Party No.3 vide his letter dtd.07.12.1995, the matter was challenged by the Petitioner of 2010 application before the Tribunal in O.A No.87(B)/1996. The said Original Application was disposed of by the Tribunal vide order dated 06.08.2000. But while disposing the matter, the Tribunal clearly held that the Petitioner of the 2010 application is not entitled to get the benefit of Trained Graduate scale w.e.f. 16.11.1983. Challenging such order passed by the Tribunal on 06.08.2000 when the Petitioner of the 2010
Decision
ultimately disposed of vide order dated 23.03.2000. In the said order, this Court held that the order passed by the Tribunal on 06.08.2000 is contrary to the ratio decided in the case of Rama Panigrahi vs. State of Orissa, reported in 2003(I)OLR-438. This Court accordingly while disposing the matter granted liberty to the Petitioner of the 2010 application to work out his remedy. Pursuant to the order dtd.23.03.2010, the 2010 application has been filed by the Petitioner. 5.3. It is further contended that during pendency of the matter before this Court in OJC No.9980 of 2001 and subsequent to taken over of the School w.e.f. 07.06.1994, the gradation list was published by Opposite Party No.3 in the cadre of LSES. In the said gradation list so published in respect of LSES cadre in the year 2004, the Petitioner of the 2010 application was placed at Sl. No.70 and the Petitioner of the 2006 application was placed at Sl. No.74. In the eligibility list published, subsequently showing the eligibility to get the benefit of promotion from LSES cadre to Junior SES cadre, the Petitioner of 2010 application was placed at Sl. No.762 and the Petitioner of the 2006 application was placed at Sl. No.804. Page 14 of 20 // 15 // 5.4. It is contended that neither of the Petitioner in both the cases have ever challenged their placement in the gradation list of LSES cadre so published in the year 2004, wherein the Petitioner of the 2010 application was placed above the Petitioner of the 2006 application. Basing on such placement in the gradation list in LSES cadre, the Petitioner of the 2010 application was given the benefit of promotion to Junior SES cadre vide order dated 30.09.2005. Similarly taking into account the placement of the Petitioner of the 2006 application, he was extended with the benefit of promotion to Junior SES cadre vide office order dtd.13.06.2006. 5.5. Learned Addl. Government Advocate for the State accordingly contended that since after taken over of the School w.e.f. 07.06.1994, the services of both the Teachers were approved as against the Matric CT post which is in the rank of LSES cadre, in the gradation list published in the year 2004, the Petitioner of the 2010 application was placed at Sl. No.70 and the Petitioner of 2006 application was placed at Sl. No.74. Similarly in the eligibility list so published, the Petitioner of the 2010 application was placed at Sl. No.762 and the other Petitioner was placed at Sl. No.804. Since the gradation list of LSES cadre so Page 15 of 20 // 16 // published in the year 2004 was never assailed by any of the Petitioners and basing on that position in the gradation list, the Petitioner of the 2010 application was promoted to the rank of Junior SES vide order dated 30.09.2005 and other Petitioners vide order dtd.13.06.2006, the claim of the Petitioner to get the benefit of TGT scale from the date of passing of their B.Ed. examination is not sustainable in the eye of law. 5.6. It is also contended that during pendency of the matter while the Petitioner in the 2010 application died and his legal heirs have been substituted, the Petitioner in 2006 application has also retired after availing the benefit of promotion to Junior SES cadre so extended in his favour vide order dtd.13.06.2006. It is accordingly contended that the prayer made in both the writ petitions are completely misconceived and not entertainable 6. I have heard Ms.P. Nayak, learned counsel for the Petitioner in the 2010 application and Mr. S. Behera, learned counsel appearing for the Petitioner in the 2006 application and Mr. S.K. Samal, learned Addl. Government Advocate appearing for the Opposite Parties in both the Page 16 of 20 // 17 // cases. On their consent, these matters were taken up for final disposal at the stage of admission. 7. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner of the 2010 application was appointed vide order dated 21.08.1978 as against the Trained Matric Post and the Petitioner of the 2006 application was appointed vide order dated 17.11.1978 also against a Matric CT post. Both the Petitioners while so continuing passed the B.Ed. on 16.11.1983 and 14.09.1982 respectively. Basing on the Government order issued on 27.04.1995 though Opposite Party No.3 as found from the record in both the cases, made recommendation in faovur of both the Petitioners, but the Petitioner of 2010 application challenging the recommendation made by Opposite Party No.3 on 07.12.1995 in favour of the Petitioner of the 2006 application, approached the Tribunal in O.A No.87(B) of 1996. While challenging the recommendation in favour of other Petitioners, the Petitioner of the 2010 application also prays for a direction to extend the benefit of TGT scale w.e.f. 16.11.1983 i.e. the date on which he acquired the B.Ed. The Tribunal while disposing the matter vide order dtd.06.08.2000, clearly held Page 17 of 20 // 18 // that the Petitioners of the 2010 application is not entitled to get the benefit of TGT scale w.e.f. 16.11.1983. The said order though was challenged before this Court in OJC No.9980/2001 and this Court passed an interim order on 24.06.2002 by directing not to sanction TGT scale of pay in favour of either of the Petitioners, but while disposing the matter ultimately vide order dtd.23.03.2010, this Court did not interfere with the order passed by the Tribunal. But while disposing the matter liberty was granted to the Petitioner of the 2010 application to work out his remedy. In terms of the order so passed by this Court on 23.03.2010, 2010 application was filed by the deceased- Petitioner namely Surya Narayan Panigrahi. 7.1. During pendency of the matter before this Court in OJC NO.9980/2001 and taking into account the fact that both the Petitioners were in the LSES cadre having holding the post of Trained Matric CT, gradation list of LSES cadre was published in the year 2004. In the said gradation list, the deceased-Petitioner of the 2010 application was placed at Sl. No.70 and the Petitioner of the 2006 application was placed at Sl.No.74. In the eligibility list so published, the Petitioner of the 2010 application was placed at Sl.No. 762 and other Petitioner was placed at Sl. No. 864. It is found from the record that the gradation list so published in LSES Page 18 of 20 // 19 // cadre in the year 2004 has never been assailed by either of the Petitioners. Not only that basing on the placement in the said gradation list in LSES cadre, the Petitioner of the 2010 application was promoted to the rank of Junior SES and thereby entitling him to get the benefit of TGT scale vide order dtd.30.09.2005. Similarly, the Petitioner of the 2006 application was extended with the benefit of promotion to Junior SES and thereby entitling him to get the benefit of TGT scale of pay vide order dtd.13.06.2006. Since the gradation list so published by the Department in LSES cadre in the year 2004 with the above placement was never assailed by either of the Petitioners and both of them have got the benefit of promotion to Junior SES cadre vide order dtd.30.09.2005 and 13.06.2006 and thereby making them entitled to get the benefit of Trained Graduate Scale, the claim made by the Petitioner to get the benefit of TGT scale from the date of their acquiring B.Ed. qualification with other challenges as made, as per the considered view of this Court are not at all entertainable. Page 19 of 20 // 20 // 8. Accordingly, while holding so, this Court dismisses both the Writ Petitions. However, there shall be no order as to costs. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 22nd of September, 2023/Subrat (Sr. Steno) Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Jan-2024 15:50:29 Page 20 of 20