The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.416 of 2016 along with WPC(OAC) Nos.417, 1884 and 1967 of 2016 (In the matters of applications under Articles 226 and 227 of the Constitution of India, 1950) …. Petitioner(s) Aruna Kumar Naik & Ors. (in WPC (OAC) No.416 of 2016) Bishnu Naik & Ors. (in WPC (OAC) No.417 of 2016) Bishnu Naik & Ors. (in WPC (OAC) No.1884 of 2016) And Jayadev Pradhan & Ors. (in WPC(OAC) No.1967 of 2016) -versus- State of Odisha & Ors. (in all these Writ Petitions) …. Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. Sameer Kumar Das, Adv. Mr. Debasish Nayak, AGA Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 1 of 15 CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-29.11.2023 DATE OF JUDGMENT: -22.12.2023 Dr. S.K. Panigrahi, J. 1. Since common question of facts and law are involved in all these Writ Petitions, the same were heard together and are being disposed of by this common judgment. However, this Court felt it apposite to deal the WPC (OAC) No.416 of 2016 as the leading case for proper adjudication of all these cases.
Legal Reasoning
2. The Petitioners through WPC (OAC) No.416 of 2016 has challenged the order no.4950 dated 30.11.2015 of the Opposite Party no.3 and pray for a direction to the Opposite Parties to grant all consequential service and financial benefits. I. CASE OF THE PETITIONER: 3. The petitioners are the schedule caste persons started their service as an Education Volunteer under the EGS scheme. The State Government in a resolution dated 16.2.2008 while abolishing the EGS scheme directed for engagement for all those EVs as Gana Sikshyak. Accordingly, all the petitioners have been engaged as Gana Sikshyak on 16.6.2008. 4. In course of employment as Gana Sikshyak, the petitioners have undergone CT training as in-service candidates and became CT trained. The State Government has taken a policy decision in resolution dated 4.12.2013 to regularise the GS as Zilla Parishad Signature Not Verified Teacher (ZPT) under the Sarva Sikshya Abhiyan scheme of OPEPA. Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 2 of 15 But this GS are to work in the Government primary schools along with the Government primary school teachers. 5. Clause-7 of the resolution dated 4.12.2013 clearly provides that the SC/PH Gana Sikshyak on completion of 6 years of service are to be regularized as ZPT. As such the petitioners who are SC candidates and have completed 6 years of service were regularized along with others vide the order no.5763 dated 19.8.2014 of the Collector cum CEO, Zilla Parishad Ganjam w.e.f. 16.6.2014. The aforesaid order of the Collector, Ganjam clearly provides that the service condition of the ZP teacher shall be as per the Government resolution but they will be paid regular salary of at par with Government primary school teacher in the Level-V service. 6. Since the SC Gana Sikshyak have been regularized, the SEBC and UR Gana Sikshyaks challenged the Government order dated 4.12.2013 before this Court in different writ petitions which were disposed of with a direction to approach the Government. The Government on consideration of the fact passed order no.8130 dated 27.4.2015 holding inter- alia that the Government Order dated 4.12.2013 is valid and it has to be followed with regard to regularisation of SC Gana Sikshyaks. Since the Government order dated 4.12.2013 was under challenged and the order was pending in the Government for consideration, the concerned Zilla Parishad did not release the salary of those ZPTS. 7. However, it released later on by the order of the Collector. The DPC in letter no.3591 dated 22.8.2015 reported to the Government that the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 3 of 15 concerned BEO’s of the district have been disbursing the salary to the regular SC and PH Zilla Parishad teachers from the available allotment. 8. While the petitioners were so continuing and enjoining the benefit of regular Zilla Parishad teacher the State Government for the reason best known in letter no.19325 dated 14.9.2015 directed all the Collector-cum-CEO, Zilla Parishad and DPCs for different district of the State not to take any final decision and regularise the Gana Sikshyaks under their administrative control in pursuance to the Government resolution dated 4.12.2013. 9. In the aforesaid case some of the Gana Sikshyak under the general category have challenged Clause 7 of the Government resolution dated 4.12.2013 where in direction was issued to regularise the SC and ST Gana Sikshyaks on completion of 6 years of service. At the outset, it is submitted that since by the order of the High Court the state government has already passed order in this regard. Further, the case relating to ZPT or GS is not maintainable in the Tribunal as they are not holding civil post. Furthermore the SC and ST candidates enjoy the special right under Article 15 of the Constitution of India. Therefore, the finding of the Tribunal that the general category candidates and SC and ST candidates are to be treated equally was perverse and nonest in the eye of law. Hence, the order of the Tribunal is abinitio void for the reason that an order without jurisdiction is a nullity in the eye of law. Be that as it may, the Tribunal directed for modification of the Government resolution Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 4 of 15 dated 4.12.2013 without discrimination. As it understood from the Government order dated 14.9.2015 the State Government has constituted a Ministerial Sub- Committee to resolve the issue. Therefore, unless the Ministerial Sub-Committee takes a decision, no action could have been taken against the petitioners by the State Government or its authorities. 10. In Ganjam district about 69 SC/ST and PH Gana Sikshyaks including the present petitioners have been regularized. They have also got the financial benefits from out of such regularisation. Therefore, they have accrued a valuable right in their favour. However, the Opposite Party no.3 in his order no.4950 dated 30.11.2015 has withdrawn the order of regularisation of the petitioners dated 19.8.2014 unilaterally without affording any opportunity to the petitioners and other similarly situated persons. By such order dated 30.11.2015, the petitioners and other regular Zilla Parishad teachers have to be reverted back and to be treated as the Gana Sikshyaks. However, before issuing such letter not a single opportunity was given to the petitioners to defend themselves. Hence, it is clear violation of the principle of natural justice. 11. The Zilla Parishad teachers though not Government servants however, their service conditions are at par with the level-V teachers of the State Government. The State Government in office order dated 27.4.2015 has already taken a decision that there is no illegality or irregularity in the order of regularisation dated 4.12.2013. Under such circumstances, further, vide order dated 14.9.2015 or 30.11.2015 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 5 of 15 are in clear contradiction to the aforesaid order. Be that as it may, the order dated 30.11.2015 is a penalty on the petitioners as it amounts to reversion of their service. Once they have accrued a right through the order of regularisation, in the event of withdrawal of such order of regularisation minimum requirement of principle of natural justice ought to have been followed. But in the instant case not a single show cause notice was issued to the petitioners in any manner whatsoever. On this ground alone the order dated 30.11.2015 is liable to be set aside. 12. Since there is no other rule deciding the service conditions of the petitioners the State Government rules should have been followed in case of the petitioners or the minimum requirement of principles of natural justice has to be followed by the authorities before passing any penal order. In that event the show cause notice should have been served on the petitioners followed with an enquiry. 13. In the present case, no show cause notice was ever issued to the petitioners or any enquiry has been made. Besides the above in the entire fact situation of the case no fault can be attributed to the petitioners. Therefore without following the principles of natural justice, the right extended to them cannot be withdrawn unilaterally. By the order of the State Government the Opposite Party no.3 has regularise the petitioners and the petitioners have completed more than one year on regular service, so at this juncture withdrawing their order of regularisation and allowing them to continue as Gana Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 6 of 15 Sikshyak is quite illegal, arbitrary, humiliating and whimsical. Hence the order is liable to be set aside. 14. The Govt. resolution dated 9.11.2009 provides the service condition of the petitioners (Zilla Parishad teachers). The said resolution was further affirmed in Govt. in the School and Mass Education Department order 3.10.2013. Their service conditions are to be guided and governØd under the OCS (CCA) Rules, 1962. Under such circumstances for reversion of the petitioners is a major penalty as prescribed under Rule 13 of the OCS (CCA) Rules, 1962. However, to impose such major penalty on an employee the detail procedure as laid down under Rule 15 has to be followed. But in the instant case not even a single show cause notice was charged against the petitioners. Therefore, the impugned order is unsustainable in law and liable to be set aside. The petitioner under take to produce the Govt. resolution at the time hearing of the case. II. SUBMISSIONS OF OPPOSITE PARTIES/ STATE: 15. Per contra, Senior Standing Counsel for the Opp. Parties/ State intently made the following submissions: 16. Initially the petitioners were continuing as Education Volunteer in different EGS Centre under the Education Guarantee Scheme (EGS). Subsequently as per the decision taken by the Govt. in the department of School & Mass Education such EGS Centres were upgraded as primary school. Consequently the petitioners along with similar situated Education Volunteers those who were Signature Not Verified continuing faced retrenchment. Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 7 of 15 17. The Govt. in the Department of S & M.Ε. took a decision by way of a Resolution on 16.2.2008 rehabilitate such retrenched Education Volunteers (EVs) pursuance to abolition of EGS centres as Gana Sikshyaks in the process the persons those who were continuing as EVs under different EGS centres. Consequent upon such abolition of EGS centres, Education Volunteers were rehabilitated as Gana Sikshyaks. During continuance of these Gana Sikhyaks the Govt. in the Department of S & M.E. took a decision by way of a resolution dated 04.12.2013 as per the decision taken by a Ministerial Sub- Committee whereby Gana Sikhyaks belonging to the category of SC, ST and Physically Handicapped, having requisite academic qualification (+2 and above) to be considered for Zilla Parishad teachers after completion of 6 years service as Gana Sikhyak. 18. Under the said resolution, it was decided that the regularization will be deferred till the date of acquiring requisite qualification, however they may get the benefit of Zilla Parishad teachers with retrospective effect i.e. the date of completion of six years service. Pursuant to such decision taken by the Govt. in the department of S & M.E. as under Resolution dated 04.12.2013, 69 Gana Sikhyaks were appointed as Zilla Parishad teachers vide letter No.5763 dated 19.8.2014 of the then District Project Officer, SSA, Ganjam. 19. Pursuant to such decision taken at the instance of the Govt. under resolution dated 04.12.2013, several persons challenged such decision of the Govt. issued under resolution dated 4.12.2013 by filing several cases before the State Administrative Tribunal. In this Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 8 of 15 connection, it is pertinent to mention here that all such cases filed at the instance of different persons were analogously heard by the Tribunal and disposed of by the Tribunal in a common judgment, the lead case being O.A. No.1758/2014. The Tribunal after hearing the counsel for the parties at length and after examining the legal as well as factual aspects involved in the case and after examining all the materials available on records categorically held that the classification among the Gana Sikhyaks belonging to general and belonging to SC/ST & PH category regarding benefits of regularization violates the Article-14 of the Constitution of India and is discriminatory and such classification does not satisfy the criteria fixed by the Apex Court. Accordingly, on the basis of the aforesaid findings and observations the Tribunal directed the authorities of the State Govt. to issue appropriate orders modifying the order dated 04.12.2013 so that the same is accordance with the provision of Constitution of India. 20. The said judgment passed by the Tribunal dated 10.3.2015 in O.A. No. 1758/2014 and batch of cases were assailed by the aggrieved parties those who have got the benefit under resolution dated 04.12.2013 have filed a writ petition bearing W.P. (C) No.11218 of 2015. During pendency of the writ petition vide resolution dated 25.2.2016, the Govt. in the department of S. & M.E. withdrew the resolution dated04.12.2013 on the basis of the direction issued by the Tribunal dated10.3.2015 in O.A. No. 1758/2014. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 9 of 15 21. The Govt. in the Department of S & M.E. after examination of the demands of Gana Sikhyaks constituted a Ministerial Sub-Committee under the Chairmanship of Minister of Finance and Public Enterprises and on the basis of recommendation of the said ministerial sub-committee the Govt. after careful consideration have resolved the demand of Gana Sikhyaks under Resolution No.14467/SME, dated25.7.2016. Under such resolution a decision was taken as a matter of policy that Gana Sikhyaks who have +2/ Degree qualification with either C.T/B.Ed. and who have completed 8 years of continuous and satisfactory engagement will be regularized as (Elementary Level-V) teachers in the year 2016-17 after detail modalities on regularization are worked out by the Govt. in the department of S & M.E. 22. Pursuant to the direction of the Tribunal dated 10.3.2015 passed in O.A. No. 1758/2014 the Govt. in the Department of S & M.E. communicated a letter bearing letter No.19325/SME dated 14.9.2015 to all the Collectors-cum-C.E.O., Zilla Parishad and all District Project Coordinators all over the State for non-implementation of the provision contained in Para-7 of the resolution No.2786/SME, dated
Decision
04.12.2013 of the writ petition. Under such letter, it was stated inter- alia that the Tribunal vide order dated 10.3.2015 in O.A. No. 1758/2014 filed by Santosh Kumar Nahak and 19 others have directed the authorities to modify the order especially Para-7 of the Resolution as provision contained in such para violates Article-14 of the Constitution of India. To resolve these issues the ministerial sub- Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 10 of 15 committee has been formed and such committee is considering the matter in connection with problems of Gana Sikhyaks. 23. As such there is neither any illegality nor any irregularity committed at the instance of then Collector-cum-C.E.O., Zilla Parishad by issuing such order, so as to invoke the extra ordinary jurisdiction of this Court. 24. The impugned order dated 13.11.2015 passed by the DPC, SSA, Ganjam on the basis of the instruction issued by the Govt. in the Department of S & M.E. as per the specific direction of the Tribunal dated 10.3.2015 passed in O.A. 1758/2014 passed by the State Administrative Tribunal. It is pertinent to mention here that the said judgment dated 10.3.2015 passed in O.A. No. 1758/2014 and batch of cases challenging the legality of such order was tested before this Court in W.P.(C) No.11218/2015. It may be mentioned here that during pendency of the writ petition lot of development have taken place such as Govt. instruction was issued under letter dated 14.9.2015. Action taken by the Collector-cum-D.P.C., SSA, Ganjam by withdrawing the order of regularization of service of 69 no. of Gana Sikhyaks as per the order dated 19.8.2014 of DPC, SSA, Ganjam. Furthermore, in the meantime the Govt. in the Department of S & M.E. by taking into consideration of the direction of the Tribunal dated 10.3.2015 and on the basis of recommendation of ministerial sub-committee have taken a decision under Resolution No.4168/SME, dated 25.2.2016 wherein the Govt. in the department of S & M.E. has already withdrawn the resolution No.27867/SME, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 11 of 15 dated 4.12.2013 on career advancement policy of Gana Sikhyaks on the basis of which the present petitioners and 69 others have been appointed as Zilla Parishad teachers. 25. Pursuant to the policy decision of the Govt. under resolution dated 25.7.2016, the service of the petitioners has already been regularized as Asst. Teachers Level-V Ex-Cadre on the basis of Office Order No. 13101 dated 30.12.2017 passed by the District Education Officer, Ganjam for better appreciation of facts. III. COURT’S REASONING AND ANALYSIS: 26. As clarified by the Opposite Parties/ State, it was instructed to all Collectors and District Project Coordinators all over the State not to take any final decision and not to regularize any Gana Sikhyak engaged under the administrative control of the respective districts. Pursuant to such communication made at the instance of Commissioner-cum-Secretary to Govt., Department of S & M.E., the then Collector-cum-C.E.O., Zilla Parisha has passed an order bearing order No.4950 dated 30.11.2015 wherein Collector indicated in such order that the regularization of service of 69 nos. of Gana Sikhyaks under SC/ST and PH category in the district of Ganjam which was made in terms of resolution No.27867/SME, dated 4.12.2013 of S & M.E. Department vide order No.5763 dated 9.8.2014 of D.P.C., SSA, Ganjam is hereby withdrawn. 27. Accordingly, the remuneration of 69 nos. Gana Sikhyaks will be drawn as per the previous mentioned resolution dated4.12.2013 of the Govt. in the department of S & M.E. Such order passed by the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 12 of 15 then Collector-cum-C.E.O., Zilla Parishad, Ganjam dated 13.11.2015 is impugned in this writ petition. It is further submitted that such order is a consequence of the instruction issued by the Commissioner-cum-Secretary to Govt. in the Department of S & M.E. under letter No.19325/SME dated 14.9.2015 which instruction was issued by the Commissioner-cum-Secretary strictly in accordance with direction of the Tribunal dated 10.3.2015 passed by the Tribunal in O.A. No. 1758/2014 filed by Santosh Kumar Nahak and 19 others. As such the order issued by the then Collector which is impugned in this writ petition i.e. order dated 13.11.2015 is strictly in accordance with the instruction issued by the Commissioner-cum-Secretary to Govt. in the Department of S. & M.E. under letter No.14.9.2015 and such instruction is based upon the direction of the Tribunal dated 10.3.2015 in O.A. NO.1758/2014. 28. This Court after hearing the counsel for the parties took cognizance of the facts that as per the direction of the Tribunal wherein Tribunal directed for modification of letter dated 4.12.2013. The said resolution has been withdrawn by the State Govt. vide Resolution dated 25.2.2016. Further, the Govt. has issued a new resolution dated 25.7.2016 governing the career advancement policy of the Gana Sikhyaks and the same is in force. Keeping in view the aforesaid reason this Court was not inclined to interfere with the order passed by the Tribunal dated 10.3.2015 passed in O.A. No.1758/2014 and thereby dismissed the writ petition vide judgment dated 1.9.2016. For better appreciation of facts the operative portion of the judgment Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 13 of 15 dated 01.9.2016 passed by this Court in W.P.(C) No.11218 of 2015 is quoted hereunder:- that though the Tribunal directed "Even otherwise, this Court is of the view that since the Resolution dated 4.12.2013 which the petitioners are defending has been already withdrawn by the Government of Odisha in School its and Mass Education Department vide Resolution dated 25.2.2016, the substratum of the case of the petitioner has vanished. It may be noted for here modification of the Resolution dated 4.12.2013. However, the said Resolution has been withdrawn by the State Government vide Resolution dated 25.2.2016. Further, the Government has issued a new Resolution dated 25.7.2016 governing the Career Advancement Policy for Gana Sikshyaks and the same is in force. For all these reasons, we are not inclined to interfere with the matter. Accordingly, the writ application stands dismissed. No cost.” 29. The order dated 30.11.2015 withdrawing the order of regularization issued in favour of the petitioners is a natural consequence of the aforementioned judgment dated 1.9.2016 confirming the order 10.3.2015 of the Tribunal in O.A. 1758 of 2014. In view of the same, the contention of the petitioners that there has been reversion of their service is not acceptable. Moreover, conforming action by the Opp. Parties keeping in spirit with the order of the learned Tribunal dated 10.3.2015 that was subsequently confirmed by this Court cannot be said to be a punishment imposed on the petitioners, for which, the OCS (CCA) Rules, 1962 can be invoked. It is pertinent to mention Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 14 of 15 here that the aforementioned order of this Court, having not been challenged in any forum, has become final. 30. Gana Sikshaks who have completed 8 years of continuous and satisfactory engagement will be regularized as Elementary Level-V teacher as per the Resolution 14467/SME dated 25.07.2016 issued by Govt. in S & ME Deptt. and the modalities of regularization of Gana Sikhyak pursuant to notification No.25290/SME, dated 22.12.2016 by Govt. in S & ME Department. 31. The petitioners have been regularized as Elementary Level-V teacher (Ex-cadre) on 30.12.2017 and regular salary has been received timely without any interruption from DPC, SS, Ganjam. The qualification of the petitioners does not conform to the requisite qualification of Shiksha Sahayak as per the Govt. Resolution No.587 dated 10.01.2011 by Govt. in S & ME Department at the time of Engagement as Gana Shikshak as per the Resolution No.3358/SME, dated 16.02.2008. Hence, the career advancement policy of the Shiksha Sahayak cannot be applied to the present petitioners. 32. With respect to the aforesaid discussion, this Court is not inclined to entertain the prayer of the petitioners in WPC (OAC) No.416 of 2016. Accordingly, the WPC (OAC) No.416 of 2016 is dismissed. 33. Accordingly, all these Writ Petitions are dismissed. Signature Not Verified Orissa High Court, Cuttack, Dated the 22nd Dec. 2023/ Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 (Dr. S.K. Panigrahi) Judge Page 15 of 15