The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.32674, 32502, 32505, 32820, 32931, 32934, 32943, 32944, 33092, 33095, 33183, 33200, 33348, 33349, 33102 & 33108 of 2023 Akshaya Kumar Mallik and Others …. Petitioners Mr. D.N. Rath, Advocate (in W.P.(C) Nos.32674, 32502, 32505, 32820, 32931, 32934, 32943, 32944, 33092, 33095 of 2023) Mr. P. Panda, Advocate (in W.P.(C) No.33183 of 2023) Mr. B.S. Tripathy, Advocate (in W.P.(C) No.33200 of 2023) Mr. K.K. Swain, Advocate (in W.P.(C) Nos.33348 & 33349 of 2023) State of Odisha and Others -versus- …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 10.10.2023 Order No. 01. 1. These matters are taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. I.A. filed in Court be kept in record and be Registered.
Legal Reasoning
3. Heard learned counsels appearing for the petitioners in these batch of Writ Petitions and Mr. S.K. Samal, learned Addl. Govt. Advocate for the State-Opp. Parties. // 2 // 4. All these batch of Writ Petitions have been filed challenging the clarification issued by the Opposite Party No.2 on 14.09.2023 and consequential letter issued by the concerned BEOs/DEOs basing on the said clarification. 5. It is the case of the petitioners that the service condition of the petitioners are governed under the provisions of Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 and further amended on 09.04.2019 (hereinafter called as the Rules). It is contended that under the aforesaid amended Rules of 2019 though there is specific provision for preparation of Gradation and Seniority List of Elementary Teachers continuing as Level-V-A, Level-V-B, Level-IV and Level-III under Rule-15 and the eligibility criteria for extending the benefit of promotion after such preparation of Gradation List is prescribed under Rule-11 of the said Rules, but Opp. Party No.2 on the face of said Recruitment rule when issued various clarification to be followed by the concerned District Education Officers (in short DEOs) and Block Education Officers (in short BEOs) the 1st being on 06.05.2023 with subsequent corrigendum issued on 15.05.2023 as well as 31.05.2023, challenging the clarification so issued by the Opposite Party No.2 on 06.05.2023 with regard to fixation of Seniority and Gradation List of Elementary Cadre Teachers in the State, a number of Writ Petitions were filed before this Court. Page 2 of 8 // 3 // 5.1. It is contended that this Court considering the challenge made to such clarifications issued by the Opposite Party No.2 on 06.05.2023 and further clarification issued on 15.05.2023 and 31.05.2023 took up the issue in W.P.(C) Nos.21773 and 22159 of 2023. Since in course of hearing, this Court finds that because of the action of the Opp. Party No.2 in issuing such clarifications on 06.05.2023 and subsequent dates, Seniority and Gradation List of Elementary Cadre Teachers were prepared differently by different DEOs & BEOs of the State, this Court vide its order dated 27.07.2023, while disposing the matter issued certain directions on the Opp. Party No.2 which is more fully indicated in para-7 and 7.1 of the said order. Para-7 & 7.1 of the order dated 27.07.2023 are quoted hereunder :- <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 the provisions in 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) such month 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. terms of receipt from date the of of 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 extend the benefit of promotion in favour of the Elementary Cadre Teachers of the State.= Page 3 of 8 // 4 // 5.2. Learned counsels appearing for the Petitioners contended that without following the order passed by this Court in its order dated 27.07.2023 in letter and spirit, Opp. Party No.2 has issued the impugned clarification once again on 14.09.2023 with regard to preparation of Gradation List for promotion of Elementary Cadre Teachers, which is not in accordance with the order passed by this Court on 27.07.2023. Opposite Party No.2 has once again created confusion with regard to preparation of Gradation & Seniority List of elementary cadre teacher and approval thereof. 5.3. It is contended that since Rule-15 of the Amended Rules, 2019 is very clear in no uncertain term for fixation of Seniority and Gradation List of Elementary Cadre Teachers, the clarification issued by the Opp. Party No.2 on 14.09.2023 will again create confusion in the minds of respective DEOs & BEOs and it will again create chaos amongst the Elementary Cadre Teachers of the State. Learned counsel for the Petitioners specifically pointed out that while issuing the clarification on 14.09.2023, the note issued for preparation of Seniority & Gradation List of Level-V(B) teachers will cause further illegalities. The note indicated in the impugned clarification is quoted hereunder:- <N.B.: The teachers who had acquired bachelor degree and were already placed in the Gradation list of Graduate Teacher (Category-2) prior to enforcement of the amended rules, 2019 are not required to pass OTET. But if, some teachers were shifted to Gradation list of Graduate Teacher (Category-2) from category-1 merely on acquiring bachelor degree without passing OTET after Page 4 of 8 // 5 // amended rules, 2019 came into force is a strict violation of the rule mentioned in Para-8(b)(d)(2). Such teachers may ask for reversible option from Category-2 to Category-1 to enable their promotion to the next higher level. If any teacher does not want to exercise reversible option, then his/her promotion to the next higher level shall not be considered as the shifting in the Gradation list was made in contravention to the existing rules).= 5.4. It is accordingly contended that since the provisions contained under Rule 15 of the Amended Rules, 2019 is very much clear and there is no ambiguity to follow the same with regard to preparation of Gradation & Seniority List of Elementary Cadre Teachers of the State, Opposite Party No.2 should not issued the clarification with the aforesaid note for preparation of the Gradation List of Elementary Cadre Teachers of the State. It is accordingly contended that the clarification issued by the Opposite Party No.2 on 14.09.2023 requires interference of this Court. 6. Mr. S.K. Samal, learned Addl. Govt. Advocate basing on the stand taken in the I.A. so filed in Court today contended that since basing on the earlier clarification issued by the Opp. Party No.2 on 06.05.2023 and 15.05.2023 and 31.05.2023, some of the DEOs & BEOs by following the clarification so issued not only prepared the Seniority and Gradation List of Elementary Cadre Teachers but also extended the benefit of promotion, Opp. Party No.2 in order to clarify that position issued the clarification on 14.09.2023 with the note to be followed for preparation of such gradation list. However, learned Addl. Govt. Advocate contended that if this Court will give liberty to the concerned DEOs & BEOs to rectify the Page 5 of 8 // 6 // mistake/wrong committed in preparation of the Gradation List of Level-V-B and Level-IV Teachers and so also the promotions given in contravention to the provisions of Rule-15 by following the earlier clarifications issued by the O.P. No.2 on 06.05.2023 onwards, the order passed by this Court on 27.07.2023 will be carried out in letter and spirit. 7. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that with regard to preparation of Seniority and Gradation List of Elementary Cadre Teachers, Rule 15 of the Amended Rules, 2019 is very much clear. Similarly, with regard to eligibility of such teachers to get the benefit of promotion to the next level Rule-11 of the Amended Rules, 2019 is also very clear. Since this Court finds that the 1997 Rules so amended in 2019 is clear in all respect with regard to preparation of Seniority and Gradation List of Elementary Cadre Teachers under Rule-15 and Rule-11 also prescribes the eligibility criteria for effecting such promotion after preparation of Gradation List, it is the view of this Court that the clarification issued by the Opp. Party No.2 on 14.09.2023 is not in accordance with Rule-15 of the Rules as well as the order passed by this Court on 27.07.2023. This Court is accordingly inclined to quash the clarification so issued on 14.09.2023. 7.1. While quashing the same, this Court directs Opp. Party No.2 to issue a common direction to all the DEOs & Page 6 of 8 // 7 // BEOs of the State to prepare the Gradation List of Elementary Cadre Teachers strictly in accordance with Rule-15 of the Rules and thereafter to give the benefit of promotion to eligible Elementary Cadre Teachers in terms of Rule-11. This Court directs Opp. Party No.2 to issue common direction as directed hereinabove within a period of 2 (two) weeks from today. Opposite Party No.2 is also directed to direct concerned DEOs & BEOs to prepare Gradation List of Elementary Cadre Teachers in accordance with Rule-15 by following due procedure of law, within a period of 2 (two) months from the date of receipt of such direction and to conclude the process of giving promotion in accordance with Rule-11, within a further period of 1 (one) month. 7.2. However, considering the submissions of the learned State Counsel that basing on the clarification issued earlier by the Opp. Party No.2 with regard to preparation of Gradation List and prior to passing of the order by this Court on 27.07.2023, some elementary cadre teachers in different level have got the benefit of promotion in the meantime, this Court observes that concerned DEOs & BEOs after preparation of the Gradation List afresh in terms of the Rule-15 of the Rules and after extending the benefit of promotion to eligible teachers in terms of Rule- 11 of the Rules, can take appropriate step to rectify the mistake so committed while extending the benefit of promotion by following due procedure of law. Learned counsels appearing for the petitioners also contended Page 7 of 8 // 8 // that they do not have any objection if necessary step is taken to rectify such mistake in accordance with law. 8. All the Writ Petitions along with the I.A. are
Decision
accordingly disposed of. (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: 12-Oct-2023 15:39:34 Page 8 of 8