The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.42168, 42172, 42314, 39000 & 42317 of 2023 and W.P.(C) Nos.415, 471, 2061, 366, 500, 482, 1197, 943, 370, 1425, 1633, 672, 407, 492, 2067, 2193 & 1428 of 2024 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Dibakar Barik …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioners : Mr. D.N. Rath, Advocate (In W.P.(C) Nos.1428, 672, 1425, 482, 500, 366, of 2024 & W.P.(C) Nos.39000, 42172 & 42168 of 2023) Mr. K.K. Swain, Advocate (In W.P.(C) Nos.2193, 492, 407, 415, 370, 1197, 2061 & 471 of 2024 & W.P.(C) Nos.42317, 42314 of 2023) Mr. K.C. Sahu, Advocate (In W.P.(C) No.2067 of 2024) Ms. A. Nayak, Advocate in W.P.(C) No.1633 of 2024 Mr. B.P. Das, Advocate in W.P.(C) No.943 of 2024 For Opp. Parties : Mr. S. Jena, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:01.02.2024, and Date of Order:12.03.2024 27.02.2024 and 28.02.2024 ---------------------------------------------------------------------------- // 2 // Biraja Prasanna Satapathy, J. 1. Since the issue in all these Writ Petitions are identical, all the matters were heard analogously and disposed of by the present common order. 2. All these writ petitions have been filed inter alia challenging the direction issued by the Director, Elementary Education vide its letter dated 16.12.2023 and consequential direction issued by the concerned District Education Officers for preparation of Gradation List of Level-IV, Elementary Teachers Category-II. 2.1. Petitioners are aggrieved by the clarification issued by the Director, Elementary Education in his letter dated 16.12.2023 on the following issue which is reproduced hereunder:- “But those who have acquired higher qualification after 11.02.2021 and exercising their option to become graduate teacher have passed OTET-II they shall be placed in the Gradation List of teachers with bachelor degree below the existing teacher taking into account the date of passing OTET- II.” 3. It is the case of the petitioners that all the petitioners were appointed as Level-V teachers in terms Page 2 of 17 // 3 // of the advertisement published prior to 11.02.2011. As provided under Rule-3 of the Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997(In short “Rules”) the services of such Elementary Teachers comprise of the following Levels, namely:- “(i) The Odisha Elementary Education Service, Level-V(A) (ii) The Odisha Elementary Education Service, Level-V(B) (iii) The Odisha Elementary Education Service, Level-IV (iv) The Odisha Elementary Education Service, Level-III (v) The Odisha Elementary Education Service, Level-II (vi) The Odisha Elementary Education Service, Level-I, (vii)The Odisha Elementary Education Service, Level-I (Senior)” 3.1. As provided under Rule-3(2)(a)(II) of the Rules the Odisha Elementary Education Service Level-IV shall consist of the following categories of posts namely:- “(a) Headmasters or Headmistresses, as the case may be of Government Primary Schools (b) Graduate Teachers of Upper Primary Schools.” 3.2. As provided under Rule-5 of the Rules, there shall be constituted 3 (three) types of Selection Committee to select candidates for their appointment to various categories of posts as mentioned against each and the Committee shall be of the following nature namely:- Page 3 of 17 // 4 // “(i) State Level Committee (ii) Directorate Level Committee and (iii) District Level Committee.” 3.3. As provided under Rule-5(3)(a) of the Rules, the District Level Committee in each Educational District consist of the District Education Officer of the concerned District as the Chairman and District Development Officer, District Welfare Officer and one of the Block Education Officer as members of the Committee. As provided under Rule-5(3)(d), the Committee shall select the candidates to the posts belonging to Level-IV and Level-III of the service.
Legal Reasoning
3.4. It is contended that as provided under Rule-6(1)(d) (1-a) of the Rules, vacancies in the posts belonging to Level-V(B), IV, III, II and I (Senior) shall be filled up by way of promotion. Rule-9 of the Rules deals with the power to draw up the lists of all eligible candidates for promotion, as the case may be, from Level-V(A) to Level-V(B), Level-V(B) to Level-IV, Level-IV to Level-III, Level-III to Level-II, Level-II to Level-I and Level-I to Level-I (Senior) of the service. Page 4 of 17 // 5 // 3.5. As provided under Rule-9(4) of the Rules, the Committee at the District Level shall recommend the list containing the names of eligible candidates prepared by it to the Director Elementary Education for approval. Similarly as provided under Rule-9(5) of the Rules after its approval by the Director, Elementary Education for promotion from Level-V(A) to Level-V(B), Level-V(B) to Level-IV and Level-IV to Level-III of the service, the District Education Officers shall make necessary allotment to the Senior Block Education Officer or Block Education Officer for issue of appointment order. 3.6. Learned counsels appearing for the Petitioners contended that Rule-11 of the Rules prescribes the criteria with regard to eligibility for promotion from different level. Rule-11(1) of the Rules prescribe the eligibility for promotion to the post belonging to Level- V(B) and Rule-11(2) prescribe the eligibility for promotion to the post of Headmaster/Headmistress of the Govt. Primary School in Level-IV of the Service. Page 5 of 17 // 6 // Rule-11(1) and Rule-11(2) of the Rules are reproduced hereunder:- “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 posts belonging to Level-V(A) of the service. Provided that- Teachers (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 Course/Diploma in Elementary Education from any recognized Board or University or equivalent thereof and (for have passed Odisha Teachers Eligibility Test-I candidates engaged as Sikshya Sahayak or Junior Teacher the advertisement published after 11.02.2011). (Contractual) against Training/Certified (ii) 50% of the vacancies shall be filled up by the candidates possessing a Bachelor Degree in any discipline with Secondary Teachers Training/Certified Teacher 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 the advertisement published after 11.02.2011). (Contractual) against 2. (i) In 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 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. Course/Diploma Teachers (ii) In order to be eligible for promotion to the post of Graduate Teachers in Government Upper Primary Schools in Level-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.” Page 6 of 17 // 7 // 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).” 3.7. Learned counsels appearing for the petitioners also brought to the notice of this Court the provisions contained under Rule-15 of the Rules, which prescribe the modality with regard to preparation of Seniority and Gradation List separately for the post belonging to Level-V(A), Level-V(B), Level-IV and Level-III of the service strictly on the basis of Seniority. 3.8. Rule-15(1)(a) and Rule-15(1)(d)(1) prescribes the modality for preparation of Seniority and Gradation List, which are reproduced hereunder:- “15. Seniority and gradation list-1(a) The District Education Officer of the concerned Revenue Districts shall maintain gradation list separately for the posts belonging to Level-V(A), Level-V(B), Level-IV and Level-III of the service strictly on the basis of seniority. (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 Page 7 of 17 // 8 // Elementary Education or Bachelor in Education and pass in Odisha Teachers Eligibility Test-II. “Provided that the teachers appointed against the advertisements published prior to 11.02.2011 are exempted from passing Odisha Teachers Eligibility Test- I and Odisha Teachers Eligibility Test-II. (2) Separate Gradation list of Senior Teachers in Level-V(B) of the service shall be prepared after taking into consideration the option exercised by the Senior Teachers, as will be notified, having qualification of Bachelor Degree in any discipline with Secondary Teachers’ Training of Certified Teachers Course or Diploma in Elementary Education and pass in Odisha Teachers Eligibility Test-I for considering promotion to Level-IV of the service, provided that such Senior Teachers in the Level-V(B) of the service, exercising their option to become Graduate Teacher, have passed Odisha Teachers Eligibility Test-II. They shall be placed in the Gradation List of Senior Teachers with Bachelor Degree below the existing teachers taking into account the date of passing of the Odisha Teachers Eligibility Test-II as well as the seniority in the merit list finalized for promotion to the grade of Level-V(B) of the service.” 3.9. Placing reliance on the provisions contained under the proviso to Rule-15(1)(d)(1) of the Rules, learned counsels appearing for the petitioners contended that teachers appointed against the advertisement published prior to 11.02.2011 are exempted from passing OTET-I and OTET-II. In the present batch of Writ Petitions all the petitioners are admittedly appointed in Level-V(A) against the advertisement published prior to 11.02.2011. Therefore, in view of the provisions contained under the proviso to Rule-15(1)(d)(1) of the Rules, the petitioners are not required to pass either OTET-I or OTET-II. Page 8 of 17 // 9 // 3.10. Similarly, Rule-15(2) of the Rules prescribes for preparation of separate Gradation List of Senior Teacher in Level-V(B) of the service. Rule-15(2) of the Rules provides as under:- “(2) Separate Gradation list of Senior Teachers in Level-V(B) of the service shall be prepared after taking into consideration the option exercised by the Senior Teachers, as will be notified, having qualification of Bachelor Degree in any discipline with Secondary Teachers’ Training or Certified Teachers Course or Diploma in Elementary Education and pass in Odisha Teachers Eligibility Test-I for considering promotion to Level-IV of the service, provided that such Senior Teachers in the Level-V(B) of the service, exercising their option to become Graduate Teacher, have passed Odisha Teachers Eligibility Test-II. They shall be placed in the Gradation List of Senior Teachers with Bachelor Degree below the existing teachers taking into account the date of passing of the Odisha Teachers Eligibility Test-II as well as the seniority in the merit list finalized for promotion to the grade of Level-V(B) of the service.” 3.11. It is also contended that Explanation-II appended to Rule-15 prescribes that all persons now working as regular Headmaster/Headmistress of Government Primary School shall be treated as members of Level-IV of the service, from the date of commencement of these rules. Seniority of such persons shall be determined from the date of their holding the post as such on regular basis, they shall be a part of the district cadre in which they are serving. Page 9 of 17 // 10 // 3.12. It is contended that under Rule-15(2) of the Rules, no such prescription is there as has been clarified by the Director, Elementary Education in his letter dated 16.12.2023, to the effect that those who have acquired higher qualification after 11.02.2011 and exercising their option to become graduate teacher must have passed OTET-II. It is contended that as provided under Rule-15(2) of the Rules, Senior Teachers in Level-V(B) of the service, exercising their option to become Graduate Teacher, have passed OTET-II. But petitioners in the present batch of Writ Petitions were appointed against the advertisement published prior to 11.02.2011 and in view of the provisions contained under Rule-15(1)(d)(1), they are exempted from passing OTET-I and OTET-II. O.P. No.2 therefore could not have clarified that for preparation of Gradation List of Senior Teachers in Level-V(B), those who have acquired higher qualification after 11.02.2011 are required to pass OTET-II. It is contended that since under Rule-15(2) of the Rules, no such cutoff date is prescribed, Director, Elementary Education was not supposed to insert such a cutoff Page 10 of 17 // 11 // date for those teachers who acquired the higher qualification after 11.02.2011 for their placement in the Gradation List of Senior Teachers in Level-V(B). It is accordingly contended that the clarification issued by the Director in his letter dated 16.12.2023 to the effect that those who have acquired higher qualification after 11.02.2011 and exercising their option to become Graduate Teacher have to pass OTET-II, is not permissible and it requires interference of this Court. 3.13. It is also contended that by the time the impugned clarification was issued by O.P. No.2 on 16.12.2023, most of the petitioners in the present batch of Writ Petitions after being included in the Gradation List of Level-V(B) Teachers have got the benefit of promotion to Level-IV. Such of the petitioners who have already availed the benefit of promotion to Level-IV are now eligible and entitled to get the benefit of promotion to Level-III, but taking into account the impugned clarification issued by O.P. No.2 on 16.12.2023, respective District Education Officers are not including the petitioners in the Gradation List of Page 11 of 17 // 12 // Level-IV Teachers. Since prior to issuance of the impugned clarification, most of the petitioners were not only included in the Gradation List of Level-V(B) Teachers but also got the benefit of promotion to Level- IV, the stipulation contained in the impugned clarification regarding passing of OTET-I and OTET-II to the case of such petitioners is not sustainable in the eye of law. 3.14. It is also contended that even if not admitting but for the sake of argument, the impugned clarification can at best be applied to teachers who have now become eligible for their inclusion in the Gradation List of Level-V(B). However, since petitioners who are now eligible for their inclusion in Level-V(B), were earlier exempted from passing OTET-I and OTET- II, because of their appointment being made in terms of advertisements issued prior to 11.02.2011, such of the petitioners may be allowed for their inclusion in the Gradation List of Level-V(B) and for consideration of their claim to get the benefit of promotion to Level-IV with the condition that they will acquire OTET-I and Page 12 of 17 // 13 // OTET-II as required within a time period to be stipulated by this Court. 4. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand while supporting the clarification issued by the Director in his letter dated 16.12.2023 contended that since the petitioners after being appointed as Level-V(A) teachers, they have acquired their graduation after 11.02.2011, they are not eligible and entitled to get the benefit of exemption, so provided under the proviso to Rule-15(1)(d)(1) of the Rules, 4.1. It is accordingly contended that since the petitioners have acquired their Graduation after 11.02.2011 and they intended to be placed in the Gradation List of Senior Teachers in Level-V(B), they are required to pass OTET-II, even though their appointment were made against the advertisements published prior to 11.02.2011. 4.2. It is accordingly contended that the stipulation contained in the clarification dated 16.12.2023 of the Director and similar instructions issued by the concerned District Education Officers to follow the Page 13 of 17 // 14 // clarification of the Director has been rightly made and it requires no interference. 5. Having heard learned counsel for the parties and after going through the materials available on record vis-(cid:224)-vis the provisions contained under 1997 Rule rules read with the amended rules, 2019, it is found that under Rule-3 of the Rules the service of the Elementary cadre teachers comprise of Level-V(A) to Level-I (Senior). 5.1. As provided under Rule-11(2)(ii) of the Rules, in order to be eligible for promotion to the post of Graduate Teachers in Govt. Upper Primary Schools in Level-IV of the service, a candidate must have possessed a Bachelor Degree in any discipline or an equivalent examination with Graduation in Secondary Teachers’ Training or Certified Teacher Course or Diploma in Elementary Education and must have served for a continuous period of 2 years in the post belonging to Level-V(B) of the service. 5.2. As provided under Rule-15(1)(d)(1) of the Rules, teachers appointed in Level-V(A) against the Page 14 of 17 // 15 // advertisement published prior to 11.02.2011, are exempted from passing OTET-I and OTET-II. As provided under Rule15(2) of the Rules, separate Gradation List of Senior Teachers in Level-V(B) of the service is to be prepared taking into consideration the option exercised by the Senior Teachers, as has been notified, having qualification of Bachelor Degree in any discipline with Secondary Teachers Training or Certified Teachers Course or Diploma in Elementary Education and pass OTET-I for considering promotion to Level-IV of the service, provided that such Senior Teachers in Level-V(A) of the service, exercising their option to become Graduate Teacher have to pass OTET-II. 5.3. This Court after going through the provisions contained under Rule-15(2) of the Rules, nowhere finds that those who have acquired higher qualification after 11.02.2011 and exercising their option to become Graduate Teacher are required to pass OTET-II. Since petitioners in the present batch of Writ Petitions were all appointed as Level-V(A) Teacher basing on the Page 15 of 17 // 16 // advertisements published prior to 11.02.2011, they were exempted from passing OTET-I and OTET-II for their inclusion in the gradation list of Level-V(A). 5.4. It is also found that basing on the provisions contained under Rule-15 of the Rules vis-(cid:224)-vis Rule-11, most of the petitioners were not only included in the Gradation List of Level-V(B) but also they were extended with the benefit of promotion to Level-IV. But some of the petitioners though have got the benefit of promotion to Level-V(B), but they have not yet get the benefit of promotion to Level-IV. Therefore, placing reliance on the provisions contained under Rule-15(2) vis-(cid:224)-vis Rule-11 of the Rules, it is the view of this Court that those of the petitioners who have already got the benefit of promotion to Level-IV in the meantime, are not required to pass OTET-II. But those of the petitioners who are continuing in Level-V(B) as on date, are required to pass OTET-II for their inclusion in the Gradation List of Level-V(B) and for consideration of their claim to get the benefit of promotion to Level-IV. Page 16 of 17 // 17 // 5.5. But since in view of the provisions contained to the proviso to Rule-15(1)(d)(1), petitioners were earlier exempted from passing OTET-I and OTET-II, this Court directs concerned District Education Officers to include names of those petitioners who are continuing in Level- V(B) in the Gradation List of Level-V(B) and to consider their claim to get the benefit of promotion to Level-IV without insisting on their passing OTET-II for the time being and with the condition that they shall acquire OTET-II within a period of 3 (three) years from the date of getting the benefit of promotion to Level-IV. It is also observed that unless and until such of the petitioners acquired OTET-II, their further promotion will not be considered and they will be reverted to Level-V(B), if they fail to acquire OTET-II within the aforesaid time period. 6. The Writ Petitions are accordingly disposed of with the aforesaid observation and direction. Orissa High Court, Cuttack Dated the 12th March, 2024/Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 12-Mar-2024 19:34:01 Page 17 of 17 (Biraja Prasanna Satapathy) Judge