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2010 DIGILAW 164 (ORI)

JOGENDRA PANDA v. STATE OF ORISSA

2010-03-11

B.K.NAYAK, B.P.DAS

body2010
JUDGMENT : B.P. Das, J. - The Petitioner, Jogendra Panda has come up before this Court challenging the order dated 26.4.2006 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in T.A. No. 54/91. 2. As it appears, the Petitioner had filed a writ petition in the year 1988 and after coming into force of the Administrative Tribunal Act, the same was transferred to the Orissa Administrative Tribunal in the year 1991 and registered as T.A. No. 54 of 1991. The prayer of the Petitioner before the. Tribunal in the aforesaid T.A. No. 54 of 1991 was to direct the opposite parties, i.e. the Secretary School & Mass Education Department, the Director Elementary Education and the Inspector of Schools, Jajpur Circle, to consider his case for appointment/promotion to the post of Headmaster computing the seniority from the date of his training. The Tribunal by the impugned order dated 26.4.2006 (Annexure-1) disposed of T.A. No. 54 of 1991 along with T.A. No. 55 of 1991, filed by another teacher, namely, Abhiram Nanda, with a direction to the opposite parties to entertain and consider the representation of the Petitioner for promotion to the rank of Headmaster, if filed within one month from the date of receipt of copy of that order and pass appropriate orders within three months from the date of receipt of the representation. While disposing of the aforesaid Transfer Applications, the Tribunal observed that acquisition of prescribed qualification, i.e.B. Ed is the only relevant factor to be taken into consideration for the purpose of determining seniority amongst the teachers belonging to Lower Subordinate Education Service (L.S.E.S.) cadre. The Tribunal further observed that in the case at hand, there was no allegation if anybody who obtained B. Ed qualification later than the Petitioner was promoted to the post of Junior-S.E.S. Cadre on the basis of length of service pursuant to the circulars or Resolution sought to be quashed. No counter affidavit was filed either in the earlier writ petition or in the Transfer Application, when the Tribunal adjudicated the case of the Petitioner. The Petitioner has assailed the order of the Tribunal under Annexure-1 in this writ application. According to him, his case is covered by the decision of this Court rendered in the case of P. Bengali Patro and Others, Paramananda Kar and Shri Surendranath Paul Vs. State of Orissa and Others, . 3. The Petitioner has assailed the order of the Tribunal under Annexure-1 in this writ application. According to him, his case is covered by the decision of this Court rendered in the case of P. Bengali Patro and Others, Paramananda Kar and Shri Surendranath Paul Vs. State of Orissa and Others, . 3. Case of the Petitioner is that, after passing the H.S.C. Examination in 1972, he took admission in the C.T. School and completed the C.T. course in the year 1974-75. Thereafter he joined as an Asst. Teacher in Mohanpur Pranchayat Samitee M.E. School. In the year 1977 he was transferred to Bhubanpur M.E. School, and thereafter to Govipur U.P. School as Head Pandit. In the meantime he passed the Bachelor of Arts in the year 1978 and completed the B. Ed course in 1980. 4. According to learned Counsel for the Petitioner, the Petitioner is eligible for the post of Headmaster after he acquired the B. Ed qualification as per Government Resolution Nos. 54879 dated 2.12.1991 and 1425 dated 8.1.1996. According to him, though the Resolution dated 8.1.1996 was to come into force with immediate effect, the opposite parties did not consider the case of the Petitioner for which the Petitioner was deprived of the benefits of the said resolution. According to the Petitioner, the aforesaid being discriminatory, should be wiped out by allowing the prayer of the Petitioner. 5. Opposite parties 1 and 2 did not file any counter affidavit. However, a counter affidavit has been filed on behalf of opposite party No. 3, the District Inspector of Schools, Jajpur-II Education District, Jajpur. The stand taken in the said counter affidavit is that the claim of the Petitioner for grant of Trained Graduate Scale of pay from the date of acquiring the B. Ed qualification is not sustainable in the eye of law because he was not holding the Trained Graduate Teacher post. 6. In Clause-2 of the resolution dated 2.12.1991, it has been indicated thus. xxx xxx xxx. After careful consideration, Government have been pleased to decide that the posts of Head Masters, of Government M.E./U.G.M.E. Schools and Sub-Inspectors of Schools will in future be filled up by way of promotion from among the Primary School Teachers and Assistant Teachers of U.G.M.E. Schools having trained graduate qualification. xxx xxx xxx. After careful consideration, Government have been pleased to decide that the posts of Head Masters, of Government M.E./U.G.M.E. Schools and Sub-Inspectors of Schools will in future be filled up by way of promotion from among the Primary School Teachers and Assistant Teachers of U.G.M.E. Schools having trained graduate qualification. xxx xxx xxx The relevant clause, i.e. Clause-3(1) of the said Resolution is also quoted herein below: The gradation list of all Primary School and U.G.M.E./Government M.E. School teachers having trained graduate qualification will be prepared Revenue district wise by the Circle Inspector of Schools. The gradation list will be prepared on the basis of the date of their appointment. The last line of Clause-3.1 of the aforesaid Resolution dated 2.12.1991 has been modified by the subsequent resolution dated 8.1.1996 to the following effect: The gradation list will be prepared on the basis of the date of passing the B. Ed examination. Where a person has entered into service after acquiring B. Ed. qualification, there the date of his/ her joining in Service shall be the basis for fixing his/her seniority for promotion. Where two or more persons acquire the B. Ed. qualification on a same date, the length of service of those teachers should be taken into account for preparing the gradation list. 7. Form the aforesaid, it is seen that when 1991 Resolution speaks for preparation of gradation list on the basis of date of the appointment, 1996 Resolution modifies the same to the extent that the gradation list will be prepared on the basis of date of passing the B. Ed examination. Similar question was raised before this Court in the case of P. Bengali Patro and Others, Paramananda Kar and Shri Surendranath Paul Vs. State of Orissa and Others wherein this Court held that the Resolution dated 8.1.1996 cannot have retrospective effect and thereby the persons, who got their B. Ed qualification and got the benefit of the policy of the State Government which was effective from the date of earlier Resolution, i.e. 2.12.1991, the seniority should be determined according to the date of appointments of the teachers having B. Ed qualifications. In that case, the Petitioners were promoted prior to the Resolution date 8.1.1996. Therefore, the Court observed that the services of those teachers would be governed by the policy laid down vide Resolution dated 2.12.1991. 8. In that case, the Petitioners were promoted prior to the Resolution date 8.1.1996. Therefore, the Court observed that the services of those teachers would be governed by the policy laid down vide Resolution dated 2.12.1991. 8. In this case, in our considered opinion, the Petitioner is entitled to get the benefit of 1991 Resolution and his case is clearly covered by the decision of this Court rendered in the case of P. Bengali Patro (supra). It would be profitable to quote the direction of this Court given in the case of P. Bengali Patro (supra). The seniority list of the teachers who were already promoted on the basis of the Government Resolution dated 2.12.1991 shall not be disturbed. Further, the teachers who were entitled to be considered for promotion as Headmasters before the subsequent Government Resolution dated 8.1.1996 on the basis of their seniority which was to be determined pursuant to the Government Resolution dated 2.12.1991 shall be considered with effect from the date of promotion of their next juniors under the criteria laid down in the Government Resolution dated 2.12.1991. Accordingly, we dispose of the writ application directing the opposite parties to consider the case of the Petitioner in terms of the Resolution dated 2.12.1991 and in terms of the judgment referred to above, i.e. P. Bengali Patro (supra) and complete the entire exercise within a period of three months from today. No cost.