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Orissa High Court · body

2016 DIGILAW 1278 (ORI)

State of Odisha v. Sankarsan Pal

2016-12-22

S.N.PRASAD, S.PANDA

body2016
JUDGMENT S.N PRASAD, J. - W.P.(C) No.27744 of 2013 has been filed by the State against the common order dated 04. 12. 2012 passed by the Orissa Administrative Tribunal, Principal Bench, Bhubaneswar in O.A No.1449 of 2011, O.A. No.1501 of 2011 and O.A. No.575 of 2012 wherein the Tribunal while allowing the Original Applications by quashing the order dated 30.06.2010 (Annexure-4) has directed the State Government to include the employees of Urban Local Bodies High Schools in the common gradation list by effecting appropriate amendments to the said Rule by framing a separate set of Rules, keeping in view the observations made in the Original Applications. 2. The brief of the case of the applicants before the Tribunal was that they have started their service career as teachers in different Municipal High Schools under Urban Local Bodies under the administrative control and supervision of Urban Development Department. Their eligibility, staffing pattern and conditions of services were exactly similar to those applicable to teachers of Government High Schools under the administrative control of School and mass Education Department. The Urban Local Bodies Schools were public managed Schools as per Orissa Education Code like other Government Schools. The Inspector of School had been declared as the heads of department of such Municipal Schools. But the Municipal Schools were treated as a separate class. The Housing and Urban Development Department has issued a resolution on 28.02.2004 by which the services of the teachers working under the Municipal School has been transferred to School and Mass Education Department and declared the employees of such Schools to be Government servants for all purposes. This resolution left it to the School and Mass Education Department to decide the modality of fixing inter-se seniority of Urban Local Bodies / Municipal Schools so transferred. But after transfer of the Schools, the teachers of Municipal Schools were not promoted to the rank of the Headmaster of Municipal Schools against the vacancies existing in these Schools, though there was no difficulty for the same. At the time of transfer there were already two types of Government Schools i.e. old Government Schools and new (taken over) Government Schools. At the time of transfer there were already two types of Government Schools i.e. old Government Schools and new (taken over) Government Schools. Due to merger of these two types of schools, the Government issued a notification on 20.05.2006 amending the Orissa Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 (hereinafter referred to as ‘the Rules, 1993), deciding the modalities of fixing the inter-se seniority between the teachers of new Government Schools and old Government Schools. But however, no steps were taken to fix the inter-se seniority of the employees of the Municipal Schools rather instead of promoting Municipal Schools teachers to the rank of Headmaster in Municipal Schools, the teachers were made in-charge Headmaster of such Schools. The Subordinate Education Service Rules do not include the Municipal teachers, the State Government cannot apply the said Rules to Municipal teachers, when Rule 33 of the Rules, 1993 specifically excludes its applicability to Municipal teachers. But the Government through their School and Mass Education Department had issued a letter on 30.06.2010 directing fixation of inter-se seniority of Urban Local Bodies / Municipal employees as per the provisions of Subordinate Education Service Rules. The executive instructions dated 30.06.2010 cannot override the statutory provisions. The competent authority has issued a gradation list fixing the inter-se seniority by taking away 50% service rendered by them under Urban Local Bodies / Municipal Schools for the purpose of fixing inter-se seniority. Due objections were made by them by filing series of representations to the Government. But without disposing of the said representations, the provisional gradation list has been issued without counting the service experience of Urban Local Bodies / Municipal teachers in Urban Local Bodies Schools. The further case of the applicants was that without publishing the final gradation list, promotion orders have been issued for posting one of the other teachers as Headmaster of Urban Local Bodies / Municipal Schools by order passed in this regard on 08.11.2011. Hence they have invoked the jurisdiction of the Tribunal for redressal of their grievance. 3. The further case of the applicants was that without publishing the final gradation list, promotion orders have been issued for posting one of the other teachers as Headmaster of Urban Local Bodies / Municipal Schools by order passed in this regard on 08.11.2011. Hence they have invoked the jurisdiction of the Tribunal for redressal of their grievance. 3. The submissions made on behalf of learned counsel appearing for the applicants that the State Government has acted arbitrarily and without considering the fact that the authorities have taken decision by virtue of the resolution dated 28.02.2004 for transfer of 65 Lower Secondary (ME) Schools and when the past services rendered by them has not been taken into consideration, they have approached the Tribunal and after getting no relief from the Tribunal, they have approached this Court by series of Writ Petitions i.e. W.P.(C) No.14979 of 2010 along with analogous cases. This Court after taking into consideration the fact the teaching and non teaching staffs working under the Lower Secondary (ME) Schools, has directed the State authorities to count the past services rendered by such teachers for fixation of inter-se seniority for all practical purposes and as such it has been submitted that by virtue of the notification dated 28.02.2004 when the past services rendered by the employees working under 65 Lower Secondary (ME) Schools have been taken into consideration for fixation of inter-se seniority and by not granting such relief the State authorities have acted arbitrarily and without rhyme and reason. He further submitted that even by not counting the past services rendered by them, by the State authorities without any fault on their part as because it is the decision of the Government to transfer the left out Primary School teachers to these Urban Local Bodies and Lower Secondary (ME) Schools to the School and Mass Education Department declaring the teaching and non teaching staffs of the Schools as Government servants. By virtue of the policy decision, their services have been transferred to the School run by Urban Local Bodies into the State Government by treating them as State Government servants then by no stretch of imagination their past services rendered be excluded from counting for the purpose of inter-se seniority while the other monetary benefits have been directed to be paid at par with regular Government employee and snatching the past services rendered by them for fixing inter-se seniority, such employees have been put into the detrimental situation which is not permissible. 4. Per contra the stand taken by the State is that Government in their Housing and Urban Development Department transferred all the Urban Local Bodies to the School and Mass Education Department and the employees of these transferred Schools became Government servants w.e.f. 28.02.2004 by which the School and Mass Education Department has been authorized to decide the modalities for fixing the inter-se seniority of Urban Local Bodies employees vis-à-vis the employees of other Government Schools and accordingly the School and Mass Education Department, Government of Odisha had issued an order on 30.06.2010 laying down the method of fixing such inter-se seniority following the provisions of Subordinate Education Service Rules, 1993. Accordingly, the final gradation list was published on 04.11.2011 and meeting of Departmental Promotion Committee was convened on 08.11.2011 to promote Junior S.E.S teachers as Headmaster. It has been contended that the claim of the applicants to treat the Urban Local Body teachers as a separate class is not permissible under the Government resolution dated 16.09.2006, since they have taken into regular establishment only w.e.f. 28.02.2004 and as such from that date only they will be treated regular Government employee. But so far as the past services rendered by them the School and Mass Education Department has formulated the modalities to count their 50% length of service for fixation of inter-se seniority and as such no illegality has been committed by the State authorities. But without taking into consideration the aspect of the matter, the Tribunal has passed the order allowing the Original Application. Hence the same is not sustainable in the eye of law. 5. We have heard learned counsel for the parties and perused the documents available on record. But without taking into consideration the aspect of the matter, the Tribunal has passed the order allowing the Original Application. Hence the same is not sustainable in the eye of law. 5. We have heard learned counsel for the parties and perused the documents available on record. From perusal, we have gathered the undisputed fact that applicants have started their service career as teachers in different municipal High Schools under the Local Bodies under the administrative control and supervision of Housing and Urban Development Department. Their eligibility, staffing pattern and conditions of service were exactly similar to those applicable to the teachers of Government High Schools working under the School and Mass Education Department. The Schools running under the Urban Local Bodies were managed as per the Orissa Education Code like other Government Schools. The Inspector of Schools has declared as the Head of the Department of such Municipal Schools. The Government of Odisha through Housing and Urban Development has taken a decision by virtue of the resolution dated 28.02.2004 for transfer of Lower Secondary and Secondary Schools of Urban Local Bodies to the School and Mass Education Department, which was under consideration before the Government and keeping in view the justification for improvement of service condition, the School and Mass Education Department vide their resolution dated 26.09.1989 have declared all the Primary School Teachers of the State as Government Employee w.e.f. 05.09.1989. The Government in order to provide betterment in the service conditions of the employees working in 65 Lower Secondary (M.E) and 82 Secondary Schools or Urban Local Bodies in the State, decided to transfer these categories of Schools along with the teaching and non-teaching staffs to the administrative control of School and Mass Education Department and declared the teacher and non-teaching staff of these Schools as Government employees w.e.f. the issuance of the date of resolution. The Government in the said resolution has also taken policy decision for determination of service condition i.e. for fixation of pay of teaching and non-teaching staffs will be made by the School and Mass Education Department under Rule 74 (d) of Orissa Service Code from the date of transfer w.e.f. 28.02.2004. The Government in the said resolution has also taken policy decision for determination of service condition i.e. for fixation of pay of teaching and non-teaching staffs will be made by the School and Mass Education Department under Rule 74 (d) of Orissa Service Code from the date of transfer w.e.f. 28.02.2004. While other service condition has been directed to be same at par with the regular Government employee, but so far as fixation of inter-se seniority the School and Mass Education Department has been authorized to take decision for fixation of the modalities for determination of the same. The School and Mass Education Department has come out with a decision on 30.06.2010 for fixation of inter-se seniority of the employees of the taken over Urban Local Bodies Schools transferred by the Housing and Urban Development Department, which shall be guided as per the provisions of Orissa Elementary Education (Method of Recruitment and Conditions of service of Teachers and Officers) Rules, 1997 and Orissa Subordinate Education (Method of Recruitment and conditions of Service) Rule, 1993 respectively with the concurrence of the General Administration Department vide resolution No.666/GAD dated 31.12.2009. As per the Orissa Subordinate Education (Method of Recruitment and conditions of Service) Rules, 1993 there is a provision under Rule 27 which relates to determination of seniority, as per which the provision has been made to determine the seniority of persons appointed to the Junior Grade Service both by way of direct recruitment and by promotion in a year shall be determined in the order in which their names appeared in the list prepared by the Committee in pursuance of Rules 14 and 15 respectively, provided that the persons appointed by promotion in a particular year en block rank above those appointed by direct recruitment in that year, provided further that the inter-se seniority of the persons included in the service by way of merger of other equivalent cadre of taken over High Schools shall be determined by taking into account the deemed date of appointment of the persons of taken over High Schools vis-à-vis, the date of appointment of the directly recruited Trained Graduate teachers under Sub-clause (i) of Clause (a) of Rule 4 with the explanation that the deemed date of appointment of persons of the taken over High Schools shall be calculated by computing 50% of the total Non-Government service rendered by concerned T.G. Teachers from the date of appointment against the post or from the date of recognition of the School by the Government whichever is later till the date of merger. The applicants being aggrieved with the decision of the School and Mass Education Department for fixation of inter-se seniority on the basis of explanation as contended in Rule 7 of Rules, 1993, have approached the Tribunal on the ground that when there is no fault on their part, it is the arbitrary decision of the authorities not to count 50 % of their past services rendered under the Urban Local Bodies, while they are also working under the category of public managed schools, which was directly under the control of Housing and Urban Development Department of the State Government. But after the decision is taken by the authorities on 28.02.2004 the ultimate control of Housing and Urban Development department has been shifted upon the School and Mass Education Department and as such there cannot be a material change by altering in the service condition, which is detrimental to the interest of the concerned employee. But after the decision is taken by the authorities on 28.02.2004 the ultimate control of Housing and Urban Development department has been shifted upon the School and Mass Education Department and as such there cannot be a material change by altering in the service condition, which is detrimental to the interest of the concerned employee. The Orissa Administrative Tribunal, after taking into the consideration the fact of the case and also the decision of this Court in a similar circumstances, has passed the order in favour of the applicants, which has been assailed by the State by way of W.P.(C) No.27744 of 2013 inter alia in the ground that there is no infirmity in the decision taken by the School and Mass Department on 30.06.2010 because the applicants were working prior to taking over under the Urban Local Bodies School and as such they cannot claim parity with the State Government Employees, under the resolution dated 28.02.2004 the School and Mass Education Department has been directed to fix the modalities and accordingly the modalities was fixed on 30.06.2010 by taking a decision to fix the inter-se seniority on the basis of the provision of Rule 27 of the Rules, 1993 and as such it cannot be said that the State authorities have taken arbitrary decision. 6. We after appreciating the arguments advanced on behalf of the parties are now answering the grounds which has been raised by the State before the Tribunal and the first ground being that applicants are not entitled for getting benefit since the Schools in question are taken over Schools and as such they cannot be given parity with regular Government School teachers. But this argument is not acceptable to us for the reason that taken over High Schools have been defined under the provision of Rules, 1993, which means that Private High Schools taken over by Government from time to time and it is only for this reason, the authorities have come out with a decision on 30.06.2010 regarding applicability of the provision of Rule 27 of the Rules, 1993. But what we have gathered from the pleadings and the record is that the applicants working under the Urban Local Bodies Schools, which were directly under the control of Housing and Urban Development Department having the same service condition as that of the teachers working under the Government Schools as would be evident from the resolution dated 28.02.2004 wherein it has been specifically stipulated that the transfer of left out Primary Schools of six Urban Local Bodies, directly under the control of Housing and Urban Development Department has been decided to be controlled and managed by the School and Mass Education Department for improvement of the service condition vis-à-vis to maintain the infirmity in the educational system in the State and that is the reason in the resolution dated 28.02.2004 it has been inserted that the pay and other service condition will be at par with the regular Government teachers directly under the control of School and Mass Education Department and as such it cannot be said that Schools run under the Urban Local Bodies were private High Schools, which has been taken over by the Government from time and on this ground only the argument advanced on behalf of the State by defending the decision of the School and Mass Education Department regarding applicability of the provision of Rule 27 of the Rules, 1993 is not worth to be accepted, accordingly rejected. 7. 7. So far as the second ground raised by the State that it is a case of taking over and as such the teachers / non-teaching staffs working under the schools controlled by the Local Bodies has rightly been given the inter-se seniority under the provisions of Rules, 1993 is also not worth to be accepted for the reason that the resolution dated 28.02.2004 clearly stipulates that the word ‘transfer’ and the contents of the said resolution is also for transfer of Lower Secondary and Secondary Schools of Urban Local Bodies to the School and Mass Education Department, which was under consideration before the Government and taking into the consideration the fact that the Primary School Teacher of the State has already been given the status of the Government employee w.e.f. 05.09.1989 and as such for betterment of Schools and service conditions of the employees working under 65 Lower Secondary (ME) and 82 Secondary Schools of Urban Local Bodies in the State, decision was taken to transfer this categories of Schools along with teaching and non teaching staffs to the administrative control of School and Mass Education Department and declared the teaching and non teaching staffs of these Schools as Government employees w.e.f. the date of issuance of the resolution. For better appreciation the part of the content of the resolution dated 28.02.2004 is being reproduced herein below. “Sub:- Transfer of the left out Primary Schools of six Urban Local Bodies, Lower Secondary and Secondary Schools of Urban Local Bodies to the School and Mass Education Department and declaring the Teaching and Non-teaching staff of these Schools as Government Servant. Transfer of Lower Secondary and Secondary Schools of the Urban Local Bodies to the School and Mass Education Department was under consideration of Government for some time past. Keeping in view the justification for improvement of service condition, the School and Mass Education Department vide their Resolution dtd.26.09.1989 have declared all the Primary School Teachers of the State as Government Employee w.e.f. 05.09.1989. Keeping in view the justification for improvement of service condition, the School and Mass Education Department vide their Resolution dtd.26.09.1989 have declared all the Primary School Teachers of the State as Government Employee w.e.f. 05.09.1989. Accordingly for betterment of Schools and service conditions of the employees working in 65 Lower Secondary (M.E) and 82 Secondary Schools of Urban Local Bodies in the State, Government have decided to transfer these categories of schools along with the teaching and non-teaching staff to the administrative control of School and Mass Education Department and declared the Teaching and Non-Teaching Staff of these Schools as Government Employees w.e.f. the date of issuance of the resolution.” We, after going through the contents of the resolution, are of the considered view that it is not a case of taken over by the Government rather it is a case of transfer of the teaching and non teaching staffs working under 65 Lower Secondary (ME) and 82 Secondary Schools of Urban Local Bodies, under the regular Government establishment and when their services have been transferred to the State Government then there is no reason to deny the benefit of the service rendered under the Schools of local bodies. There is no doubt about the fact that Government has taken a policy decision for transfer of the left out Primary Schools being run by the Urban Local Bodies under the State Government establishment but it is settled that if by virtue of a policy decision the services of employees is being transferred there cannot be change in the service condition, which is detrimental to the interest of the concerned employee. It is not the case where any option has been sought for from one or the other teaching / non teaching staffs for seeking an option to remain in the Urban Local Bodies or to go State Government Schools, if that would be a situation the argument of the State Government could have been accepted but that is not the case here rather it is a policy decision of transfer of the management of Urban Local Bodies Schools which were directly under the control of Housing and Urban Development and has been handed over to the School and Mass Education Department, which is the nodal department in the education in the State. We have been informed by learned counsel for the applicants that by virtue of the resolution dated 28.02.2004 the service condition of the employees working in 65 Lower Secondary (ME) Schools have also been handed over the State Government and the past services rendered by them so far it relates to determining the inter se seniority when decided not to be counted, they have approached the Tribunal by the Original Applications although the Tribunal has passed order against them, which was challenged by the aggrieved party before this Court in a series of Writ Petitions being W.P.(C) No.14979 of 2010 along with other analogous cases. Accordingly, this Court while deciding the Writ Petition by judgment dated 23.12.2011 has directed the State of Orissa to fix the inter se seniority of the teachers who were declared as Government servants on the strength of the resolutions of Government dated 26.09.1989 and 12.05.1982 by counting their past services for fixation of inter se seniority. We after going through the entire judgment passed in the Writ Petitions as referred above are of the considered view that there is no reason to deny the same benefit to the applicants for the reason that the occasion to file W.P.(C) No.14979 of 2010 was against the decision of the State Government which occurred due to not counting the past services rendered by the 65 Lower Secondary (ME) teachers, whose services have been transferred by virtue of the resolution dated 28.02.2004. But subsequently by virtue of the orders passed by this Court in the series of the Writ Petitions, they have been directed to be given the benefit of past services towards fixing the inter-se seniority and as such the applicants, whose services have also transferred by virtue of the State Government resolution dated 28.02.2004, there is no reason to deny this relief to them. 8. After having discussed the things as above and after going through the orders passed by the learned Tribunal, we are of the considered view that the learned Tribunal has taken into consideration the entire aspect of the matter and after discussing at length on the basis of factual and legal position has passed a well reasoned order. Hence there is no reason to interfere with the same. 9. Hence there is no reason to interfere with the same. 9. So far as W.P.(C) No.15806 of 2014 filed by the applicants is concerned, the Tribunal is directed to dispose of Contempt Petition No.269 of 2013 arising out of O.A No.1449 of 2011 as expeditiously as possible. Accordingly, the Writ Petition filed by the State is dismissed and the Writ Petition filed by the applicants is disposed of. S. PANDA, J. I agree. Petition dismissed.