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2016 DIGILAW 263 (ORI)

Surendra Mohan Ota v. State of Orissa

2016-04-04

B.K.DASH

body2016
ORDER : B.K. Dash, J. The applicant who is a retired Headmaster, Primary School, has challenged the order dtd. 30.12.2006, rejecting his representation against the order of reversion dtd. 20.1.2003 vide Annexure-3 with a prayer to direct the concerned authorities to calculate his pension and other post retiral dues in the scale of pay of Head Pandit. 2. Case of the applicant, in brief, is that he was initially appointed as Assistant Teacher in the Primary School on 22.11.1968 in the undivided district of Bolangir which was subsequently renamed as Subarnapur district, after creation of new district. As to his qualification, the applicant is Matric with C.T. training. The applicant was promoted to the post of Head Master vide order No. 1 0015 dtd. 24.9.1988 of the D.I. of Schools, Sonepur and continued as such till his retirement on 31.3.2007. It is averred that prior to 1983 though teachers with Matric C.T. and Non-Matric C.T. qualifications were eligible to be appointed as Primary School Teachers, however, two separate gradation lists were maintained one for Matric C.T. and other for Non-Matric E.T. As the teachers with Matric C.T. qualifications were only considered for promotion to the post of Headmaster in the U.P. School, the Non-Matric E.T., teachers approached the Hon'ble Court to extend them similar benefit as Matric C.T. teachers. Ultimately, the matter was set at rest by the Hon'ble Supreme Court in Civil Appeal No. 7155/1993 with a direction to treat both class of teachers equally and there should be one common gradation list. Their promotion should be considered on the basis of seniority as per the date of appointment. Hon'ble Apex Court further directed that the Matric C.T. teachers, who have already been promoted as Headmaster/Head Pandits should be allowed to continue in the post of Headmaster in view of the fact that during last several years more vacancies must have occurred. In violation of the said order of the Hon'ble Supreme Court, the applicant and many other teachers have been reverted vide order dtd. 20.1.2003 from the post of Head Pandits to the post of Assistant teachers. However, the said order of reversion was never implemented and the applicant was allowed to continue in the post of Head Pandit till his retirement. 20.1.2003 from the post of Head Pandits to the post of Assistant teachers. However, the said order of reversion was never implemented and the applicant was allowed to continue in the post of Head Pandit till his retirement. Being aggrieved by the order of reversion, the applicant and similarly situated persons filed O.A. No. 1043/2003 in the Tribunal, which was disposed of at the stage of admission, with a direction to Opposite Party no. 1 to take a decision on the representation of the petitioners for allowing them to continue in the post of Head Pandits and in compliance of the said order, the applicant submitted a representation, but without considering the said representation under proper perspective following the decision of the Hon'ble Supreme Court, rejected the grievance of the applicant and others as per the order dtd. 30.12.2006. It is averred that the order rejecting his representation is not in accordance with the direction of the Hon'ble Supreme Court. The applicant has also shown that he has been allowed to continue as Headmaster till his retirement and therefore, he has approached this Tribunal to quash the order of reversion and the order rejecting his representation and consequently to fix his pension and other retiral dues, on the basis of the last pay drawn as Headmaster. 3. Respondent No. 3 filed counter admitting the factual aspect of the case that the applicant was appointed as Asst. Teacher on 22.11.1968, promoted to the post of Head Pandit on 19.11.1988 and retired on superannuation from Government service on 31.1.2007. It is further averred that the applicant, was reverted to the post of Asst. Teacher on 20.1.2003 and again promoted to the post of Head Pandit on 16.12.2001. It is further averred that pursuant to the direction of the Hon'ble Supreme Court, as distinction between Matric and Non-Matric teachers of Primary School was removed, as per the Notification dtd. 25.6.1988, the district wise seniority list was prepared in respect of Matric and Non-Matric Primary School teachers on the basis of their training seniority and suitability. As per the direction of the Hon'ble Supreme Court, the Matric teachers already promoted to the post of Head Pandit should be allowed to continue without reversion, but as the promotion of the applicant was after 25.6.1988, he was reverted vide order dtd. As per the direction of the Hon'ble Supreme Court, the Matric teachers already promoted to the post of Head Pandit should be allowed to continue without reversion, but as the promotion of the applicant was after 25.6.1988, he was reverted vide order dtd. 20.1.2003 and was not allowed to continue as Headmaster, till his retirement, as claimed by him. Further as per the instruction of the Director of Elementary Education, a combined gradation list of Matric C.T. and Non-Matric C.T. teachers were prepared as on 25.6.1988, which was duly approved by the Inspector of Schools, Bolangir vide letter No. 9510 dtd. 10.8.1998. The Matric C.T. teachers, who were promoted to the post of Head Pandit with effect from September, 1988, out of the gradation list of 2.6.1988 and continuing as such were included in the gradation list of Asst. teachers. The order of promotion was issued in respect of 65 teachers, out of said gradation list against the vacant posts of Headmasters prior to 12.8.1997, without reverting the Matric C.T. Headmasters. On the other hand, the Matric C.T. teachers promoted earlier as Headmaster and continuing as such have not been issued with continuance order following the direction of the Hon'ble Supreme Court. No order of reversion have been passed on the day 65 senior teachers were promoted, from which it is clear that there was no difficulty to absorb Matric C.T. Head Pandits against the post of Headmasters in which they were continuing since 1998. While 65 senior teachers were promoted and 68 Matric C.T. Head Pandits were continuing as such, they (68 Matric C.T. teachers) approached the Hon'ble High Court in O.J.C. No. 3285/98, 3286/98, and 3576/95) apprehending reversion as their names were enlisted in the gradation list of Asst. teachers and the Hon'ble Court passed interim order not to revert them. In spite of such order of the Hon'ble Court, the D.I. of Schools, promoted 68 E.T. teachers vide order No. 793 dtd. 11.3.1999 and 812 dtd. 15.3.1999 by reverting Head Pandits. In view of such order one Abhimanyu Das and other E.T. teachers who were promoted to the post of Head Pandits on 11.3.1999 against the vacancies occurred due to reversion of Matric C.T. Head Pandits filed OJC No. 11102/2001 and in O.A.T. P.P. No. 154 (c)/2001, where the Hon'ble High Court vide order dtd. 15.3.1999 by reverting Head Pandits. In view of such order one Abhimanyu Das and other E.T. teachers who were promoted to the post of Head Pandits on 11.3.1999 against the vacancies occurred due to reversion of Matric C.T. Head Pandits filed OJC No. 11102/2001 and in O.A.T. P.P. No. 154 (c)/2001, where the Hon'ble High Court vide order dtd. 7.12.2001 directed to implement the orders of the Hon'ble Supreme Court passed in Civil Appeal No. 7155/1993. Thereafter the D.I. of Schools, vide his letter No. 608 dtd. 19.2.2002 sought clarification from the Government and accordingly instruction was issued to implement the order of the Hon'ble Court, specifically stating that 25.6.1988 was the effective date to give effect to the promotion of Asst. teachers in each district and the Matric Head Pandit/Headmasters whose names do not find place in the gradation list, shall not continue as such and are to be reverted. Accordingly the applicant was reverted to the post of Asst. teacher. Thus, it is averred that there has been no infraction or violation of the order of the Hon'ble Supreme Court and the grievance of the applicant merits no consideration and accordingly liable to be rejected. 4. Considering the pleadings of the applicant as well as respondent No. 3, it appears that the applicant was appointed as Asst. teacher on 22.11.1968, promoted as Head Pandit on 19.11.1988 and retired on superannuation on 31.7.2007. Pursuant to the order of the Hon'ble Supreme Court in Civil Appeal No. 7155/1993 order of reversion was issued on 20.1.2003. The applicant has asserted that the said order of reversion has not been implemented and he continued as such till his retirement. Learned Counsel for the applicant submitted that the Hon'ble Supreme Court in their order have specifically directed not to revert the Headmasters who have already been promoted and as far as possible, the Matric C.T. teachers promoted as Head Pandits, should be allowed to continue without reversion. Learned Counsel submitted that even though the order of reversion was passed in 2003, yet when the said order has not been given effect to, the applicant shall be deemed to be Headmaster till his retirement. Learned Counsel submitted that even though the order of reversion was passed in 2003, yet when the said order has not been given effect to, the applicant shall be deemed to be Headmaster till his retirement. Learned Counsel specifically referring to the averments in para-7 of the Counter submitted that no order of reversion has been passed on the date promotion orders were issued in respect of 65 senior teachers and it was averred that there was no difficulty to accommodate the Matric C.T. teacher/Head Pandits against the post of Headmaster in which they continued since 1988. The applicant has referred to a number of correspondences vide Annexure-7, 8, 9 & 10 submitted that the order of reversion vide Annexure-3 has never been given effect to and the applicant continued as such till his retirement and therefore, he is entitled to pensionary benefits on the basis of the last pay drawn in the post of Headmaster/Head Pandit. 5. Respondent No. 3 in para-7 of the counter has stated as follows: "7. The District Inspector of Schools had neither passed as, order of continuation to the C.T. teachers, nor reverted them back to the post of Assistant Teachers on the date of promotion to 65 senior teachers, which clearly seems that there was no difficulties to absorb the Matric C.T. Head Pandits against the post of Headmasters in which they were continuing since 1988." 6. The averment that no reversion order has been issued is not consistent with the order of reversion vide Annexure-3 dtd. 20.1.2003. Be that, as it may, after the order of reversion vide Annexure-3 and order rejecting his representation vide Annexure-3 and order rejecting his representation vide Annexure-6 was passed, no further order has been issued either posting of the applicant as an Asst. Teacher or he joined in the said post. On the other hand, notice for retirement vide Annexure-2 has been issued to the applicant as Headmaster level-IV. From this order dtd. 31.1.2007, it appears that the applicant retired from Government service on superannuation as Headmaster, Chanda Harijanpada Primary School. These documents clearly show that the order of reversion has neither been given effect to and the applicant retired as Headmaster/Head Pandit. 7. Now the question that requires consideration is whether the applicant is entitled to retiral benefits in the scale of pay of the post of Headmaster or not. 8. These documents clearly show that the order of reversion has neither been given effect to and the applicant retired as Headmaster/Head Pandit. 7. Now the question that requires consideration is whether the applicant is entitled to retiral benefits in the scale of pay of the post of Headmaster or not. 8. It is not disputed that the applicant is covered under the OCS (Pension) Rule 1992 and as per Rule 48: emoluments for calculation of pension shall be the emoluments as defined in Rule 2(1)(e) which the Government servant was receiving immediately before his retirement. Emoluments as per Rule 2(e) means the basic pay as defined in Rule 33(a)(i) of the Orissa Service Code which the Government servant was receiving immediately before retirement or on the date of death and includes. 9. From the above definition of emoluments it is clear that the pension of, the applicant is to be calculated on the basis of the basic pay, which he was receiving immediately before retirement i.e. on 31.7.2007. Since the applicant has already retired from Government service as Headmaster, he is entitled to the retiral benefits in the scale of pay of Headmaster. 10. In view of the discussions and as the order of reversion has never been given effect to, I am not inclined to discuss with regard to the propriety of the impugned order passed but observe that the applicant is entitled to pension and other retiral dues in the scale of pay of Headmaster. Accordingly, the pension of the applicant be fixed in the scale of pay of Headmaster which he was drawing on the date of his retirement and consequential benefits such as leave salary, DCRG be calculated and disbursed to him, if not already disbursed in the meantime, within a period of four months from the date of receipt of a copy of this order. With these orders, the O.A. is disposed of. Send copies. O.A. disposed of.