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2016 DIGILAW 729 (ORI)

Sushant Kumar Behera v. State of Odisha

2016-09-01

BISWAJIT MOHANTY, I.MAHANTY

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JUDGMENT : BISWAJIT MOHANTY, J. 1. The petitioners have filed the writ application challenging the order dated 10.3.2015 passed by the Odisha Administrative Tribunal, Bhubaneswar under Annexure-3. They have further prayed that the order under Annexure-3 be quashed holding the same as illegal. 2. The facts of the case are as follows: The Government of Odisha in School and Mass Education Department vide Resolution dated 4.12.2013 (Annexure-2), decided to resolve the demand of Gana Sikshyaks working in the State in the manner as indicated in the said resolution. For our purpose, the relevant Paragraphs of the said Resolution are Paragraphs 2, 3 and 7. For the sake of convenience, the same are quoted hereunder: “xxx xxx xxx 2. The trained Ganasikshyaks with +2 or above academic qualification to be treated as Zilla Parishad Gr-II Teacher, after completion of 6 years of continuous and satisfactory service or after 3 years from completion of training which ever is later. The Zilla Parishad Ganasikshyaks, Gr-II to be allowed the consolidated remuneration of Rs.7,000/- per month. 3. Zilla Parishad Ganasikshyaks, Gr-II after completion of 3 years of continuous and satisfactory engagement to be eligible to become Zilla Parishad Teachers, in the Pay Scale of Rs.5,200-20,200/- with Grade pay of Rs.2,200/- with D.A. and other allowances as admissible from time to time. For this purpose, equivalent Level-V posts from Elementary Cadre shall be transferred to the Zilla Parishads. Statutory EPF would be considered. xxx xxx xxx 7. Ganasikshyaks belonging to the category of Scheduled Caste, Scheduled Tribe and Physically Handicapped, having requisite academic qualification (+2 and above) to be considered for Zilla Parishad Teachers after completion of 6 years as Ganasikshyak. But the regularisation will be deferred till the date of acquiring requisite training qualification. However, they may get the benefit of Zillaparishad Teacher with retrospective effect i.e., from the date of completion of 6 years. Nevertheless the date of acquiring training and academic qualification shall not be beyond 31.03.2015 in view of the provisions of the RTE Act.” 3. Challenge the condition of three years from completion of training as stipulated in Paragraph-2 of the Resolution dated 4.12.2013 (Annexure-2) and with a prayer to consider the case for her regularisation as Zilla Parishad Grade-II teacher, one Basantilata Behera filed W.P. (C) No. 8439 of 2014 before this Court. Challenge the condition of three years from completion of training as stipulated in Paragraph-2 of the Resolution dated 4.12.2013 (Annexure-2) and with a prayer to consider the case for her regularisation as Zilla Parishad Grade-II teacher, one Basantilata Behera filed W.P. (C) No. 8439 of 2014 before this Court. The said writ application was disposed of on 14.5.2014 with the following observations: “Considering the contentions raised by the parties and after going through the records, it appears that the petitioner has gained experience by discharging her duty as Gana Sikshyak for a period of near about six years and is otherwise eligible to be absorbed as a regular teacher. As it is a matter of principle the Government has decided that the Scheduled Castes and Scheduled Tribes candidates will be absorbed to the category of regular teachers after completion of six years continuous service as Gana Sikshyak, but the general candidates who have six years of continuous service as Gana Sikshyak and having requisite qualification will be debarred from getting the benefit. Therefore, the general candidates have been discriminated. The Government may give preference to the Scheduled Castes and Scheduled Tribes candidates but that does not mean that the general candidates who satisfy the requirement for absorption as regular teachers should not be discriminated. The petitioner has made grievance before opposite party no.1 vide Annexure-8 which is still pending for consideration. In that view of matter, this Court disposes of the writ petition directing opposite party no.1 to dispose of the representation filed by the petitioner under Annexure-8 in accordance with law within a period of three months from the date of communication of this order.” 4. In compliance of the above noted order, the case of the petitioner of W.P. (C) No. 8439 of 2014 was however rejected. It may also be noted here that several O.As were filed with a prayer to quash Paragraphs-2 and 3 of the Resolution dated 4.12.2013 (Annexure-2) on the ground that the same being contradictory to the benefits extended in Paragraph-7 of the above noted Resolution to un-trained and trained Scheduled Castes/Scheduled Tribes/Physical Handicapped Gana Sikshyaks. It may also be noted here that several O.As were filed with a prayer to quash Paragraphs-2 and 3 of the Resolution dated 4.12.2013 (Annexure-2) on the ground that the same being contradictory to the benefits extended in Paragraph-7 of the above noted Resolution to un-trained and trained Scheduled Castes/Scheduled Tribes/Physical Handicapped Gana Sikshyaks. Those host of Original Application were disposed of by the Tribunal on 10.3.2015 under Annexure-3 holding that the classification among the Gana Sikshyaks belonging to General category and those belonging to Scheduled Castes/Scheduled Tribes/Physical Handicapped categories relating to benefits of regularisation violates Article-14 of the Constitution of India and is discriminatory and such classification does not satisfy the criteria fixed by the Hon’ble Supreme Court. Accordingly, learned Tribunal directed the State respondents to issue appropriate orders modifying the Resolution dated 4.12.2013 (Annexure-2) so as to bring the same in tune with provisions of Constitution of India. Challenging the said order, the present writ application has been filed. It may be noted here that the State has filed no application challenging the order dated 10.3.2015 passed under Annexure-3. During pendency of the present writ application, vide Resolution dated 25.2.2016, the Government of Odisha in School and Mass Education Department withdrew the resolution under Annexure-2 covering Carrier Advancement Policy of Gana Sikshyaks. Further vide resolution No. 14467/SME, dated 25.7.2016, XIII-SME-AE-06/2016 the Government of Odisha in School and Mass Education Department has made it clear that Gana Sikshyaks who have +2/Degree qualification with either C.T./B.Ed and who have completed 8 years of continuous and satisfactory engagement shall be regularised as Elementary Level-V teachers in the year 2016-17 after detail modalities on regularisation are worked out by the Government in School and Mass Education Department. It has also been made clear that on regularisation as Elementary Level-V teachers, they would be entitled to salary in the pay scale of Rs.5,200-20,200/- with Grade Pay of Rs.2,200/- with D.A. and other allowances as admissible from time to time and Gana Sikshyaks having no requisite academic qualification of +2/Degree and training qualification of either C.T. and B.Ed shall not be regularised as Elementary Level-V teachers. 5. Heard Mr. G.A.R. Dora, learned Senior Counsel for the petitioners, Mr. S. Mohapatra, learned Standing Counsel for School and Mass Education Department and learned counsel for the intervenors. 6. Mr. 5. Heard Mr. G.A.R. Dora, learned Senior Counsel for the petitioners, Mr. S. Mohapatra, learned Standing Counsel for School and Mass Education Department and learned counsel for the intervenors. 6. Mr. Dora, learned Senior Counsel for the petitioners submitted that the Government was justified in providing the relaxed eligibility criteria as provided under Paragraph-7 of the Resolution in case of Scheduled Castes/Scheduled Tribes/Physical Handicapped categories candidates under Annexure-2 as these categories always required to be differently treated. In this context, he relied on a decision of the Hon’ble Supreme Court in S.S. Sharma and others v. Union of India and others, 1980 (3) SLR 511. He further submitted that since qualified Scheduled Castes/Scheduled Tribes/Physical Handicapped categories candidates are not available to fill up the reserved category post, the State-opposite parties have rightly provided relaxed criteria under Paragraph-7 of resolution dated 4.12.2013 under Annexure-2 and the same cannot be termed as discriminatory. In such background, he prayed that the impugned order be quashed and petitioners be allowed the benefits as per Annexure-2. 7. Mr. S. Mohapatra, learned Standing Counsel, on the other hand, submitted that the impugned order under Annexure-3 passed by the learned Tribunal cannot be faulted and pursuant to the same, the Government of Odisha in School and Mass Education Department vide Resolution No. 4168/S & ME XVII-SME-LC-II-35/2015 dated 25.2.2016 has already withdrawn the Resolution under Annexure-2 and further vide Resolution No. 14467/SME, XIII-SME-AE-06/2016 dated 25.7.2016, the State Government has come out with far better and uniform Career Advancement Policy for Gana Sikshyaks which makes it clear that Gana Sikshyaks who have +2/Degree qualification with either C.T./B.Ed. and who have completed 8 years of continuous and satisfactory engagement will be regularised as Elementary Level-V teachers in the year-2016-17 after detail modalities on regularisation are worked out by the Government. In view of the Resolution dated 25.2.2016 and 25.7.2016, according to Mr. Mohapatra, learned Standing Counsel for School and Mass Education Department, the writ application has become infructuous as the Resolution dated 4.12.2013 under Annexure-2 which Mr. Dora, learned Senior Counsel for the petitioners defending has already been withdrawn on 25.2.2016. Such stand of Mr. Mohapatra was supported by learned counsel appearing for the intervenor-opposite parties. 8. With regard to the contentions of by Mr. Dora, learned Senior Counsel for the petitioners defending has already been withdrawn on 25.2.2016. Such stand of Mr. Mohapatra was supported by learned counsel appearing for the intervenor-opposite parties. 8. With regard to the contentions of by Mr. Dora, learned Senior Counsel for the petitioners defending the relaxed eligibility criteria provided under Paragraph-7 of the Resolution dated 4.12.2013 under Annexure-2 as justified, we are unable to accept such a contention. This is because in the instant case, relaxation of such eligibility criteria with regard to Scheduled Castes/Scheduled Tribes/Physical Handicapped categories candidates at Paragraph-7 is not vis-a-vis the same positions/posts as covered Paragraphs-2 and 3 of Annexure-2. While Paragraph-2 provided for treating Gana Sikshyaks as Zilla Parishad Grade-II Teachers on their fulfilling the requirements indicated therein, the paragraph-3 dealt with the modalities for making such Grade-II Teachers as Zilla Parishad Teachers. In sharp contrast as per Paragraph-7, the Gana Sikshyaks belonging to categories of Scheduled Castes/Scheduled Tribes/Physical Handicapped were allowed to be directly considered for the post of Zilla Parishad Teachers. There, there existed no provision relating to Grade-II Teachers, i.e., the intermediate stage as has been provided for unreserved categories candidates under Paragraphs-2 and 3 of Annexure-2. Thus, whereas the unreserved category of Gana Sikshyaks would be made Zilla Parishad Teachers only after they have become Zilla Parishad Grade-II Teachers but in case of Scheduled Castes/Scheduled Tribes/Physical Handicapped category candidates vide Annexure-7 subject to the condition provided therein could be made Zilla Parishad Teachers directly skipping the stage of Zilla Parishad Grade-II Teachers. Thus, under paragraph-7, the Scheduled Castes/Scheduled Tribes/Physical Handicapped category candidates were getting double benefits in a single stroke which was denied to Gana Sikshyaks of unreserved category as would be clear from a reading of Paragraphs-2 to 7 of Annexure-2. This is a clear case of hostile discrimination against un-reserved category of Gana Sikshyaks without any rationale. Further, under Paragraph-7 even the Gana Sikshyaks belonging to Scheduled Castes/Scheduled Tribes/Physical Handicapped category were entitled to get benefit of Zilla Parishad Teacher simply on completion of 6 years of service, though their services would not be regularised unless they acquire the training and academic qualification. But such benefit was not extended to Gana Sikshyaks of unreserved category. Further, under Paragraph-7 even the Gana Sikshyaks belonging to Scheduled Castes/Scheduled Tribes/Physical Handicapped category were entitled to get benefit of Zilla Parishad Teacher simply on completion of 6 years of service, though their services would not be regularised unless they acquire the training and academic qualification. But such benefit was not extended to Gana Sikshyaks of unreserved category. All such provisions were made without any rational nexus with the object sought to be achieved, i.e. to give adequate representations to Scheduled Castes/Scheduled Tribes/Physical Handicapped category in the Elementary Cadre at Level-V. This is because as the learned Tribunal has rightly observed that there is no quantifiable data to show the percentage of teachers belonging Scheduled Castes/Scheduled Tribes/Physical Handicapped category candidates in the Elementary Cadre at Level-V or among the Gana Sikshyaks who are sought to be regularised. In fact, there exists no quantifiable data on record showing percentage of reserved category teachers at Elementary Cadre Level-V falling short of the required percentage for such categories. Thus, there was no rationale for making special provisions under Paragraph-7 for candidates belonging to Scheduled Castes/Scheduled Tribes/Physical Handicapped categories. Therefore, the submission of Mr. Dora on this aspect is without any merit. With regard to the decision cited by Mr. Dora in the case of S.S. Sharma (supra), we are of the view that the same is factually distinguishable and has no application to the present case. In that case, the petitioners challenged the validity of Central Secretariat Service (Amendment) Rules, 1979 and also the Regulation consequent thereupon for the purpose of holding a departmental competitive examination only of the candidates belonging to S.C. and S.T. for filling up the vacancies reserved for these categories of Grade-I Central Secretariat Service. Such challenge was repelled by Hon’ble Supreme Court. In that case in the normal process of selection for promotion to Grade-I post while unreserved vacancies were filled up, 27 vacancies reserved for the members of S.C. and S.T. community could not be filled up as no candidate belonging to those category was found suitable for the purpose of filling up those reserved posts. Accordingly, the Government of India decided to hold a limited departmental examination confining the same to the members of S.C. and S.T. with relaxed conditions of eligibility. Accordingly, the Government of India decided to hold a limited departmental examination confining the same to the members of S.C. and S.T. with relaxed conditions of eligibility. In that case the petitioners case was that Government of India was not empowered to fill up the vacant reserved posts by taking recourse to a departmental competitive examination and instead Government should have de-reserved the vacancies and made those vacancies available to candidates falling under general categories so that the petitioners could have been considered for promotion. In that case, eligibility requirement for criteria was relaxed in order to fill up vacant posts of S.C. and S.T. category. In the present case, there exists no such quantifiable data on vacancy position vis-a-vis posts reserved for Scheduled Castes/Scheduled Tribes/Physical Handicapped category candidates in Elementary Level-V cadre which the State is not able to fill up in normal process. Therefore, the ratio decided in the said case is not applicable to the present case. Further in that case there was no question of granting double benefits to the S.C. and S.T. candidates at one go unlike the present case. Therefore, with great respect, ratio of the decision S.S. Sharma (supra) has no application to the present case. Even otherwise, this Court is of the view that since the Resolution dated 4.12.2013 under Annexure-2 which the petitioners are defending has been already withdrawn by the Government of Odisha in School and Mass Education Department vide its Resolution dated 25.2.2016, the substratum of the case of the petitioner has vanished. It may be noted here that though the Tribunal directed for modification of the Resolution dated 4.12.2013 under Annexure-3, however, the said Resolution has been withdrawn by the State Government vide Resolution dated 25.2.2016. Further, the Government has issued a new Resolution dated 25.7.2016 governing the Career Advancement Policy for Gana Sikshyaks and the same is in force. For all these reasons, we are not inclined to interfere with the matter. Accordingly, the writ application stands dismissed. No cost.