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2017 DIGILAW 1307 (ORI)

Debendra Kumar Dalei v. State of Odisha

2017-11-14

BISWAJIT MOHANTY

body2017
JUDGMENT : BISWAJIT MOHANTY, J. 1. The present writ application has been filed by the petitioner with a prayer to quash his order of transfer dated 6.7.2017 under Annexure-5 passed by opp. party No.4. 2. The case of the petitioner is that he was engaged as Gana Sikshyak by the order of opp. party No.2 issued on 31.5.2008 vide Annexure-1. While so continuing, the petitioner acquired C.T. qualification on 20.1.2014. Vide Annexure-4, the Government of Odisha in School and Mass Education Department issued a resolution on 25.7.2016 wherein it was made clear that a Gana Sikshyak with +2/Degree qualification with either C.T./B.Ed and who has completed 8 years of continuous and satisfactory engagement shall be regularized as “Elementary Level-V Teacher” and on regularization, the Elementary Level-V Teacher would be allowed pay scale of Rs.5,200-20,200 with Grade Pay of Rs.2200/-with D.A. and other allowances. The petitioner has not yet been regularized as Elementary Level-V Teacher and he continues to work as Gana Sikshyak. On 17.6.2017, the Government of Odisha in Department of School and Mass Education vide Annexure-3 issued an order on the subject of “Rationalization of Elementary Teachers in Government Primary and Upper Primary Schools during Academic Session 2017-18”. The said order makes it clear that rationalization in Elementary Teachers posted in Elementary Institution through out the State is to be taken up in the following manner: (a) A second teacher is to be posted in schools having single teacher and (b) At least one Graduate Science Teacher and one Graduate Arts Teacher in each Upper Primary School having Class-VIII are to be posted. In case of non-availability of adequate number of Graduate Science Teachers in the district, +2 Science teachers are to be posted in Upper Primary Schools to ensure that no Upper Primary School is left without a Science teacher. The above noted posting is to be done by the District Level Transfer Committee. It is the case of the petitioner that this resolution under Annexure-3 has no application to him as he is not an Elementary Teacher. He is only a Gana Sikshyak. Notwithstanding such position making use of the Government order under Annexure-3, the petitioner has been transferred on 6.7.2017 vide Annexure-5 to Bajedhanua Primary School. Challenging such transfer, the petitioner has filed the present writ application. 3. Mr. He is only a Gana Sikshyak. Notwithstanding such position making use of the Government order under Annexure-3, the petitioner has been transferred on 6.7.2017 vide Annexure-5 to Bajedhanua Primary School. Challenging such transfer, the petitioner has filed the present writ application. 3. Mr. Rath, learned Senior Counsel appearing for the petitioner submitted that as indicated earlier, Annexure-3 only applies to Elementary Teachers and not to Gana Sikshyak. Thus, the petitioner, a Gana Sikshyak could not have been transferred while implementing the rationalization policy of the Government under Annexure-3. The petitioner can only be transferred after he is regularized as Elementary Level-V teacher/Elementary Teacher. The authorities cannot make use the order of the Government under Annexure-3 to transfer him on the ground of rationalization of posting of Elementary Teachers. Therefore, according to Mr. Rath, transferring the petitioner from Jagannathpur Upper Primary School to Bajedhanua Primary School making use of the Government letter dated 17.6.2017 under Annexure-3 is legally impermissible. Therefore, the order of transfer passed by opp. party No.4 under Annexure-5 is wholly without jurisdiction and is liable to be quashed. Further, Mr. Rath, learned Senior Counsel relied on a decision of this Court in the case of Hemanta Kumar Ghadei v. State of Odisha and others reported in 2016 (Supp.-I) OLR-1051, wherein it has been emphasized that rationalization policy does not cover transfer/ deployment order of Gana Sikshyaks. 4. Mr. Samal, learned Standing Counsel for School and Mass Education Department submitted that invoking the power under Annexure-3, a Gana Sikshyak can be transferred as a Gana Teacher is an Elementary Teacher and is covered under rationalization programme. Thus, the impugned order of transfer has been correctly issued relying on the Government order under Annexure-3. 5. From the contentions made by the respective parties, it is required to be seen as to whether a Gana Sikshyak can be transferred using Annexure-3 and whether a Gana Sikshyak be described as an Elementary Teacher so as to be covered by the Government order under Annexure-3 which speaks of rationalization of posting of Elementary Teachers. Admittedly, the petitioner is presently working as a Gana Sikshyak. The resolution of the Government in School and Mass Education Department dated 25.7.2016 under Annexure-4 makes it clear that a Gana Sikshyak with the required qualification and on completion of 8 years of continuous and satisfactory engagement will be regularized as an Elementary Level-V teacher/Elementary Teacher. Admittedly, the petitioner is presently working as a Gana Sikshyak. The resolution of the Government in School and Mass Education Department dated 25.7.2016 under Annexure-4 makes it clear that a Gana Sikshyak with the required qualification and on completion of 8 years of continuous and satisfactory engagement will be regularized as an Elementary Level-V teacher/Elementary Teacher. Secondly, it is not disputed that the Orissa Elementary Education Service Level-V consists of posts of Assistant Teachers of Government Primary School and Government Upper Primary Schools and not Gana Sikshyaks as provided under the Orissa Elementary Education (Method of Recruitment and Conditions of Services of Teachers and Officers) Rules, 1997, for short, “1997 Rules”. It has also been admitted by opp. party No.4 in its counter at Paragraph-6 that Elementary Level-V teacher post is only meant for Assistant Teachers. Admittedly, the petitioner is not an Assistant Teacher as his engagement has not yet been regularized as Elementary Level Teacher. Thus, he continues to be a Gana Sikshyak and cannot be described as an Elementary Teacher. In such background, this Court is of the opinion that the Circular under Annexure-A/3 has no application to a Gana Sikshyak like the petitioner. It only applies to Elementary Teachers and as indicated earlier, the petitioner is yet to become an Elementary Teacher even in the lowest grade, i.e., Elementary Level-V teacher, who is usually described as Assistant Teacher. In such background, this Court has no hesitation to come to a conclusion that the impugned order of transfer under Annexure-5 which has been issued invoking the Circular under Annexure-3 is clearly a product of arbitrary exercise of power. The opp. party No.4 could not have invoked the rationalization order of the Government under Annexure-3, which is applicable only to Elementary Teachers. Apart from this, this Court in its judgment rendered in Hemanta Kumar Ghadei (supra) has noted the circular issued by the Government of Orissa in its School and Mass Education Department on 18.5.2013 to all Collectors-cum-C.E.Os, Zilla Parishads with regard to rationalization of posting of Elementary Teachers/Zila Parishad Teachers/Sikhya Sahayakas and Gana Sikshyaks working in Government Primary and Upper Primary Schools wherein it has been made clear that though in few districts Gana Sikshyaks/Sikhya Sahayakas have been transferred, however, transfer of these category of teachers is highly objectionable. 6. 6. For the above noted reasons, the impugned order of transfer dated 6.7.2017 under Annexure-5 transferring the petitioner from Jagannathpur Upper Primary School to Bajedhanua Primary School being a product of an arbitrary exercise of power is hereby quashed and it is directed that the petitioner shall be allowed to continue in Jagannathpur Upper Primary School with all consequential benefits as due and admissible in accordance with law. The writ application is accordingly allowed and disposed of as such.