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2017 DIGILAW 419 (ORI)

State of Odisha v. Dolly Priyabadini Tripathy

2017-04-18

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. 1. This These writ petitions involving similar issue, have been listed together for analogous hearing, according the cases have been heard together and the same are being disposed of by this common order. These writ petitions having been filed under Articles 226 and 227 of the Constitution of India assailing the order passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in original applications wherein the grievance of the applicants to bring them to the secondary cadre and extend them the benefits of promotion to the Jr. SES cadre with effect from 28.9.2006., has been directed to be granted. The State of Odisha, being aggrieved with the order, is before this court challenging the same. 2. The brief facts of the case is that the applicants were appointed as Asst. Teachers in different Government M.E. School vide order issued in that regard on various dates, they joined under the LSES post, hence they claim to be treated as employee in the secondary cadre. The case of the applicants is that after the Elementary Cadre Rule 1997 came into force with effect from 12.08.1997, option was called for from teachers of secondary cadre continuing in the elementary cadre, accordingly, the applicants submitted their options to be reverted back to the secondary cadre, as by then, they were working in the M.E. Schools, but no action was taken as per their options. The initial appointment of the applicants were made by the Circle Inspector of Schools in M.E. Schools against the LSES posts, hence there was no scope of treating them as teachers in elementary cadre and after the Elementary Cadre Rule came into force, the applicant are to be reverted and treated as teachers in the secondary cadre. The further case of the applicants is that the Asst. Teachers of the High Schools having M.C.T. post constitute cadre of LSES and the Circle Inspector of Schools was the appointing authority prior to the elementary cadre came into force. Though the applicants exercised option since long, no action has been taken. The applicants approached the Tribunal for getting relief on the ground that in a similar case i.e. in O.A. No.4119(C) of 2000 the Tribunal has directed to treat the applicant of that case as a teacher in secondary cadre and give him benefit of promotion to the Jr. SES cadre w.e.f. 28.9.2005. The applicants approached the Tribunal for getting relief on the ground that in a similar case i.e. in O.A. No.4119(C) of 2000 the Tribunal has directed to treat the applicant of that case as a teacher in secondary cadre and give him benefit of promotion to the Jr. SES cadre w.e.f. 28.9.2005. The applicants claim similar benefit. The ground raised by the applicants before the Tribunal that as per the Explanation in Rule 15(5)(c)(iii)(b), persons who belong to the Orissa Sub-ordinate Education Service and now have been working in various categories of posts of the service under the Directorate of Elementary Education shall be called upon to exercise their option to come over to the Elementary Cadre and they shall be fitted into respective levels of cadre. The tribunal, after taking into consideration the provision of the Elementary Cadre Rule, 1997, having not been disputed by the learned State counsel representing the State of Orissa before the Tribunal, has passed the order allowing the original applications directing the respondents-authorities to consider the option of the applicants exercised under Rule 15 of the Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997, (herein after referred to as the Rules, 1997) and bring them over to the secondary cadre as per their eligibility and regularize their services as against any available vacancies in LSES cadre in their respective Education circle and thereafter extend consequential benefits of promotion to the Jr. SES cadre with effect from their immediate juniors got such promotion. 3. The learned counsel representing the appellants have submitted that the similar issued fell for consideration before this Court in a writ petition being W.P.(C) No.5696 of 2016 and this court, while dismissing the writ petition vide order dtd.5.4.2017, has approved the order passed by the Tribunal and on the strength of the said order, it has been submitted that these writ petitions may also be dismissed since the same issue is involved in these cases. 4. Learned counsel appearing for opposite party–School and Mass Education Mr. 4. Learned counsel appearing for opposite party–School and Mass Education Mr. D. R. Mohapatra has submitted that these writ petitions have been filed assailing the order passed by the Tribunal on the ground that the Tribunal has passed order without examining the factual as well as the legal aspect to the fact that the order passed by the Tribunal in O.A. No.4119(c) of 2000 is entirely on different footing having no applicability in the facts and circumstances of the instant cases, but without taking into consideration this aspect of the matter, the original application has been allowed. The further ground has been taken that even after enactment of the Rules, 1997 all promotions were carried out in the year 2006, 2011 and 2014 in the respective secondary cadre and as such if the impugned order will be allowed to operate, the same will unsettle the settle position in the process of promotion and consequently the same will result in multiplicity of litigation. 5. We have heard the learned counsels for the parties and perused the documents available on record. The whole issue involved in this case is regarding applicability of the provision as contained in Rules, 1997 to exercise their options as provided under Rule 15 Explanation-III(b). 6. We have examined the statutory provision as provided under the provision of Rule 15, Explanation-III (a), (b) and (c) of the Rules, 1997 which is being reproduced herein below:- “(a) All persons now working as regular Headmaster/headmistresses of Government Upper Primary Schools, junior coordinators (Non-Formal Education) and Sub-Inspector of Schools shall be treated as members of Level-III of service from the date of commencement of these rules. The seniority of such persons shall be determined from the date of their holding the posts as such on regular basis. They shall form a part of the District Cadre of the district in which they are serving. (b) Persons who belong to the Orissa Sub-ordinate Education service and now are working against various categories of posts of the service under Directorate of Elementary Education shall be called upon the exercise their option to come over to the Elementary Cadre and they shall be fitted into respective levels of the cadre. (b) Persons who belong to the Orissa Sub-ordinate Education service and now are working against various categories of posts of the service under Directorate of Elementary Education shall be called upon the exercise their option to come over to the Elementary Cadre and they shall be fitted into respective levels of the cadre. (c) If the number of persons exercising their option to come over to the service is in excess of the total number of posts in the respective levels of the service, such number of persons as per the decision of the Selection Committee shall be treated as members of the service according to their seniority in the Orissa Sub-ordinate Education Service in the respective levels.” It is evident from the statutory provision as quoted above that all the persons now working as regular Headmaster/Headmistresses of Government Upper Primary Schools, junior coordinators (Non-Formal Education) and Sub-Inspector of Schools shall be treated as members of Level-III of service from the date of commencement of these Rules. The seniority of such persons shall be determined from the date of their holding the posts as such on regular basis. They shall form a part of the District Cadre of the district in which they are serving while the provision of (b) stipulates that persons who belong to the Orissa Sub-ordinate Education service and now are working against various categories of posts of the service under Directorate of Elementary Education shall be called upon the exercise their option to come over to the Elementary Cadre and they shall be fitted into respective levels of the cadre while the provision of (c) stipulates that if the number of persons exercising their option to come over to the service is in excess of the total number of posts in the respective levels of the service, such number of persons as per the decision of the Selection Committee shall be treated as members of the service according to their seniority in the Orissa Sub-ordinate Education Service in the respective levels (emphasis supplied). Thus, for the first time the Elementary Cadre was created under Rules, 1997. Rule 15, Explanation-III (b) of the said Rules specifically stipulates that persons who belong to the Orissa Sub-ordinate Education Service and now working against various categories of posts of the service under Directorate of Elementary Education, shall exercise their option to come over to the Elementary Cadre. Thus, for the first time the Elementary Cadre was created under Rules, 1997. Rule 15, Explanation-III (b) of the said Rules specifically stipulates that persons who belong to the Orissa Sub-ordinate Education Service and now working against various categories of posts of the service under Directorate of Elementary Education, shall exercise their option to come over to the Elementary Cadre. Here in the instant case the case of the applicants are that they belong to the secondary cadre, but they are serving in the elementary cadre and have exercised their option, but no action was taken on such option for which they could not be brought under the secondary cadre and were deprived of consequential benefits like promotion to the Jr. SES cadre. 7. The sole grievance raised by the applicants is that when they have exercised their option in pursuance to the statutory provision, it is the bounden duty of the authority to take a decision by considering the factual aspect regarding the applicability of the statutory provision, but the authorities are sitting tight over the matter which compelled them to prefer the original application before the tribunal and the tribunal after considering the statutory provision as well as the stand taken by them, has directed the authority to consider the option of the applicants exercised under Rule 15 of the Rules, 1997 and bring them over to the secondary cadre as per their eligibility and regularize their services as against any available L.S.E.S. cadre in the respective education circle. 8. 8. Learned counsel representing the applicants/opposite parties have submitted that the case in hand is exactly similar to the facts of the case of W.P.(C) No.5696 of 2016, but the said argument is not factually correct, reason being that in the said case the opposite party therein had not exercised the option stipulated under Rule 15, Explanation-III (b), as such he was continuing in secondary cadre as per Rule 1997, the Tribunal, after taking into consideration that aspect of the matter, has passed the order to which this court has declined to interfere since the Tribunal has directed the authorities to allow her to continue in the secondary cadre, but here in the instant cases the specific case of the applicants is that they have exercised their option in pursuance to the provision of Rules, 1997 but the authorities are sitting tight over the matter and the Tribunal, after taking into consideration this aspect of the matter has passed the order to consider the option of the applicants exercised under Rule 15 of Rules, 1997. It is settled that whenever any application is being filed, the authorities is supposed to take a decision, that too, in the given situation, when the statute provides to exercise option to be given to the respective employees to bring them over to the secondary cadre, the authority ought to have taken a decision in accordance with law after considering the applicability of the statute by considering the facts and circumstances of each and every case, but in no circumstances the authority can sit tight over the matter without taking any decision. The tribunal has taken note of this aspect of the matter and directed the authority to consider the option of the applicants, the word ‘consider’ has got significance which denotes that the factual aspect of each applicant has to be considered regarding the applicability of being in a cadre on the basis of respective facts of the individual employee which the authorities have not considered as yet. We, after taking into consideration the fact that the authorities have not taken any decision, are not inclined to interfere with the order passed by the Tribunal and dispose of the cases with a direction to the authorities to consider the option of the applicant which they have exercised under Rule 15 of Rules, 1997 and if the authority will find the applicants entitled to be given the cadre according to their option in terms of the provision of Rule 15 of the Rules, 1997, the same shall be allowed by taking a decision in accordance with law within reasonable period, preferably within six weeks from the date of receipt of copy of this order and accordingly extend the consequential benefit, if they are entitled to. Accordingly all the writ petitions are disposed of with the above observations and directions.