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2017 DIGILAW 425 (ORI)

Guru Hantalaz v. State of Odisha

2017-04-19

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. These writ petitions have been preferred under Articles 226 and 227 of the Constitution of India assailing the common order dtd.25.07.2008 passed in O.A. Nos.1443, 1445 and 1447 of 2000 by the Odisha Administrative Tribunal, Bhubaneswar whereby and where under the Tribunal has clarified that the applicants would not be entitled to the benefit of either service or seniority from the date their juniors were appointed in Gunapur Education District or the benefit of arrears of salary as they were not appointed. The learned counsel appearing for the petitioners, at the out set, has submitted that they are not now challenging that part of the order by which the actual monetary benefit including the other service benefit has been directed not to be given but however they are now confining their prayed to issuance of direction upon the authorities to consider the said period towards counting the pensionary benefit. 2. The facts of the instant cases, in narrow compass, is that the applicants were appointed as non-formal instructors under the scheme of non-formal education on various dates. The Government has come out with a communication on 28.12.1998 by which it was decided that the Scheduled Caste and Scheduled Tribe Instructors/Supervisors working in the Non-formal Education Scheme would be appointed against the posts of primary school teachers vacant up to 30.06.1996 on the basis of seniority against the reserved post and a stipulation has been made in the communication dtd.28.12.1998 to the effect that the SC/ST non-formal Instructors/Supervisors appointed to regular posts of primary school teachers would have to obtain training qualification of C.T. if not already obtained within three years of their joining. In pursuance to the communication the Inspector of Schools of various education circle prepared a common gradation list of untrained S.C./S.T. non-formal Instructors/Supervisors of Koraput Education Circle for their appointment as Government teachers in primary schools. In pursuance to the Government decision, the cases of the SC/ST candidates have been considered but the cases of the petitioners have not been considered even if they are senior in the seniority list, ignoring their case, juniors have been considered. In pursuance to the Government decision, the cases of the SC/ST candidates have been considered but the cases of the petitioners have not been considered even if they are senior in the seniority list, ignoring their case, juniors have been considered. The petitioners, being aggrieved, had approached the Tribunal by filing original applications and the Tribunal, after taking into consideration the fact that the juniors have been appointed from the select list ignoring the case of the petitioners, has directed the authorities to appoint the applicants to the regular post of primary school teachers within a specific period, but however with a clarification that the applicants would not be entitled to the benefit of either service or seniority from the date their juniors were appointed in Gunapur Education District or the benefit of arrears of salary as they were not appointed. 3. The learned counsel for the opposite party–State has argued that the Tribunal has not committed any illegality in passing the order. It has been submitted that although the petitioners were not appointed but the Tribunal after taking into consideration the fact that the Juniors have been appointed, has directed the authorities to appoint them and accordingly they have been appointed but however with no service benefit for the period when they have not discharged their duties. 4. We have heard the learned counsels for the parties and perused the documents available on record. The undisputed fact of this case is that the petitioners were working as non-formal instructors under Non-formal Education scheme. The Government has taken decision to appoint such category of employees who were working under non-formal education scheme against the post of primary school teacher vacant up to 30.06.1996 and for that a seniority list was prepared. It is also not in dispute that the employees who were below in the seniority list have been appointed but the cases of the petitioners have been ignored for no reason whatsoever. The petitioners have approached the learned Tribunal for redressal of their grievance. The tribunal, on examination of the fact and considering the admitted position that the juniors in the seniority list who were working along with the petitioners, had been taken into the establishment as Primary Asst. Teachers, has passed an order to take the petitioners in the regular establishment as Primary Asst. The tribunal, on examination of the fact and considering the admitted position that the juniors in the seniority list who were working along with the petitioners, had been taken into the establishment as Primary Asst. Teachers, has passed an order to take the petitioners in the regular establishment as Primary Asst. Teachers but without any service benefits for the period when they have not performed their duties. These writ petitions have been filed challenging the part of the order whereby and where under the service benefits have been denied to them for the period for which they have illegally not been appointed. Learned counsel for the petitioners, at the outset, has submitted that now he is confining his prayer only to the fact that the authorities may be directed to count the period of service for the purpose of counting pensionary benefit from the date when the juniors have been engaged. He submits that since the petitioners have no fault on their part and admitted position in the case is that the juniors have been appointed in pursuance to the Government decision ignoring their case, hence at least they are entitled to be given continuity in service for the purpose of counting the pensioniary benefit and if the Government will do that no prejudice will cause to any one. 5. Learned counsel appearing for opposite party-State has fairly submitted that the court may pass appropriate order in this regard. We, after taking into consideration the fact that the petitioners without having any fault on their part, have been deprived from their legitimate right to be appointed while the juniors from the same seniority list have been appointed and allowed to continue in service, hence the Tribunal after taking into consideration this aspect of the matter that illegality having been committed by the authority, has directed them to appoint the petitioners as Asst. Primary Teachers in pursuance to the Government decision. When the Tribunal has considered the grievance of the petitioners by considering the fact that the action of the authority is in the teeth of Article 14 of the Constitution, as such had directed to appoint the petitioners as Asst. Primary Teachers in pursuance to the Government decision. When the Tribunal has considered the grievance of the petitioners by considering the fact that the action of the authority is in the teeth of Article 14 of the Constitution, as such had directed to appoint the petitioners as Asst. Primary Teachers, hence we are of the considered view that the prayer of the petitioners at this juncture is reasonable one so that they may get pensioniary benefit by counting the said period and in that situation no prejudice will be caused to others. 6. We, after taking into consideration the entire aspect of the matter and considering the fact that there is illegality on the part of the authority, are of the considered view that the authorities have committed illegality in not appointing the petitioners and also considering the prayer of the petitioners in course of argument regarding counting the past services for the purpose of pensioniary benefit, thought it proper to remit the matter before the authority to consider the prayer of the petitioner and take decision in the light of the observation made herein above within reasonable period preferably within four weeks from the date of receipt of copy of this order and extend the consequential benefit thereof. In view thereof all the writ petitions stand disposed of with the above observation and direction.