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2017 DIGILAW 510 (ORI)

State of Odisha v. Govinda Nayak

2017-05-03

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. In all these writ petitions since common issue involved, the same are being disposed of by this common order. These writ petitions are under Articles 226 and 227 of the Constitution of India preferred by the State of Odisha and its functionaries wherein the common order passed in different original applications dtd.26.4.2016 by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack is under challenge whereby and where under the decision of the authorities to revert/repatriate the opposite parties – applicants have been quashed with a direction to repost them in District Institute of Education and Training (in short DIET) where they were serving before filing of the original applications with further direction to regularize the intervening period and directed to complete the entire exercise within three months from the date of receipt of copy of the order. 2. The brief facts of the case is that the opposite parties – applicants were working in different secondary schools, subsequently posted in different Secondary Training Schools and while they were continuing as such, the training schools were upgraded to DIET vide government of Odisha, Department of School and Mass Education notification dtd.25.6.2005. The Government of Odisha, Department of School and Mass Education vide its letter dtd.5.7.2010 re-designated the existing post in Secondary Training Schools which have been upgraded to DIET and District Resource Centers (in short DRCs). Accordingly, the applicants were designated as Teacher Educators. While the applicants were working on re-designated posts of Teacher Educator, they were reverted back to the Elementary and Secondary Cadre vide letter dtd.24.6.2015 on the ground that they have no requisite qualification as per National Council of Teacher Education (in short NCTE) Regulations, 2014 and in pursuance to it the Directorate of Teachers Education and State Educational Research and Training, Orissa vide office order dtd.25.6.2015 reverted back 29 teachers working in different DIET including the applicants w.e.f. 25.6.2015 placed their services under the Director, Secondary Education, Orissa for placement in different institutions. 3. The applicants being aggrieved, have approached to the Tribunal to quash the order of reversion on the ground that they were having requisite qualification as per Rule, 2007 and were re-designated and posted as Teacher Educator in the updgraded DIET as per the policy decision of the Government issued in the year 2010. 3. The applicants being aggrieved, have approached to the Tribunal to quash the order of reversion on the ground that they were having requisite qualification as per Rule, 2007 and were re-designated and posted as Teacher Educator in the updgraded DIET as per the policy decision of the Government issued in the year 2010. The Qualification prescribed in the NCTE Regulation, 2014 has no application to these applicants as they were covered under the rule which was in force at the time when they were engaged/posted in the upgraded DIET. 4. While on the other hand, the case of the State of Orissa before the Tribunal was that the applicants have no requisite qualifications as per NCTE Regulation, 2014, as such they have been directed to be reverted back by the decision taken by the Government in this regard and accordingly that has been acted upon. It was their further case that since they have got no requisite qualification as per the subsequent regulation of the NCTE issued in the year 2014, hence they have been directed to be reverted on the principle that an employee has to possess the requisite qualification to hold the said post. 5. The Tribunal, after appreciating the factual aspect and taking into consideration the legal position, has passed the order quashing the order of reversion issued against the opposite parties - applicants by passing a common order which is subject matter of the instant writ petitions. 6. We have heard the learned counsels for the parties and perused the documents available on record. The undisputed fact in this case is that the opposite parties who are applicants in the original applications were working in different Secondary Schools having requisite qualification at the time of their entry in to the service. The Secondary Training Schools were upgraded to DIET vide Government of Odisha, Department of School and Mass Education Notification dtd.25.6.2005 which has been passed in pursuance to the posts having been sanctioned by the Government of India, Ministry of Human Resource Development who has sanctioned 7 new DIETs and 6 new DRCs for the State of Odisha through upgradation of existing Secondary Training Schools under centrally sponsored scheme of Teachers Training and in pursuance of the sanction of the Government of India, altogether 11 Secondary Training Schools have been upgraded to the status of DIETS and 6 nos. of S.T. Schools to DRCs. of S.T. Schools to DRCs. The School and Mass Education Department, Government of Odisha has come out with an office order, addressed to the Accountant General (Audit & Entitlement), Orissa Bhubaneswar dtd.5.7.2010 communicating him regarding the decision of upgradation and redesignation in view of the order passed by the Government of India by which 11 nos. of Secondary Training Schools of the state have been upgraded to DIETs and 6 nos. of Secondary Training Schools to DRCs. In view thereof several posts have been created for those upgraded DIETS and DRCs respectively. In order to fulfill the norms prescribed by the NCTE, the government has been pleased to re-designate the posts existing in the Secondary Training Schools at Bhadrak, Cuttack, Angul, Jagatsinghpur, Gajapati, Nayagarh, Puri, Kendrapara, Bargarh, Raygada, Nawarangpur which were upgraded to DIET and Boudh, Sonepur, Nuapara, Deogarh, Jharsuguda & Malkangiri have been upgraded to DRCs in the manner provided therein. The posts of Trained Graduate Teachers have been re-designated as Teacher Educator. It is further evident that the re-designation order has been given effect to from the date of issuance of the order. It has also been decided therein that the posts whose work profile is completely different on re-designation, the incumbent holding the earlier posts may be suitably relocated in other organization under the department where there is necessity. The other stipulation is that the re-designated posts shall continue under the CSP scheme and may be coterminous with the programme. The same has been concurred even by the Finance Department vide its letter dtd.27.5.2010 with a copy forwarded to the Government of India, Ministry of Human Resource Development, Department of School Education and Literacy. The opposite parties - applicants who were working as Trained Graduate Teachers having eligibility qualification at the time of their engagement, since been re-designated as Teacher Educators, have started performing their duties. The authorities have come out with a communication dtd.24.6.2015 whereby and where under decision has been taken to adjust/repatriate to such teachers who have no requisite qualification as per the NCTE Regulation, 2014, acting upon the said decision, an office order was issued on 25th June, 2015 whereby and where under the opposite parties – applicants have been reverted back/repatriate to their parent cadre with immediate effect under the control of the Director, Secondary Education, Orissa for placement in different institutions as per the letter dtd.24th June, 2015. The office order dtd.25th June, 2015 has been passed purely on the basis of having no requisite qualification as per NCTE Regulation, 2014. The opposite parties – applicants being aggrieved with the decision of the Government, have approached the Tribunal, the Tribunal, while dealing with the issue and going into the factual as well as legal position regarding applicability of the amended eligibility condition as to whether it will be applicable retrospectively or prospectively, has given a declaration that since the opposite parties – applicants have been appointed on the posts having requisite qualifications and since they have been re-designated as Teacher Educators, even on the day when they have been re-designated, they were having their requisite qualification as per the NCTE Regulation in vogue at the time, has passed an order quashing the decision of the Government by restoring the position of the opposite parties – applicants, the said order is under challenge by the State of Odisha in these writ petitions. 7. Before dealing with the issue and seeing the legality and propriety of the order, it is necessary to discuss the legal settled position. It is not in dispute that an incumbent who is desirous to hold a post is to be eligible but the eligibility is to be seen on the due date of consideration. It is also not in dispute that if a person holds a post and subsequently the post is being re-designated with the specific decision taken by the competent authority in this regard, on re-designation, the incumbent will be the holder of the re-designated post with all service condition pertaining to the said post. It is also settled that if any regulation fixing the eligibility condition is enacted upon by the authorities, that cannot be given its retrospective application taking away the rights of the parties otherwise it will be unending process so far as the facts and circumstances of the instant cases are concerned. In this regard reference may be made to the judgment rendered by Hon’ble Apex Court in the case of Mithilesh Kumari and another Vs. In this regard reference may be made to the judgment rendered by Hon’ble Apex Court in the case of Mithilesh Kumari and another Vs. Prem Behari Khare, reported in AIR 1989 SC 1247 wherein it has been held at paragraph 21 that a retrospective operation is not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before giving any declaration as to whether the amendment is retrospective or not, the general scope and purview of the statute and at the remedy sought to be applied must be looked into and what was the former state of law and what the legislation contemplated has to be considered. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective and is generally unjust and may be oppressive, a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. In the judgment rendered by Hon’ble Apex Court in the case of Nirmal Chandra Bhattacharjee & Others Vs. Union of India and Others, reported in 1991 Supp.2 SCC 363 Hon’ble Apex Court has observed as under:- “No rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other.” In the case of B.L. Gupta and Another Vs. M.C.D., reported in (1998) 9 SCC 223 it has been laid down by the Hon’ble Apex Court that statutory rule is to be given its prospective application. M.C.D., reported in (1998) 9 SCC 223 it has been laid down by the Hon’ble Apex Court that statutory rule is to be given its prospective application. It is evident from the pronouncement of the Hon’ble Apex Court that the applicability of the statute cannot be with retrospective effect affecting the right of the parties which has already been accrued unless expressed specifically, but here in the instant case there is no amendment having been made under the statute rather the NCRT, an apex education body, has come out with a new eligibility condition in the year 2014 and as such when the statute cannot be given retrospective application affecting the right of the parties if already accrued and in no stretch of imagination, the decision taken by any statutory body under executive instruction will not be given retrospective effect affecting the right of the parties already accrued. 8. So far as the fact of the case in hand is concerned, admittedly, the petitioners have been appointed as Trained Graduate Teachers, while working they were re-designated as Teacher Educator by the decision taken in this regard by the competent authority. It is also not in dispute that on the date when they have been engaged or re-designated as Teacher Educator, they have having their requisite qualification, i.e. on the basis of the NCTE Regulations, 2007 and 2009. The NCTE being the apex body in this field, has come out with a regulation and norms and standards in the year 2007, 2009 and recent one is 2014. Since it is not in dispute that the opposite parties – applicants were possessing the requisite qualification as per the NCTE Regulations, 2007 & 2009, as such we are only discussing regarding applicability of the eligibility condition as has been incorporated in the subsequent regulation brought by the NCTE known as NCTE Regulations, 2014 and in the light of this the decision of the authority is to be examined as to whether direction to revert the opposite parties – applicants back to their parent cadre in the light of change in the eligibility condition brought upon by way of subsequent Regulation, 2014 is proper or not? Before examining this, we have come across the proceeding of the meeting held under the Chairmanship of the Commissioner-cum-Secretary, School and Mass Education Department wherein the decision has been taken and for the present the decision with which we are concerned is (iii) and (vii) which speaks as follows:- “III. Before Govt. decision is taken for implementation of NCTE regulations, 2014 advertisement has been made for selection of 173 Teacher Educators for DIETs & BITEs as per the qualification prescribed in NCTE Regulations, 2009. In NCTE Regulations, 2014 the qualification of teaching staff has been revised. Issue of corrigendum by revising the qualification mentioned in the original advertisement may attract legal complications and as such there may be indefinite delay in filling up the posts. Therefore, it was decided to consider the applications received in the Directorates as per the advertisement. It was further decided that the selected candidates having no requisite qualifications as per the NCTE regulations, 2014 to be allowed 3 years time for acquiring the required qualifications. As undertaking to this effect shall be given by the candidates at the time of joining. xxxxxxxxx xxxxxxxxx xxxxxxxxxxx (vii) The existing staff of erstwhile ST schools having requisite qualifications as per new regulations, 2014 to be observed against the post of Teacher Educators subject to furnishing willingness. The staff having no requisite qualification shall be reverted back to the control of Director, Secondary Education for their absorption in High Schools.” It is evident from these decisions taken by the competent authority, i.e. the Commissioner-cum-Secretary, School and Mass Education Department that the advertisement is to be made in pursuance to the NCTE Regulations, 2014 and in case the candidates will be selected having no requisite qualification as per the NCTE Regulation, 2014, they will be allowed 3 years time for acquiring the required qualification, as undertaking to this effect shall be given by the candidates at the time of their joining. It is further evident that the staff having no requisite qualification shall be reverted back to the control of Director, Secondary Education for their absorption in High Schools. It is further evident that the staff having no requisite qualification shall be reverted back to the control of Director, Secondary Education for their absorption in High Schools. After the decision taken by the Commission-cum-Secretary, a clarification has been sought for by the apex body, i.e. the NCTE as to what to be done with respect to the members of existing faculty and it has been clarified that all future appointments of faculty and staff including those for existing vacant positions shall be as per qualifications prescribed in Regulations (and Norms and Standards) 2014 (without disturbing the existing faculty and staff). Hence it is evident that the NCTE has also taken care of existing faculty and staff mainly considering the settled proposition that the new regulation inserting new eligibility condition cannot adversely affect the existing faculty and staff. When we have examined the order passed by the Tribunal, we found that the Tribunal has taken note of the retrospective applicability of the new eligibility condition, as to whether the opposite parties – applicants were holding the eligibility condition at the time of their appointment or re-designation, as also the clarification made by the NCTE not to disturb the existing faculty and staff, has passed the order quashing the decision of the authorities. We, after going through the factual aspect as well as the order passed by the tribunal, are in agreement with the finding of the tribunal merely for the reasons that:- (i) if a new regulation will come prescribing new eligibility condition, the employee who have already been benefited by getting the post on the basis of eligibility condition at the time of their entry in the cadre, cannot be adversely affected, otherwise it will be unending process and time and again when the regulation will be changed inserting new eligibility condition, the employee working therein have to face it adversely and that cannot be the intent of any legislation to adversely affect the service condition of an employee by inserting new provision in the subsequent regulation/legislation. (ii) it is not the case of the State that the opposite parties – applicants were not having the eligibility condition at the time of their entry in service or at the time of re-engagement, rather it is admitted on their part that they were having requisite qualification as per NCTE Regulations, 2007 and 2009. (ii) it is not the case of the State that the opposite parties – applicants were not having the eligibility condition at the time of their entry in service or at the time of re-engagement, rather it is admitted on their part that they were having requisite qualification as per NCTE Regulations, 2007 and 2009. (iii) the legislation cannot be given retrospective effect and as such there is no question of retrospective effect of the eligibility condition issued by the statutory functionaries leading to alteration in service condition. (iv) in course of argument, learned Standing Counsel representing the School and Mass Education Department, State of Odisha has submitted that it is not a case of reversion, rather it is a case of repatriation and no service condition will be change, we after hearing him, has specifically directed by passing judicial order on 25.4.2017 to file an affidavit to that effect, in terms thereof an affidavit has been filed but no such assertion has been given and according to us that cannot be given in view of the conscious decision of the Govt. to revert them, as would be evident from the order impugned. (v) The decision of the Govt. is also otherwise not proper for the reason that when they have taken a decision to select the candidates even having no educational qualification as per the NCTE Regulation by allowing them to be engaged with the condition to get the educational qualification within three years and to that effect an undertaking is to be given, now the question is when the opposite parties - applicants were working having requisite qualifications as per the regulation in vogue at the time of their entry, why this treatment will not be given to such type of employees who are already in service being the faculty members, while taking such decision, the Government ought to have taken into consideration this aspect of the matter. According to us this offer ought to have been given to these applicants so that the Government can get experienced teachers having wide experience in teaching field working under it. 9. We, at this juncture, thought it proper to deal with the argument of the Learned Standing Counsel for School and Mass Education Department that the fact of the case of writ petition being W.P.(C) No.20680 of 2016 is different to the facts of other writ petitions. 9. We, at this juncture, thought it proper to deal with the argument of the Learned Standing Counsel for School and Mass Education Department that the fact of the case of writ petition being W.P.(C) No.20680 of 2016 is different to the facts of other writ petitions. He has submitted that the opposite party - applicant of the said writ petition was earlier been engaged in Panchagada Ananga Narendra School of Education and as such he cannot claim parity with the other employees, while examining this issue, we have gathered from the record that as per advertisement he was appointed as Trained Graduate Teacher in Panchagada Ananga Narendra School of Education, Khurdha on 27.1.199, transferred to Govt. Secondary Education School, Rajsunakhal by virtue of order of Director, T.E. & SCERT dtd.13.6.2003 and pursuant to the said order he has joined in the institution on 13.6.2003 and the competent authority by virtue of notification dtd.25.5.2005 issued by the Ministry of Human Resource Development has sanctioned 11 new DIETs and 6 DRCs through upgradation of Secondary Education Schools under centrally sponsored scheme of teacher education and his school found place at sl. no.3, as such it cannot be said that his case is different to that of the case of others. In view thereof the argument advanced in this regard by the learned Standing Counsel appearing for the School and Mass Education Department, State of Odisha is rejected. 10. We, on the basis of the reasoning given herein above, are of the considered view that the Tribunal has not erred in passing the order, accordingly, we are of the considered view that the order needs no interference, in the result the writ petitions stand dismissed.