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2021 DIGILAW 281 (ORI)

Bamadev Sahoo v. State Of Orissa

2021-06-29

B.R.SARANGI

body2021
JUDGMENT Dr. B.R. Sarangi, J. - The petitioner, who was working as Asst. Teacher, by means of this writ petition, seeks direction to the opposite parties for inclusion of his name in the draft gradation list dated 01.09.2012, which was prepared by opposite party no.3-District Inspector of Schools, Angul with a further prayer to quash the said draft gradation list. 2. The factual matrix of the case, in brief, is that the petitioner, by following due procedure of selection, was appointed as Asst. Teacher by the District Selection Committee and posted in Gopinathpur Lower Primary School, vide letter dated 22.09.1981 issued by the District Inspector of Schools, Angul-opposite party no.3, pursuant to which he joined on 26.09.1981. While so continuing, he acquired B.Ed. qualification on 1985 and became Trained Graduate from the date of acquisition of such qualification. By office order dated 21.01.1989 issued by the District Inspector of Schools, Dhenkanal, the petitioner was placed on deputation to Samal Barrage U.P. School under Angul Education District. Pursuant to such order, the petitioner was relived from the control of District Inspector of Schools, Dhenkanal and joined in Samal Barrage U.P. School on 01.02.1989 under the District Inspector of Schools, Angul, Orissa. 2.1 In order to regulate the method of recruitment and conditions of service of Teachers of Elementary Education, a set of Rule was framed in exercise of power conferred by the proviso to Article 309 of the Constitution of India, which came into force with effect from 18.12.1997 called as 'The Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 (hereinafter referred to as 'Rules, 1997'). As per the said Rules, 1997, the post of Asst. Teachers of Govt. Primary and Upper Primary Schools belonged to Level-V. As the petitioner was working as Asst. Teacher in a Govt. Primary School, he was to be encadred in Level-V of Elementary Education Service. Rule-15 of the Rules, 1997 deals with seniority and preparation of gradation lists. All Asst. Teachers of Government Primary and Upper Primary Schools shall be treated as Level-V from the date of commencement of the said Rules, as per Explanation-I to Rule-15, and the seniority of such Asst. Teachers shall be determined with reference to the date of their appointment as such. 2.2 The opposite party no.2-Director, Elementary Education, Odisha, on 01.09.2012, published a draft gradation list of Level-V teachers having B.Ed. Teachers shall be determined with reference to the date of their appointment as such. 2.2 The opposite party no.2-Director, Elementary Education, Odisha, on 01.09.2012, published a draft gradation list of Level-V teachers having B.Ed. qualification as on that date. But, in the said draft gradation list, the petitioners name was not enlisted, taking into consideration his date of joining as 26.09.1981. Therefore, he submitted an objection on 11.09.2012 specifically indicating therein that he having appointed as regular Asst. Teacher in Government Primary School on 22.09.1981 pursuant to which he joined on 26.09.1981, as per the stipulation made in Rule-15 of the Rules, 1997, his seniority ought to have been taken into account treating his date of appointment as 22.09.1981. On receipt of such objection dated 11.09.2012, the Director of Elementary Education, Odisha, vide his office order dated 24.09.2012 directed the District Inspector of Schools, Angul to furnish a detailed report along with the specific views and all supporting documents within a fortnight for further course of action. As no action was taken at his end, the Director, Elementary Education, Odisha-opposite party no.2, vide its letter dated 30.11.2012, directed the District Inspector Schools, Angul-opposite party no.3 to send a clear report in detail informing that the petitioners name was included in the gradation list or not. But, without responding to the same, the opposite party no.3-District Inspector of Schools, Angul proceeded to effect promotions from Level-V to Level-IV from out of the said draft gradation list causing prejudice to the petitioner. Aggrieved thereby, the petitioner filed O.A. No. 4118(C) of 2012 before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, but on the abolition of the tribunal, the said original application has been transferred to this Court, pursuant to order dated 03.01.2020 passed by a Division Bench of this Court in W.P.(C) No. 26976 of 2019, and registered as writ petition. 3. Mr. H.P. Rath, learned counsel for the petitioner did not press the second limb of the prayer with regard to quashing of draft gradation list prepared by opposite party no.3-District Inspector of Schools, Angul, and contended that the authorities, by not considering the objection raised by the petitioner in proper perspective, have acted arbitrarily and unreasonably, and that on the basis of the draft gradation list, if promotions are effected from Level-V to Level-IV to the prejudice of the petitioner, the same cannot sustain in the eye of law. It is further contended that if the statutory rules prescribed a thing to be done in a particular manner, the same has to be adhered to in the same manner. When Explanation-I to Rule-15 of the Rules, 1997, unambiguously prescribes that the seniority of the petitioner shall be determined with reference to the date of his appointment, the petitioner, having been appointed as Asst. Teacher on 22.09.1981, his seniority should have been fixed accordingly. This position has been settled by this Court in W.P.(C) No. 14979 of 2010 and batch disposed of on 23.12.20211 and while interpreting the provisions of Exaplanation-1 to Rule-15 of Rules, 1997, this Court held that on the basis of initial date of appointment seniority is to be fixed. In view of the ratio decided in the said case, since the petitioners date of appointment was 22.09.1981, his name should have found place in the gradation list prepared by the authority. Non-inclusion of his name in the draft gradation list prepared by the authority is arbitrary, unreasonable and contrary to the provisions of law. 4. Mr. S. Jena, learned Standing Counsel for School and Mass Education Department contended that the petitioner has not filed the draft gradation list dated 01.09.2012 along with the writ petition and, as such, in absence of the draft gradation list, the present case cannot be decided. Consequentially, the writ petition is not maintainable and has to be dismissed in limine. It is further contended that the petitioner was appointed as Asst. Teacher and posted in Gopinathpur Lower Primary School, pursuant to the office order dated 22.09.1981 passed by the District Inspector of Schools, Angul and at that time the teachers of Primary Schools were not being treated as Govt. Servants and their services were only taken over by the Government in the year 1989. Therefore, the petitioners claim for inclusion of his name in the draft gradation list from the date of his appointment in the service, w.e.f. 22.09.1981 cannot sustain in the eye of law and, as such, the writ petition is liable to be dismissed. 5. This Court heard Mr. A.K. Behra, learned counsel for the petitioner and Mr. S. Jena, learned Standing Counsel for School and Mass Education Department through virtual mode, and perused the record. 5. This Court heard Mr. A.K. Behra, learned counsel for the petitioner and Mr. S. Jena, learned Standing Counsel for School and Mass Education Department through virtual mode, and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. For just and proper adjudication of the case, Rule-3 (1), (2)(i)(ii) and Rule-15(1)(a),(b) and (c) and Explanation-I of Rules, 1997, are quoted below: '3. Constitution of Service- (1) The Service shall comprise of the following levels, namely, (i) The Odisha Elementary Education Service, Level-V; (ii) The Odisha Elementary Education Service, Level-IV; (iii) The Odisha Elementary Education Service, Level-III; (iv) The Odisha Elementary Education Service, Level-II; (v) The Odisha Elementary Education Service, Level-I (vi) The Odisha Elementary Education Service, Level-l (Senior) (2) (i) The Odisha Elementary Education Service, Level-V shall consist of the Post of Assistant Teachers of Government Primary Schools and Assistant Teachers of Government Upper Primary Schools. (ii) The Odisha Elementary Education Service, Level-V shall consist of the posts of Headmasters/Headmistress of Government Primary Schools. xx xx xx 15. Seniority and gradation list (1)(a) The District Education Officer of the concerned Education Districts shall maintain gradating list separately for the posts belonging to Level-V, Level-IV and Level-III of the Service strictly on the basis of Seniority. (b) The gradation list of incumbents of the above mentioned levels shall be updated by 15th July of every year. (c) The District Education Officer shall invite objections by the 15th June before finalization of the gradation list and thereafter final gradation list shall be published by the 15th July of every year.' xx xx xx Explanation-I- All persons now working as regular Assistant Teachers of Government Primary and Upper Primary Schools shall be treated as Members of Level-V of the Service from the date of commencement of these Rules. The seniority of such persons shall be determined with reference to the date of their appointment as such. xx xx xx On perusal of the above mentioned rules, it is made clear that the Odisha Elementary Education Service Level-V consists of the posts of Assistant Teachers of Government Primary Schools and Assistant Teachers of Government Upper Primary Schools. The seniority of such persons shall be determined with reference to the date of their appointment as such. xx xx xx On perusal of the above mentioned rules, it is made clear that the Odisha Elementary Education Service Level-V consists of the posts of Assistant Teachers of Government Primary Schools and Assistant Teachers of Government Upper Primary Schools. For the purpose of implementation of Rule-15, the District Inspector of Schools of the concerned Education District shall maintain gradation list separately for the posts belonging to Level-V, Level-IV and Level-III of the Service strictly on the basis of seniority. As per Explanation-I, the persons those who are regular Assistant Teachers of Government Primary and Upper Primary Schools shall be treated as Members of Level-V of the service from the date of commencement of the rules and the seniority of such persons shall be determined with reference to the date of their appointment as such. Thereby, the rule is very clear that the seniority has to be determined with reference to the date of appointment. 7. On the basis of the factual matrix delineated above, there is no dispute that the petitioner has been issued with an appointment letter on 22.09.1981, by following due procedure of selection, by the District Selection Committee. In pursuance thereof, the petitioner joined on 26.09.1981. As such, he was appointed as an Assistant Teacher giving posting in Gopinathpur Lower Primary School. Therefore, applying the rules applicable to the petitioner, as an Asst. Teacher, his seniority should have been fixed in Level-V category on the basis of the Explanation-I to Rule-15 of the Rules, 1997 from the date of his initial appointment, i.e. from 22.09.1981. This fact is evident from the service book of the petitioner, which has been annexed as Annexure-2 to the writ petition, wherein it has been specifically mentioned that 'Appointed as primary school teacher vide order no. 3752 dt.22.09.81 of the D.I. of Schools, Angul.' and the same has been duly endorsed by the competent authority. While so continuing, pursuant to letter dated 18.01.1989 of the Director of Elementary Education, Odisha, which was communicated vide letter dated 21.01.1989 of the Inspector of Schools, Dhenkanal Circle, he was deputed to Samal Barrage U.P. School to act as such in the old scale of pay without deputation allowance. While so continuing, pursuant to letter dated 18.01.1989 of the Director of Elementary Education, Odisha, which was communicated vide letter dated 21.01.1989 of the Inspector of Schools, Dhenkanal Circle, he was deputed to Samal Barrage U.P. School to act as such in the old scale of pay without deputation allowance. Therefore, lien of the petitioner was continuing in his original post subject to deputation to new place of posting at Samal Barrage UP School. When the draft gradation list was prepared by the Director Elementary Education, Odisha and the name of the petitioner did not find place in the same, he filed objection vide Annexure-4 series enclosing the relevant documents. The same was attended to and the Deputy Director of Elementary Education, Odisha called upon the District Inspector of Schools, Angul to furnish a detailed report along with his specific views and all supporting documents to the Directorate within fortnight through a special messenger for taking further course of action at their end, but the same was not acted upon. Again, the Executive Engineer, Head Works Division, Samal Barrage provided the original service book of the petitioner to the District Inspector of Schools, Angul. Thereafter, on 30.11.2012, the Deputy Director, Elementary Education, Odisha again issued a letter to the District Inspector of Schools, Angul to furnish a report as to whether the name of the petitioner has been included in the gradation list or not, if not, the reasons along with his specific views in the matter be furnished to the Directorate by 03.12.2012. In response to same, the District Inspector of Schools, Angul furnished a report to the Director, Elementary Education, Odisha, Bhubaneswar stating inter alia that the petitioner, who was working as Asst. Teacher in Chhendipada Primary School under Angul Education District, was deputed to Samal Barrage U.P. School vide order dated 18.01.1989 of the Director, Elementary, Education, Odisha, Bhubaneswar, which was communicated vide memo no.1353 dated 21.01.1989 of the Inspector of Schools, Dhenkanal Circle, Dhenkanal. The Block Development Officer, Angul was informed, vide office memo no. 588 dated 28.01.1989, to relieve the petitioner. Being relieved by the B.D.O., Angul, the petitioner was working at Samal Barrage UP School on deputation. After his joining, he has not applied to any authority for cancellation of his deputation and also provided the original service book to the Director. This clearly indicates that the petitioner was continuing as Asst. 588 dated 28.01.1989, to relieve the petitioner. Being relieved by the B.D.O., Angul, the petitioner was working at Samal Barrage UP School on deputation. After his joining, he has not applied to any authority for cancellation of his deputation and also provided the original service book to the Director. This clearly indicates that the petitioner was continuing as Asst. Teacher in Chhendipada Primary School and his services were placed on deputation to Samal Barrage U.P. School. Therefore, the question of his application for cancellation of deputation, as stated by the District Inspector of Schools, was not required. But that does not mean, his lien from Chhendipada Primary School to Samal Barrage School on deputation has been ceased. 8. In paragraphs-5 and 6 of the counter affidavit filed by opposite party no.3, it has been specifically stated as follows: '5. That while the applicant was working as such, he was deputed the Samal Barrage U.P. School vide Order No. 1695 dtd.18.01.1989 of the Director of Elementary Education, Orissa, Bhubaneswar communicated vide Memo No. 1353 dtd.21.01.1989 of the Inspector of Schools, Dhenkanal Circle, Dhenkanal, the B.D.O., Angul was informed to leave the Teacher vide Memo No.588 dtd.28.01.1989 and being relieved by the B.D.O. has been working at Samal Barrage School and after his joining he should have applied the authority for cancellation of his deputation and when he was deputed to the Samal Barrage UP School the statute of the School was a Non-Govt. Primary School. 6. That, after the services of the teachers of Primary Schools were taken over by the Govt. in the year 1989 such teachers are being treated as Govt. Servants w.e.f. the date of such taken over for all purposes. But the present applicant continued in the Samal Barrage UP School which is under the administrative Control of Executive Engineer, Head Works Division, Samal Barrage and he did not opt to come back to his parent school before services of such teachers working in non Govt. Primary Schools were taken over the Govt. and even after such taken over the Govt,. Primary Schools were taken over the Govt. and even after such taken over the Govt,. the present petitioner did not take any steps for coming back to his parent post and after a hiatus of more than 23 years he approached portals of this Honble Tribunal for inclusion of his name in the gradation list prepared by the D.I. of Schools, Angul of Level-V teachers which is gross barred by limitation and the applicant without coming back to the Department again prayed for inclusion in the gradation list which is only consequential to his return to the department.' So far as contention raised, that the petitioner, whose services were placed on deputation, should have applied for cancellation of the same, no where it has been provided for. When the authority required his services to be placed on deputation to Samal Barrage School and he was continuing there with the knowledge of the authority concerned, if the services of the petitioner were required, the authority could have brought him to the original cadre, and accordingly when the draft gradation list was prepared his lien with the original circle being continued, his name should have been placed in the draft gradation list, even though his services were placed on deputation to the borrowing authority. 9. In response to the counter affidavit filed by the opposite party no.3, the petitioner filed rejoinder affidavit, in paragraph-4 whereof it has been stated as follows: '4. That, in reply to the Paragraph -5 and 6 of the counter affidavit filed by the opposite party no.3 are not correct. It is humbly submitted that by virtue of the order of the then Inspector of Schools, Dhenkanal the petitioner was deputed to Samal Barrage Upper Primary School and at no point of time he was permanently absorbed in Samal Barrage U.P. school not his lien in Angul District Education Cadre was suspended and as such while on deputation till retain lien in his parent cadre. As a matter of act after filing of Original Application the Block Education Officer cancel the deputation of the petitioner vide dated 09.09.2014 and consonance there of the petitioner has been relieved w.e.f. 15.10.2014 from Samal Barrage U.P. School by the Executive Engineer Samal by virtue of office order dated 12.09.2014 and accordingly the petitioner has joined in Chhendiapada Primary School under Block Education Officer Angul on 16.10.2014. This proves that the petitioner has lien in his cadre of Angul Education District throughout and there was no reason why his name shall not find place in gradation list of Level-V teachers of erstwhile Deputy Inspector of Schools, Angul. Thus, the name of the petitioner is liable to be included in the gradation list of Level-V teachers of Angul Education District prepared and published on 01.09.2012 at appropriate place treating the initial date of joining as 26.09.1981 for all purposes with consequential service benefit of promotion from the date of promotion of his juniors.' On perusal of the above, it is made clear that though the petitioner was deputed to Samal Barrage UP School, he had never been permanently absorbed in the said school and his lien had been continuing with Angul District Education Cadre. But fact remains, after filing the original application, the Block Education Officer cancelled the deputation of the petitioner on 09.09.2014, pursuant to which he was relieved w.e.f. 15.10.2015 from Samal Barrage UP School by the Executive Engineer, Samal Barrage, by virtue of the office order dated 12.09.2015. Accordingly, the petitioner joined in Chhendipada Primary School under Block Education Officer, Angul on 16.09.2014. Thereby, it is made clear that his lien with parent education district was continuing, pursuant to which he had been allowed to join in Chhendipada Primary School, wherefrom he was placed on deputation to Samal Barrage UP School. Therefore, the petitioners name should have been included in the draft gradation list prepared by opposite party no. 3 with all consequential benefits. 10. In Triveni Shankar Saxena v State of U.P., 1992 Supp (1) SCC 524: AIR 1992 SC 496 , the apex Court held that the word 'lien' originally means 'binding' from the latin 'ligament' and its lexical meaning was 'right to retain'. 11. While considering Rule-9(13) of the Fundamental Rules, it provides as follows: 'Lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively.' 12. 11. While considering Rule-9(13) of the Fundamental Rules, it provides as follows: 'Lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively.' 12. The apex Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 , the apex Court held as follows: 'A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a 'lien' on the post. This 'lien' is defined in Fundamental Rules, section III, Ch II, Rule 9(13) as the title of a Government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively.' Therefore, the apex Court in Ramal Khurana v. State of Punjab, (1989) 4 SCC 99 , held that 'Lien' connotes the right of a civil servant to hold the post substantively to which he is appointed. It is an incident of substantive appointment to a post. It is basically a singular concept since in public services substantive appointment is made against a particular post. 13. In Haribans Misra v. Railway Board, (1989) 2 SCC 84 , the apex Court pointed out that only when a person was appointed on a permanent basis could he claim lien on the post to which he is so appointed. 14. Applying the principles of 'lien', as discussed above, there is no dispute that the petitioner had been appointed against the permanent post and his services had been placed on deputation to Samal Barrage U.P. School. Thereby, his 'lien' was continuing against substantive post at Chhendipada Upper Primary School and when he had been withdrawn from deputation, his services were placed at the very same School. In view of this, the petitioners name should have been included in the gradation list as per Explanation-I to Rule-15 of Rules, 1997 taking into account his date of appointment as 22.09.1981. 15. It is apt to refer here the legal maxim 'Expressio Unius est exclusion alterius' i.e. if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and any other manner are barred. 16. 15. It is apt to refer here the legal maxim 'Expressio Unius est exclusion alterius' i.e. if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and any other manner are barred. 16. In Nazir Ahmed v. King Emperor, AIR 1936 PC 253 , law is well settled 'where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.' The said principles have been followed subsequently in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 , Dhananjay Reddy v. State of Karnataka, AIR 2001 SC 1512 , Chandra Kishore Jha v. Mahabir Prasad, AIR 1999 SC 3558 , Gujrat Urja Vikas Nigam Ltd. v. Essar Power Ltd., AIR 2008 SC 1921 , Ram Deen Maurya v. State of U.P., (2009) 6 SCC 735 . 17. In Subash Chandra Nayak v. Union of India, 2016 (I) OLR 922 , similar question had come up for consideration before this Court and this Court in paragraph-8 observed as follows: '.............the statute prescribed a thing to be done in a particular manner, the same has to adhered to in the same manner or not at all. The origin of the Rule is traceable to the decision in Taylor v. Tailor, (1875) LR I Ch D 426, which was subsequently followed by Lord Roche in Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (2). But the said principle has been well recognized and holds the field till today in Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422 , and Zuari Cement Limited v. Regional Director, Employees State insurance Corporation, Hyderabad and others, (2015) 7 SCC 690 and the said principles has been referred to by this Court in Manguli Behera v. State of Odisha and others (W.P.(C) No. 21999 of 2014 disposed of on 10.03.2016)'. This view has also been taken in Rudra Prasad Sarangi v. State of Orissa and others, 2021 (I) OLR 844. 18. Keeping in view the factual scenario and propositions of law, as discussed above, the opposite parties no. This view has also been taken in Rudra Prasad Sarangi v. State of Orissa and others, 2021 (I) OLR 844. 18. Keeping in view the factual scenario and propositions of law, as discussed above, the opposite parties no. 2 and 3 are directed to fix seniority of the petitioner, as per Explanation-I to Rule-15 of Rules, 1997, in the draft gradation list dated 01.09.2012 published by opposite party no.3, taking into account his date of appointment as 22.09.1981, and extend all consequential benefits, as due and admissible to him in accordance with law as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment. 19. In the result, the writ petition is allowed. However, there shall be no order as to costs. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment available in the High Courts website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Courts Notice No.4587, dated 25th March, 2020 as modified by Courts Notice No. 4798 dated 15th April, 2021.