Orissa High Court
P. Bengali Patro And 21 Ors., ... vs State Of Orissa And Ors. on 21 September, 2006
Equivalent citations: 104(2007)CLT103
Author: I.M. Quddusi
Bench: I.M. Quddusi, Pradip Mohanty
JUDGMENT I.M. Quddusi, J.
1. These are three Writ Petitions filed against the three Judgment and orders passed by the Orissa Administrative Tribunal, Bhubaneswar and its Cuttack Bench in three different O.As. Since in all these Writ Petitions, the matter relates to seniority, promotion and reservation of Head Masters of Government M.E./UGME Schools, they were heard together and are disposed of by this Judgment.
2. The first impugned order was passed by the Orissa Administrative Tribunal, Cuttack Bench, on 21.8.1997 which is under challenge in O.J.C. No. 13377 of 1997. The second impugned Order dated 04.10.1997 was passed by the Orissa Administrative Tribunal, Bhubaneswar which is under challenge in O.J.C. No. 1153 of 1998 and the last impugned order was passed by the Orissa Administrative Tribunal, Bhubaneswar, on 07.11.1998 which is under challenge in O.J.C. No. 4193 of 1999. The first and second Judgment of the Tribunal dated 21.08.1997 and 04.10.1997 were passed by the then Chairman of the Tribunal but the last one was passed by a larger Bench comprising of three members including the Chairman of the Tribunal.
3. All the Petitioners were initially appointed as Assistant Teachers in UGME Schools. At the relevant time the Government resolution dated 02.12.1991 was in-existence by which the criteria of promotion to the post of Headmasters of Government ME/UGME Schools and Sub-Inspector of Schools were fixed. It is necessary to reproduce the said Government resolution is hereunder:
No. 54879, Government of Orissa Education Department.
RESOLUTION Bhubaneswar, Dated the 2.12.1991 Sub: Appointment of Sub-Inspectors of Schools and Head Masters of Government M.E/U.G.M.E. Schools.
1. In this Department letter No. 11161 (2) dated 19.3.91, instructions were issued to include the posts of Head Masters of U.G.M.E. Schools in the cadre of Junior Subordinate Education Service. Prior to this Government order, posts of Head Masters of UGME Schools were being filled up by way of promotion from among the Primary school teachers and Assistant teachers of UGME Schools having trained graduate qualification. Consequent upon the issue of Government order No. 11161 (2) Dated 19.3.91, the practice of promoting Primary School Teachers and Assistant teachers of U.G.M.E. Schools having trained graduate qualification, to the post of Head Masters of U.G.M.E. Schools has been stopped. This has given rise to a number of vacancies in the posts of Head Masters of U.G.M.E. Schools. Besides, avenues of promotion for trained graduate primary school teachers and Assistant teachers of U.G.M.E. Schools to higher posts has been temporarily closed.
2. The question of constitutined a separate cadre for Primary School Teachers and providing promotional facilities to the Primary School teachers and Assistant teachers of U.G.M.E. Schools to higher posts was under consideration of Government for some time past. After careful consideration, Government have been pleased to decide that the posts of Head Masters of Government M.E/U.G.M.E. Schools and Sub-Inspectors of Schools will in future be filled up by way of promotion from among the Primary School Teachers and Assistant teachers of U.G.M.E. Schools having trained graduate qualification. Assistant teachers of High Schools borne in Junior S.E.S. cadre will not be posted as Head Masters of Government M.E./UGME Schools and sub-Inspectors of Schools.
3. For the purpose of promotion to the posts of Head Masters of Government M.E/U.G.M.E. Schools and Sub-Inspectors of Schools guidelines noted below will be followed:
(i) The gradation list of all Primary School and U.G.M.E./Government M.E. School teachers having trained graduate qualification will be prepared Revenue district wise by the Circle Inspector of Schools. The gradation list will be prepared on the basis of the date of their appointment.
(ii) In cases where a revenue district consists of more than one Circle Inspector of Schools, the gradation list will be prepared by the Circle Inspector of Schools stationed at the district head quarters. In case of Cuttack district, the Circle Inspector of Schools, Cuttack-I will be responsible for preparation of the gradation list. The Inspector responsible for preparation of the gradation list will collect requisite data from the other Inspectors and finalise the gradation list.
(iii) The Zone of consideration for promotion will be thrice the number of vacancies.
(iv) The select list will consist of twice the number of vacancies.
(v) The District Selection Committee consisting of the following members will constitute the selection authority for preparing the Select List. Inspector of Schools-Chairman. (Where there are more than one Inspector in a district, the senior-most Inspector will be the Chairman.
(vi) All District Inspector of Schools-Members. District Inspector of Schools stationed- at District headquarters- Member Secretary.
(vii) The Select List will remain valid for one year or till the preparation of the next Select List whichever is earlier.
4. The Head Masters and Sub-Inspectors of Schools thus promoted will not be included in the Junior S.E.S. cadre. Government are considering constitution of a separate cadre of Primary School Teachers and Supervising Officers for Elementary Education sector exclusively. Pending constitution of the cadre. Head Masters of UGME/Government M.E. Schools will also be posted as Sub-Inspector of Schools without being encadred in Junior S.E.S. The instructions, issued in this Department order No. 11161 (2) dated 19.3.91 that Head Masters of UGME Schools will be included in the cadre of Junior S.E.S. are hereby withdrawn.
5. All the District Inspector of Schools should immediately take steps to report the vacancies of Head Masters of UGME/Government M.E. Schools to the concerned Circle Inspectors who will prepare the gradation list of trained graduate teachers following the above guidelines and prepare the Select List of teachers for promotion to Head Masters of UGME/Government M.E. Schools and Sub-Inspector of Schools by convening the District selection Board. The preparation of gradation list should be completed by 31st of December, 1991. After preparation of the Select List, the Inspectors will appoint the Head Masters against the existing vacancies.
6. The Director, Elementary Education will review the progress of preparation of -gradation list, preparation of Select List, filling up vacancies of Head Masters of U.G.M.E. Schools every week revenue district wise and report to Government from time to time.
7. This Resolution will come into force with immediate effect.
ORDER: Ordered that the Resolution be published in the next issue of Orissa Gazette and copies circulated to all concerned.
By order of Governor.
Commissioner-cum-Secretary to Government.
4. According to the above quoted resolution, the Government had decided that the post of Head Masters of Government ME/UGME Schools and Sub-Inspectors of Schools will be filled up by way of promotion from among the Primary school teachers and Assistant teachers of UGME Schools having trained graduate qualification and the Assistant teachers of High Schools borne out in Junior SES cadre will not be posted as Head Masters of Government ME/UGME Schools and Sub-Inspectors of Schools and the gradation list of the teachers having trained graduate qualification was to be prepared Revenue district wise on the basis of dates of their appointments for the purpose of giving promotion. According to that gradation list, zone of consideration for promotion would be thrice the number of vacancies and the select list would consist of twice the number of vacancies. The criteria for promotion was seniority-cum-selection.
5. The Petitioners who were all trained graduates faced the selection and being selected were promoted vide Order dated 20.2.1992 to the post of Head Masters in U.P.(UGME) schools with the condition that the promotion would be provisional and the same would be subject to final results of the cases pending before the Tribunal bearing O.A. Nos. 1270 of 1991,1951 of 1991 and 2000 of 1991 and their continuance would depend upon the final results of these O.As.
6. The question had arisen before the Tribunal as to whether the promotion should be based on the basis of seniority to be reckoned from the date of appointment as teachers having B.Ed, qualifications or should be reckoned from the date of acquisition of B.Ed, qualification irrespective of the date of appointment who acquired the qualification after their appointments.
7. O.A. No. 521 of 1992 was filed challenging the promotion order of the Petitioners by Trinath Gouda and 11 others before the Tribunal which was decided on 18th April 1995. The Tribunal allowed the said O.A. and quashed the promotion order on the basis of its larger Bench (comprising of three members) decision, wherein the following observation was made.
The principle decided in the Judgments of the Orissa High Court in O.J.C. No. 7600 of 1984 decided on 12.9.1990 and also in O.J.C. Nos. 2859 of 1992 and 4034 of 1992 decided on 18.6.1993 conform to the view taken above that the acquisition of prescribed qualification which in the present case is B.Ed., the only relevant factor to be taken into consideration for the purpose of determining seniority amongst teachers belonging to the lower Subordinate Education Service for promotion to the cadre of Junior Subordinate Education Service. The whole length of service in the Lower Subordinate Education Service cadre will be relevant only in a case where two persons belonging to L.S.E.S. acquired the B.Ed. qualification on the same date. In all other cases the persons who acquired the BEd. qualification earlier would always be considered for promotion to the posts of Jr. S.E.S. earlier than the persons who obtained such qualifications later.
8. The Three Member Bench of the Orissa Administrative Tribunal had decided the O.A. before it (O.A. No. 1443 of 1990) vide Order dated 26.10:1994 relying on the above mentioned cases of this Court, one of which bearing OJC No. 2600 of 1984 has been reported in 1990 (II) OLR 422 Nilamani Mishra v. State of Orissa and Ors. in which this Court taking into consideration the statutory rules, namely, Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 which is applicable to the teacher and members of the staff of aided educational institutions had taken such view which has been followed by the larger Bench of the Tribunal as quoted above.
9. Consequent upon the quashing of the promotion order by the Tribunal in O.A. No. 521 of 1992 the Petitioners were ordered to be reverted vide Order dated 6.8.1996 passed by the Inspector of Schools concerned.
10. Against the above mentioned reversion order the Petitioners approached the Tribunal by filing O.A. No. 3661 (C) of 1996 which was dismissed, inter alia, on the ground that the impugned reversion order is based on the order of the Tribunal which relates to seniority list for promotion. While considering the promotion seniority is not the basic consideration. The zone of consideration, merit and suitability are to be kept in mind.
11. Mr. R.K. Rath, Learned Counsel for the Petitioners has submitted that vide Government Order dated 8.1.1996, the Resolution of the Government dated 2.12.1991 (quoted above) was modified to the effect that the gradation list will be prepared on the basis of date of passing B.Ed, examination. The said Government Order cannot have retrospective effect. Therefore, once an employee has already been promoted, the reversion could not have been made on the basis of the amendment made in the Government Resolution subsequently. He has also submitted that the earlier order of the Tribunal was based on the Judgment and Order dated 26.10.1994 passed in O.A. No. 1443 of 1990. But the said Judgment has been reversed by the three member Bench of the Tribunal. One of the members was common in the earlier Judgment as well as the subsequent Judgment which was passed in O.A. No. 609 of 1994 on 7.11.1998.
12. In the impugned Order dated 7.11.1998 passed in O.A. No. 609 of 1994, the larger Bench of the Tribunal observed that the earlier decision of the said Tribunal in O.A. No. 1443 of 1990 had been given under the wrong impression that the principle of counting seniority from the date of appointment was prescribed by the D.P.I., without being aware that a Resolution had been notified in the gazette by Government incorporating the same principle and also suffers from the infirmity of erroneous application of the ratio of a Judgment of the High Court, which has no relevance to the cause of action in that O.A. The Bench was not made aware of the Resolution issued by the Government while disposing of O.A. No. 1443 of 1999 and the Judgment of the High Court relied upon in that O.A. which was passed in O.J.C. No. 2600 of 1984 (Nilamani Mishra v. State of Orissa and Ors.) was a dispute between two Trained Graduate Teachers in aided High Schools, in which this Court had held that seniority should be counted on the basis of date of acquiring B.Ed. qualification. But the issue involved in O.A. No. 1443 of 1990 was a case of promotion to a post for which the eligibility qualification was Trained Graduate and the issue to be decided was the inter se seniority between persons possessing the same qualification at the time of promotion and whether the seniority should be determined with reference to the date of becoming eligible for the post or on the basis of length of service in LSES, the feeder cadre.
13. Before the Tribunal at any point of time or before us in the instant cases, the Government Resolutions issued on 2.12.1991 which has been quoted above and 8.1.1996 issued subsequently were not challenged and therefore, the policy of the State Government which was formulated through these Resolutions was liable to be followed invariably and there was no occasion for the Tribunal or this Court to consider the validity of the policy of the Government framed by the above two Government Resolutions.
14. The Petitioners were given promotion before the new policy came into force vide Government Resolution dated 8.1.1996 by which it was directed that the basis of preparation of gradation list would be the date of passing of B.Ed. examination. But before 8.1.1996 the policy of the State Government which was effective from the date of earlier Resolution, i.e., 2.12.1991, was to the effect that the seniority should be determined according to the date of appointments of the teachers having B.Ed. Qualifications. The Petitioners were promoted prior to implementation of the latter policy dated 8.1.1996 after the enforcement of the policy vide Resolution dated 2.12.1991 and therefore in our opinion their services would be governed by the policy laid down vide Resolution dated 2.12.1991 as quoted above)
15. The subsequent Resolution of the Government dated 8.1.1996 cannot have retrospective effect and therefore the Petitioners who were given promotion according to the seniority determined on the basis of date of their respective appointments cannot be adversely affected by implementing the policy vide Resolution dated 8.1.1996.
16. So far as the subsequent Judgment of the larger Bench of the Tribunal dated 7.11.1998 which is impugned in the O.J.C. No. 4193 of 1999 is concerned, wherein the-larger Bench of the Tribunal has observed that had the Resolution which was in force at the relevant time been produced and made available to the earlier Bench while disposing of the O.A. No. 1443 of 1990, the Tribunal would have taken a different view and that the earlier Bench disposed of O.A. No. 1443 of 1990, in the absence of knowledge of such Resolution appears to us to be the correct approach. The Government Resolution was a statutory rule which was binding on all and as such the Government could not be directed by any Court or the Tribunal to make a different criterion than the statutory rules. Therefore, the ratio laid down in O.J.C. No. 2600 of 1984 in the case of Nilamani Mishra v. State of Orissa and Ors. (Supra) wherein the dispute was between the two Trained Graduate Teachers in High Schools would not be applicable in the instant case as the Petitioners are not teachers of aided schools and the Government Resolution dated 2.12.1991 which has statutory force was applicable in their cases and not in the case of teachers of the aided schools.
17. In view of the above mentioned facts and circumstances, the orders dated 21.8.1997 and 4.10.1997 impugned in O.J.C. Nos. 13377 of 1997 and 1153 of 1998 are quashed and these Writ Petitions are allowed accordingly. O.J.C. No. 4193 of 1999 is disposed of with the modification in the impugned Judgment and order of the Tribunal dated 7.11.1998 as under:
The seniority list of the teachers who were already promoted on the basis of the Government Resolution dated 2.12.1991 shall not be disturbed. Further, the teachers who were entitled to be considered for promotion as Headmasters before the subsequent Government Resolution dated 8.1.1996 on the basis of their seniority which was to be determined pursuant to the Government Resolution dated 2.12.1991 shall be considered with effect from the date of promotion of their next juniors under the criteria laid down in the Government Resolution dated 2.12.1991.
There shall be no order as to costs.
Pradip Mohanty, J.
18. I agree