Orissa High Court
Sushant Kumar Behera And Others vs State Of Odisha And Others on 1 September, 2016
Author: Biswajit Mohanty
Bench: I. Mahanty, Biswajit Mohanty
ORISSA HIGH COURT, CUTTACK
W.P.(C) No. 11218 of 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
Sushant Kumar Behera and others ...... Petitioners
Versus
State of Odisha and others ...... Opp. parties
For Petitioners : M/S. G.A.R.Dora, J.K.Lenka,
P.K.Behera, and A.K.Mallick
For Opp. parties : Mr. S.N.Mohapatra, Standing Counsel
(School & Mass Education Deptt.)
M/s. S.Das, R.P.Dalai, K.Mohanty,
S.K.Samal, S.P. Nath and S.D.Routray
(for O.Ps.4 and 5)
M/s. Subash Ch. Acharya and C.R.Das,
(for O.Ps.6,7,8,9,10,11,12,13,14,15,16 and 17)
M/s. M.Pratap, J.Rath, B.K.Barik,
Ashok Mohanty
(for O.Ps.18,19, 20,21,22,23,24,25,26,27,28,
29,30,31,32,33 and 34)
M/s. Dilip Ku. Sahu and P.K. Mohanty
(for O.P.35)
Mr. Baidhar Sahoo and G.N.Sahu
(for O.P.36)
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Date of Judgment: 01.09.2016
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P R E S E N T:
THE HONOURABLE MR. JUSTICE I. MAHANTY
AND
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY
//2//
Biswajit Mohanty, J. The petitioners have filed the writ application
challenging the order dated 10.3.2015 passed by the Odisha
Administrative Tribunal, Bhubaneswar under Annexure-3. They
have further prayed that the order under Annexure-3 be quashed
holding the same as illegal.
2. The facts of the case are as follows:
The Government of Odisha in School and Mass Education
Department vide Resolution dated 4.12.2013 (Annexure-2),
decided to resolve the demand of Gana Sikshyaks working in the
State in the manner as indicated in the said resolution. For our
purpose, the relevant Paragraphs of the said Resolution are
Paragraphs-2, 3 and 7. For the sake of convenience, the same
are quoted hereunder:
"xxx xxx xxx
2. The trained Ganasikshyaks with +2 or above
academic qualification to be treated as Zilla Parishad Gr-II
Teacher, after completion of 6 years of continuous and
satisfactory service or after 3 years from completion of training
which ever is later.
The Zilla Parishad Ganasikshyaks, Gr-II to be allowed
the consolidated remuneration of Rs.7,000/- per month.
3. Zilla Parishad Ganasikshyaks, Gr-II after
completion of 3 years of continuous and satisfactory
engagement to be eligible to become Zilla Parishad Teachers,
in the Pay Scale of Rs.5,200-20,200/- with Grade pay of
Rs.2,200/- with D.A. and other allowances as admissible from
time to time. For this purpose, equivalent Level-V posts from
Elementary Cadre shall be transferred to the Zilla Parishads.
Statutory EPF would be considered.
xxx xxx xxx
//3//
7. Ganasikshyaks belonging to the category of
Scheduled Caste, Scheduled Tribe and Physically
Handicapped, having requisite academic qualification (+2 and
above) to be considered for Zilla Parishad Teachers after
completion of 6 years as Ganasikshyak. But the regularisation
will be deferred till the date of acquiring requisite training
qualification. However, they may get the benefit of
Zillaparishad Teacher with retrospective effect i.e., from the
date of completion of 6 years. Nevertheless the date of
acquiring training and academic qualification shall not be
beyond 31.03.2015 in view of the provisions of the RTE Act."
3. Challenge the condition of three years from completion of
training as stipulated in Paragraph-2 of the Resolution dated
4.12.2013 (Annexure-2) and with a prayer to consider the case
for her regularisation as Zilla Parishad Grade-II teacher, one
Basantilata Behera filed W.P. (C) No.8439 of 2014 before this
Court. The said writ application was disposed of on 14.5.2014
with the following observations:
"Considering the contentions raised by the parties
and after going through the records, it appears that the
petitioner has gained experience by discharging her duty
as Gana Sikshyak for a period of near about six years and
is otherwise eligible to be absorbed as a regular teacher.
As it is a matter of principle the Government has decided
that the Scheduled Castes and Scheduled Tribes
candidates will be absorbed to the category of regular
teachers after completion of six years continuous service
as Gana Sikshyak, but the general candidates who have
six years of continuous service as Gana Sikshyak and
having requisite qualification will be debarred from
getting the benefit. Therefore, the general candidates have
been discriminated. The Government may give preference
to the Scheduled Castes and Scheduled Tribes candidates
but that does not mean that the general candidates who
satisfy the requirement for absorption as regular teachers
should not be discriminated. The petitioner has made
grievance before opposite party no.1 vide Annexure-8
which is still pending for consideration.
//4//
In that view of matter, this Court disposes of the writ
petition directing opposite party no.1 to dispose of the
representation filed by the petitioner under Annexure-8 in
accordance with law within a period of three months from
the date of communication of this order."
4. In compliance of the above noted order, the case of the
petitioner of W.P. (C) No.8439 of 2014 was however rejected. It
may also be noted here that several O.As were filed with a prayer
to quash Paragraphs-2 and 3 of the Resolution dated 4.12.2013
(Annexure-2) on the ground that the same being contradictory to
the benefits extended in Paragraph-7 of the above noted
Resolution to un-trained and trained Scheduled
Castes/Scheduled Tribes/Physical Handicapped Gana
Sikshyaks. Those host of Original Application were disposed of
by the Tribunal on 10.3.2015 under Annexure-3 holding that
the classification among the Gana Sikshyaks belonging to
General category and those belonging to Scheduled
Castes/Scheduled Tribes/Physical Handicapped categories
relating to benefits of regularisation violates Article-14 of the
Constitution of India and is discriminatory and such
classification does not satisfy the criteria fixed by the Hon'ble
Supreme Court. Accordingly, learned Tribunal directed the State
respondents to issue appropriate orders modifying the
Resolution dated 4.12.2013 (Annexure-2) so as to bring the
same in tune with provisions of Constitution of India.
//5//
Challenging the said order, the present writ application has been
filed. It may be noted here that the State has filed no application
challenging the order dated 10.3.2015 passed under
Annexure-3.
During pendency of the present writ application, vide
Resolution dated 25.2.2016, the Government of Odisha in
School and Mass Education Department withdrew the resolution
under Annexure-2 covering Carrier Advancement Policy of Gana
Sikshyaks. Further vide resolution No.14467/SME.,Dt.25.7.2016,
XIII-SME-AE-06/2016
the Government of Odisha in School and Mass Education
Department has made it clear that Gana Sikshyaks who have
+2/Degree qualification with either C.T./B.Ed and who have
completed 8 years of continuous and satisfactory engagement
shall be regularised as Elementary Level-V teachers in the year
2016-17 after detail modalities on regularisation are worked out
by the Government in School and Mass Education Department.
It has also been made clear that on regularisation as Elementary
Level-V teachers, they would be entitled to salary in the pay
scale of Rs.5,200-20,200/- with Grade Pay of Rs.2,200/- with
D.A. and other allowances as admissible from time to time and
Gana Sikshyaks having no requisite academic qualification of
//6//
+2/Degree and training qualification of either C.T. and B.Ed
shall not be regularised as Elementary Level-V teachers.
5. Heard Mr. G.A.R.Dora, learned Senior Counsel for the
petitioners, Mr. S.Mohapatra, learned Standing Counsel for
School and Mass Education Department and learned counsel for
the intervenors.
6. Mr. Dora, learned Senior Counsel for the petitioners
submitted that the Government was justified in providing the
relaxed eligibility criteria as provided under Paragraph-7 of the
Resolution in case of Scheduled Castes/Scheduled
Tribes/Physical Handicapped categories candidates under
Annexure-2 as these categories always required to be differently
treated. In this context, he relied on a decision of the Hon'ble
Supreme Court in S.S.Sharma and others v. Union of India
and others reported in 1980 (3) SLR, 511. He further submitted
that since qualified Scheduled Castes/Scheduled
Tribes/Physical Handicapped categories candidates are not
available to fill up the reserved category post, the State-opp.
parties have rightly provided relaxed criteria under Paragraph-7
of resolution dated 4.12.2013 under Annexure-2 and the same
cannot be termed as discriminatory. In such background, he
prayed that the impugned order be quashed and petitioners be
allowed the benefits as per Annexure-2.
//7//
7. Mr. S.Mohapatra, learned Standing Counsel, on the other
hand, submitted that the impugned order under Annexure-3
passed by the learned Tribunal cannot be faulted and pursuant
to the same, the Government of Odisha in School and Mass
Education Department vide Resolution No.4168/S & ME
XVII-SME-LC-II-35/2015
dated 25.2.2016 has already withdrawn the Resolution under
Annexure-2 and further vide Resolution No. 14467/SME.,
XIII-SME-AE-06/2016
Dt. 25.7.2016, the State Government has come out with far
better and uniform Career Advancement Policy for Gana
Sikshyaks which makes it clear that Gana Sikshyaks who have
+2/Degree qualification with either C.T./B.Ed. and who have
completed 8 years of continuous and satisfactory engagement
will be regularised as Elementary Level-V teachers in the
year-2016-17 after detail modalities on regularisation are worked
out by the Government. In view of the Resolution dated
25.2.2016 and 25.7.2016, according to Mr. Mohapatra, learned
Standing Counsel for School and Mass Education Department,
the writ application has become infructuous as the Resolution
dated 4.12.2013 under Annexure-2 which Mr. Dora, learned
Senior Counsel for the petitioners defending has already been
withdrawn on 25.2.2016. Such stand of Mr. Mohapatra was
//8//
supported by learned counsel appearing for the intervenor-opp.
parties.
8. With regard to the contentions of by Mr. Dora, learned
Senior Counsel for the petitioners defending the relaxed eligibility
criteria provided under Paragraph-7 of the Resolution dated
4.12.2013 under Annexure-2 as justified, we are unable to
accept such a contention. This is because in the instant case,
relaxation of such eligibility criteria with regard to Scheduled
Castes/Scheduled Tribes/Physical Handicapped categories
candidates at Paragraph-7 is not vis-à-vis the same
positions/posts as covered Paragraphs-2 and 3 of Annexure-2.
While Paragraph-2 provided for treating Gana Sikshyaks as Zilla
Parishad Grade-II Teachers on their fulfilling the requirements
indicated therein, the paragraph-3 dealt with the modalities for
making such Grade-II Teachers as Zilla Parishad Teachers. In
sharp contrast as per Paragraph-7, the Gana Sikshyaks
belonging to categories of Scheduled Castes/Scheduled
Tribes/Physical Handicapped were allowed to be directly
considered for the post of Zilla Parishad Teachers. There, there
existed no provision relating to Grade-II Teachers, i.e., the
intermediate stage as has been provided for unreserved
categories candidates under Paragraphs- 2 and 3 of Annexure-2.
Thus, whereas the unreserved category of Gana Sikshyaks would
//9//
be made Zilla Parishad Teachers only after they have become
Zilla Parishad Grade-II Teachers but in case of Scheduled
Castes/Scheduled Tribes/Physical Handicapped category
candidates vide Annexure-7 subject to the condition provided
therein could be made Zilla Parishad Teachers directly skipping
the stage of Zilla Parishad Grade-II Teachers. Thus, under
paragraph-7, the Scheduled Castes/Scheduled Tribes/Physical
Handicapped category candidates were getting double benefits in
a single stroke which was denied to Gana Sikshyaks of
unreserved category as would be clear from a reading of
Paragraphs-2 to 7 of Annexure-2. This is a clear case of hostile
discrimination against un-reserved category of Gana Sikshyaks
without any rationale. Further, under Paragraph-7 even the
Gana Sikshyaks belonging to Scheduled Castes/Scheduled
Tribes/Physical Handicapped category were entitled to get
benefit of Zilla Parishad Teacher simply on completion of 6 years
of service, though their services would not be regularised unless
they acquire the training and academic qualification. But such
benefit was not extended to Gana Sikshyaks of unreserved
category. All such provisions were made without any rational
nexus with the object sought to be achieved, i.e. to give adequate
representations to Scheduled Castes/Scheduled Tribes/Physical
Handicapped category in the Elementary Cadre at Level-V. This
//10//
is because as the learned Tribunal has rightly observed that
there is no quantifiable data to show the percentage of teachers
belonging Scheduled Castes/Scheduled Tribes/Physical
Handicapped category candidates in the Elementary Cadre at
Level-V or among the Gana Sikshyaks who are sought to be
regularised. In fact, there exists no quantifiable data on record
showing percentage of reserved category teachers at Elementary
Cadre Level-V falling short of the required percentage for such
categories. Thus, there was no rationale for making special
provisions under Paragraph-7 for candidates belonging to
Scheduled Castes/Scheduled Tribes/Physical Handicapped
categories. Therefore, the submission of Mr. Dora on this aspect
is without any merit. With regard to the decision cited by Mr.
Dora in the case of S.S.Sharma (supra), we are of the view that
the same is factually distinguishable and has no application to
the present case. In that case, the petitioners challenged the
validity of Central Secretariat Service (Amendment) Rules, 1979
and also the Regulation consequent thereupon for the purpose of
holding a departmental competitive examination only of the
candidates belonging to S.C. and S.T. for filling up the vacancies
reserved for these categories of Grade-I Central Secretariat
Service. Such challenge was repelled by Hon'ble Supreme Court.
In that case in the normal process of selection for promotion to
//11//
Grade-I post while unreserved vacancies were filled up, 27
vacancies reserved for the members of S.C. and S.T. community
could not be filled up as no candidate belonging to those
category was found suitable for the purpose of filling up those
reserved posts. Accordingly, the Government of India decided to
hold a limited departmental examination confining the same to
the members of S.C. and S.T. with relaxed conditions of
eligibility. In that case the petitioners case was that Government
of India was not empowered to fill up the vacant reserved posts
by taking recourse to a departmental competitive examination
and instead Government should have de-reserved the vacancies
and made those vacancies available to candidates falling under
general categories so that the petitioners could have been
considered for promotion. In that case, eligibility requirement for
criteria was relaxed in order to fill up vacant posts of S.C. and
S.T. category. In the present case, there exists no such
quantifiable data on vacancy position vis-à-vis posts reserved for
Scheduled Castes/Scheduled Tribes/Physical Handicapped
category candidates in Elementary Level-V cadre which the State
is not able to fill up in normal process. Therefore, the ratio
decided in the said case is not applicable to the present case.
Further in that case there was no question of granting double
benefits to the S.C. and S.T. candidates at one go unlike the
//12//
present case. Therefore, with great respect, ratio of the decision
S.S.Sharma (supra) has no application to the present case. Even
otherwise, this Court is of the view that since the Resolution
dated 4.12.2013 under Annexure-2 which the petitioners are
defending has been already withdrawn by the Government of
Odisha in School and Mass Education Department vide its
Resolution dated 25.2.2016, the substratum of the case of the
petitioner has vanished. It may be noted here that though the
Tribunal directed for modification of the Resolution dated
4.12.2013 under Annexure-3, however, the said Resolution has
been withdrawn by the State Government vide Resolution dated
25.2.2016. Further, the Government has issued a new
Resolution dated 25.7.2016 governing the Career Advancement
Policy for Gana Sikshyaks and the same is in force.
For all these reasons, we are not inclined to interfere with
the matter.
Accordingly, the writ application stands dismissed. No
cost.
.................................
Biswajit Mohanty, J.
I Mahanty, J.I agree.
................................. I. Mahanty, J.
High Court of Orissa, Cuttack Dated 1st September, 2016/bns