HIGH COURT OF ORISSA: CUTTACK W.P.(C) Nos. 14979, 9154, 9153, 20566, 9635, 9639, 9693, 10242 and 21091 of 2010. W.P.(C) No. 14979 of 2010 In the matter of application under Articles 226 & 227 of the Constitution of India. ---------- State of Orissa & others ………… Petitioners -Versus- All Orissa Lower Secondary ..……….. Opp. Parties Teachers’ Association & others For Petitioners : Mr. R.Behera,Sr.Standing Counsel (S & ME) For Opp. parties : M/s Sharat Kumar Dash, Sr.Advocate, N.N.Mohapatra,S.K.Mahanta, O.N.Devdas, Advocates. (For O.P.Nos.1,2,3,5,6 & 7), M/s.Sumanta Kumar Nayak, S.K.Sahu,A.B.Parida,S.S.Ray, B.Seth,R.K.Patnaik,A.K.Nayak, D.K.Satpathy, B.K.Nayak, B.N.Satpathy, Mr.J.Mishra-2,S.K.Nayak-1 Debasmita Nayak, S.K.Sahoo, M/s.D.R.Patnaik, S.Patnaik, N.S.Panda,N.Biswal,B.R.Kar and J.R.Kar, Mr.Saroj Kumar Jee, M/s. Samarendra Patnaik, B.R.Kar, J.Kar & P.Panda (for Intervenor), M/s.S.N.Biswal, P.Bhutia (for Intervenor), M/s. A.K.Rath, A.K.Nath 2 W.P.(C) No. 9154 of 2010 Harihar Rath & others ………… Petitioners -Versus- State of Orissa and others ……….. Opp. Parties For Petitioners : Mr. B. Routray, Sr.Advocate M/s.D.K.Mohapatra,S.Jena, S.Das, S.K.Samal, For Opp. parties : Mr. R.Behera,Sr.Standing Counsel (S & ME), Mr.J.K.Mishra-2 (for O.P.Nos.19 to 23), M/s.N.N.Mohapatra, G.Acharya S.K.Mohanta,O.N.Devdas (for Caveator), M/s. Sashi Bhusan Jena & Associates(for O.P. No.15), M/s.Sadasiva Patra & Associates (for O.P.No.16), M/s.Durgesh Narayan Rath & S.N.Rath (for O.P.No.13) W.P.(C) No. 9153 of 2010 Krushna Chandra Das ………… Petitioner -Versus- State of Orissa and others ……….. Opp. Parties For Petitioner : M/s Jagannath Patanaik, Sr. Advocate. M/s D.K.Mohapatra,B.B.Routray S.Das, R.P.Dalari, S.K.Samal, Advocates. For Opp. parties : Mr. R.Behera,Sr.Standing Counsel (S & ME) (For O.P.Nos.1 to 3) 3 Mr.R.K. Rath, Sr.Advocate (For O.P.Nos. 4 to 13) Mr.J.K.Mishra-2, Advocate (For O.P.Nos. 15 to 19) W.P.(C) No. 20566 of 2010 Kanhu Charan Maharana ………… Petitioners and others -Versus- State of Orissa and others ……….. Opp. Parties For Petitioners : M/s Sanjit Mohanty, Sr.Advocate & Associates. M/s Mahendra Ku.Sahoo, S.K. Rath, Advocates. For Opp. parties : Mr. R.Behera,Sr.Standing Counsel (S & ME) (For O.P.Nos.1 to 4) Mr.J.K. Mishra, D.Deo, B.B.Routray, D.Routray, S.Jena, S.K.Nayak-1 & Associates. W.P.(C) No. 9635 of 2010 Rabindranath Jena ………… Petitioners and others -Versus- State of Orissa and others ……….. Opp. Parties For Petitioners : M/s J.K.Mishra-2 & Associates. For Opp. parties : Mr. R.Behera,Sr.Standing Counsel (S & ME) W.P.(C) No. 9639 of 2010 All Utkal Primary Teacher’s ………… Petitioners Federation & others -Versus- State of Orissa and others ……….. Opp. Parties 4 For Petitioners : M/s J.K.Mishra-2 and Associates. For Opp. parties : Mr. R.Behera,Sr.Standing Counsel (S & ME) W.P.(C) No. 9693 of 2010 Rabindranath Jena ………… Petitioners and others -Versus- State of Orissa and others ……….. Opp. Parties For Petitioners : M/s J.K.Mishra-2 and Associates. For Opp. parties : Mr. R.Behera,Sr.Standing Counsel (S & ME) W.P.(C) No. 10242 of 2010 Kailash Chandra Sahoo ………… Petitioner -Versus- State of Orissa and others ……….. Opp. Parties For Petitioner : M/s Durgesh N. Rath, S.N.Rath, P.K.Rout. For Opp. parties : Mr. R.Behera,Sr.Standing Counsel (S & ME) (For O.P.Nos.1 to 3) Mr.S.K.Das,N.N.Mohapatra, S.K.Mahunta, O.N.Devdas, Advocates. (For O.P.Nos.4 to 8) W.P.(C) No. 21091 of 2010 Kamala Kanta Das ………… Petitioner -Versus- State of Orissa and others ……….. Opp. Parties 5 For Petitioner : M/s Shashi Bhusan Jena, S.Behera, S.S.Mohapatra, A. Mishra, S.Soren,Advocates. For Opp. parties : Mr. R.Behera,Sr.Standing Counsel (S & ME) P R E S E N T: THE HON’BLE MR. JUSTICE B.P. DAS AND THE HON’BLE MR. JUSTICE B.K.MISRA ---------------------------------------------------------------------------------------- Date of Judgment: 23.12.2011 ---------------------------------------------------------------------------------------- B.K.MISRA, J In this bunch of writ petitions the petitioners seek to challenge the common order of the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. Nos. 2624(C), 2485(C), 2486(C) of 2009 and O.A. No.43(C ) of 2010 dated 27.4.2010 wherein, direction has been issued to Opposite Parties to fix the inter se seniority of the teachers as per Annexure-2 i.e. Resolution issued by the Government in Education Department bearing No. 22044-VEM-18/92-E dated 12.5.1992. It was further directed by the learned Tribunal to complete the whole exercise within a period of six months from the date of receipt of copy of the order and follow up action be taken in accordance with the said gradation list prepared pursuant to such orders. It was also held by the learned Tribunal that the teachers who were declared as Government servants from 5.9.1989 vide Government Resolution in the erstwhile Education and Youth 6 Services Department dated 26th September, 1989 (Annexure-1) cannot be covered under the Orissa Elementary Education (M.R.C.S.T.O.) Rules, 1997 and thus cannot be treated as included in the Orissa Elementary Education Services Level-V cadre. 2. Primary Schools form the spring board to the future of the nation wherein the children are exposed to learning at the first instance. The object of such bodies is to rear up the children for the future of the nation and thus great responsibility is reposed on the teachers to ably shape the innocent children in the building of the nation. Challenges of the teachers are far and wide and should they fail to discharge the onerous responsibility reposed on them far and square the nation is threatened with abject illiteracy/delinquency which a nation hardly can afford to bear. Having in view the responsibility of building of a cohesive nation the State is obliged to look after the basic needs and attend to the genuine grievances of the teaching faculty so that the Country is assured of a healthy and prosperous future. 3. The conflicting decisions of the Government on 26th September, 1989 (Annexure-1), 12.5.1992 (Annexure-2), 6.11.2000 (Annexure-3), 14.11.2000 (Annexure-4) and 12.6.2002 (Annexure-5) and lastly the letter of the Government in the Department of the School & Mass Education Department vide their letter No. II-S.M.E./C-31/08-14523/S.M.E. dated 10.9.2009 7 (Annexure-7) generated a sense of insecurity and frustration with teachers about their seniority and other consequential service benefits which forced them to approach the corridors of power and later Courts of justice regardless of their essential obligation to bring up children and shaping their future. 4. Having been called upon in these writ applications to adjudicate upon the legality and constitutionality of the orders of the learned Tribunal, this Court is obliged to look into the background realities to the facts situation. Bereft of unnecessary minute details the uncontroverted facts can be stated as follows:- 5. The State Government in the erstwhile Education and Youth Services Department vide Resolution dated 26.09.1989 (Annexure-1) declared all the Primary School Teachers of the Schools managed by Panchayat Samiti as well as Urban Local Bodies and all the schools directly administered by the District Inspector of Schools as well as the Assistant Teachers and Headmasters of upgraded M.E.Schools under the Education and Youth Services Department and Urban Local Bodies who are in regular service excepting those who are on adhoc appointments and who have been appointed against leave vacancies and who have been temporarily appointed for a certain specific period as Government Servants with effect from 5.9.1989. Further the Government in Education Department in their Resolution 8 No.22044-VEM-18/92-E dated 12.5.1992 (Annexure-2) decided to take over 4630 (3802 + 828) Upper Primary (M.E.) Schools along with their assets both movable and immovable and employees to the control of the Government with effect from 1.4.1991. While preparing the gradation list of teachers of Elementary Service Level-V, the District Inspector of Schools (for short the ‘D.I. of Schools’) entertained doubts as to whether the Teachers of non Government Primary Schools who are declared as Government servants with effect from 5.9.1989 would be shown as senior in the gradation list than that of those Teachers of the Upper Primary Schools whose management was taken over by the Government with effect from 1.4.1991 and also difficulties were experienced as to which would be the guiding factor for finalizing such gradation list within the meaning of Explanation-I of Rule-15 of the Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 (hereinafter referred to as the ‘Orissa Elementary Education, Rules, 1997). Being cognisant of such piquant situation with regard to preparation of gradation list of Level-V services of the Orissa Elementary Education Rules, 1997 the Government issued instructions vide their letter no.29653/SME dated 6.11.2000 (Annexure-3) directing the Director, Elementary Education Orissa, Bhubaneswar to prepare the gradation list under 1997 Rules by taking into consideration the service seniority as length of service which would 9 be the criteria in respect of both categories of teachers. The aforesaid view of the Government in Education Department was taken with the concurrence of the Law Department vide U.O.R. No.1278/L dated 21.08.2008. But the Director, Elementary Education, Orissa in his letter no. 22634 dated 14.11.2000 informed all the District Inspector of Schools not to take any action on the basis of Annexure-3 till further clarification is received. Ultimately, the State Government issued instructions in their letter no.14523 dated 10.09.2009 to the Director, Elementary Education Orissa, Bhubaneswar (Annexure-7) to fix up inter se seniority of the teachers of Primary Schools with effect from the date of appointment as Government Primary and Upper Primary/M.E. School teachers as defined in Explanation-1 of Rule 15 of the Orissa Elementary Education, Service, 1997. Further, the State Government in Annexure-7 directed the Director, Elementary Education, Orissa to take immediate action for finalization of the gradation list of Level-V teachers on the basis of Annexure-7. Such decision of the Government was challenged by the Orissa Lower Secondary Teachers Association represented by its General Secretary Sri Prakash Chandra Jena and six others who are the opposite parties in Writ Petition No.14979 of 2010 filed by the State before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack which was registered as O.A. No.2486(C) of 2009. The State Government entered appearance and filed their counter 10 before the learned State Administrative Tribunal. The learned Administrative Tribunal disposed of the O.A. No.2486 (C ) of 2009 and the batch of similar cases filed by others and while allowing the prayer of the petitioners directed as follows:- “xxx However, neither in Resolution at Annexure-1, nor in the Orissa Education Act, 1969 nor in the Education Code, these schools have been defined as Govt. Schools which is the ‘quintessential’ for being covered under Rule-3 of the Orissa Elementary Education (MRCSTO), Rules, 1997 and for inclusion of teachers declared as Govt. servants with effect from 5.9.89, as per Annexure-1, in the Orissa Elementary Education Service cadre as per the Orissa Elementary Education (MRCSTO) Rules, 1997. Hence, Assistant Teachers of Non- Govt. Primary Schools deemed Govt. Servants from 5.09.89 cannot be covered under the Orissa Elementary Education (MRCSTO) Rules, 1997 from the date of their being treated as Govt. servants from 5.9.89 as the schools in which they continued to serve after being declared Govt. servants from 5.9.89 were not specifically declared as Govt. Schools at any point of time, and such schools can at best only be classified as ‘public managed schools’ as per Rule-2 of the Education Code which is not inconsistent with the Orissa Education Act, 1969. Moreover, as Rule-3 of the Orissa Elementary Education (MRCSTO) Rules, 1997 and Explanation-1 below Rule-15 lay emphasis on the term Government Primary/Upper Primary Schools, clearly stressing the word Government, such teachers though declared as Govt. servants since 5.9.89 cannot be treated as included in the Orissa Elementary Education Service Level-V cadre. For the reasons indicated above, we finally dispose of all these O.As. with a direction to the Respondents to fix the inter se seniority of the teachers as per Annexure- 2 Resolution issued vide no. 22044-VEM- 11 18/92-E dtd. 12.5.1992. The whole exercise be completed within a period of six months from the date of receipt of copy of these orders and follow up action be taken in accordance with the said gradation list prepared in pursuance of these orders.” 6. Being aggrieved by the order of the learned State Administrative Tribunal not only the State but also some of the Primary School Teachers who have been declared as Government Servants under Annexures-1 and 2 filed separate writ petitions including many interveners. The State Government in Writ Petition No.14979 of 2010 while challenging the orders of the learned State Administrative Tribunal asserted that the findings of the Tribunal that though the teachers of Primary Schools declared to be Government Servants under Annexure-1 with effect from 5.9.1989 but they continued to work in schools managed by the Panchayat Samiti, Urban Local Bodies and Schools directly administered by the District Inspector of Schools which are not Government institutions and thus cannot be equated with teachers who have been declared as Government servants and the Management of those schools which have been taken over by the Government with effect from 2.1.1991 under Annexure-2, are unsustainable and erroneous. According to the State, the Tribunal has mis-interpreted the Explanation-1 of Rule-15 and the Tribunal should have given weightage to the decision of the Government under Annexure-7 in view of the clear and unequivocal provisions of Rule 19 of Orissa Elementary 12 Education Rules, 1997 which speaks that if doubt or dispute which would arise in respect of any of the rules framed under the Orissa Elementary Education Rules, 1997 the matter be referred to the Government for decision. It was very vociferously asserted by the State that when doubts were entertained about finalization of the gradation list in respect of Primary School Teachers who were declared as Government Servants under Annexures-1 and 2 the matter was referred to the Government and ultimately the Government in their wisdom issued instructions to the Director, Elementary Education Orissa under Annexure-7 and when that clinched the issue, the Tribunal was not justified in mis- interpreting such settled position. 7. It is the case of the State that the Primary School Teachers managed by the Panchayat Samiti as well as Urban Local Bodies and all the schools directly administered by the District Inspector of Schools as well as Assistant Teachers and Headmasters/Headmistress of upgraded M.E. Schools under the Education and Youth Services Department and Urban Local Bodies who were in regular service except those who are on adhoc appointment or who are appointed on leave vacancy or temporarily appointed for a specific period were declared as Government Servants with effect from 5.9.1989 vide erstwhile Education and Youth Services Department Resolution dated 26.09.1989 vide Annexure-1. Similarly, vide Annexure-2, the 13 Government in Education Department Resolution dated 12.05.1992 decided to take over 4630 Upper Primary M.E. Schools whose management resolved to hand over the management of the schools along with their assets (movable and immovable) and employees to the control of the Government with effect from 1st April, 1991 and those employees would be treated as Government Servants with effect from 01.04.1991 only. In the meanwhile, the Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 was enacted by the State Government. Rule 15 of the said Orissa Education Rule, 1997 deals with seniority and preparation of gradation list of those teachers and Explanation-1 of Rule-15 envisages that all persons working as Assistant Teachers of Government Primary and Upper Primary School shall be treated as Level-V from the date of commencement of said rule. The seniority of such persons shall be determined with reference to the date of appointment as such. Needless to mention here that Rule-3 of the Orissa Elementary Education Rule, 1997 speaks of five levels. The State Government under Annexure-3 dated 6.11.2000 directed the Director Elementary Education, Orissa to prepare the gradation list of teachers in respect of Level-V teachers services, seniority or length of service should be taken as the guiding factor. It was further specifically ordered that the private period of service shall not be treated as 14 Government service for any other purpose. But the Government in School and Mass Education Department on 14.11.2000 vide their letter under Annexure-4 instructed all the Inspector of Schools that they shall not take any action under Annexure-3 as further clarification in the matter was sought for from the Government. Ultimately, after examining the matter the Government under Annexure-7 directed that the inter se seniority of the teachers of the Primary School Teachers and Upper Primary (M.E. Schools) to be determined with effect from the date of taken over i.e. the date of appointment as Government Primary and Upper Primary (U.P. & M.E. School teachers) as defined in Explanation-1 of Rule-15 of Orissa Elementary Rules, 1997. Being aggrieved by the said letter of the Government under Annexure-7, the Lower Secondary Teachers Association represented through its General Secretary and other teachers working as Assistant Teachers and Head Masters in different U.P. Schools challenged the same before the Orissa Administrative Tribunal in O.A. No. 2486 (C) of 2009 on the ground that preparation of gradation list of Level-V teachers is contrary to Explanation-1 of Sub-Rule, 15. The findings of learned Tribunal in O.A. No. 2486 (C) of 2009 has been challenged in this writ petition by the State mainly on the ground that the Tribunal misinterpreted Explanation-1 of Rule-15. It is also the stand of the State that teachers of Non-Government Primary Schools of 15 the State when declared as Government servant with effect from 5.9.1989 under resolution at Annexure-1, were borne into the cadre on that day i.e. 5.9.1989 and when the teachers of aided Non-Government M.E. Schools were declared as Government employees on 1.4.1991 vide Annexure-2, there hardly remains any ambiguity regarding their date of appointment as the date of appointment means their appointment into the Government service. It is the further specific case of the State that after the Orissa Elementary Education Rules, 1997 came into force common gradation list was prepared consisting of Assistant Teachers of the old existing Government Primary Schools, who were declared as Government employees with effect from 5.9.1989 and 1.4.1991 and in that gradation list the position of the teachers of Ex. Government Primary Schools were placed at top and thereafter the teachers of the Ex. Non-Government U.P. Schools who were declared as Government Servant with effect from 1.4.1991 were placed below them. Such gradation list was prepared from time to time i.e. from 1999 till 2008 and on the basis of such gradation list promotions had been given from Level-V to Level-IV and those have never been challenged in any forum nor those appointments have been cancelled till date. But on the other hand they have been enjoying all promotional benefits in the promotional post as per rules. It is the further stand of the State that the applicants in O.A.No.2486 (C) of 2009 16 and others have never challenged the gradation list which is in existence from 1999 to 2008 or till filing of the said case and thus the five applicants in the said O.A. have acquiesced the long prevailing principle of determining seniority and are estopped to challenge the same after long lapse of two decades. Thus by the order of the learned Tribunal in the said O.A. No.2486 (C) of 2009 etc. the settled position is going to be unsettled and large number of teachers are to be affected which would cause a serious dent on the primary education and would also affect the promotions to the post of Headmaster Level-IV to Level-III and therefore the findings of the learned Tribunal are to be quashed. 8. The opposite party nos.1,2,3,5,6 & 7 in their counter affidavit while praying for dismissal of the writ petition inter alia pleaded that though admittedly under Annexure-1 the teachers of non-Government Primary Schools, Panchayat Samiti, Urban Local Bodies and school administered by the District Inspector of Schools as well as the Assistant Teachers and Headmasters in Upgraded M.E. Schools under the Education and Youth Services Department and Urban Local Bodies were declared as Government employees with effect from 5.9.1989, but those schools continued to be non-Government Primary Schools/Upgraded M.E. Schools and resultantly those teachers do not belong to Orissa Elementary Education Service in view of the stipulation contained in Rule 3(2)(i) of the Orissa Elementary 17 Service Rules, 1997. In contrast the Government in the Education Department in their Resolution under Annexure-2 took over 4630 aided non-Government Upper Primary (M.E.) Schools along with their assets and employees with effect from 1.4.1991. Pursuant to such resolution under Annexure-2 dated 12.5.1992 the opposite party nos.2 to 7 and members of Opposite Party no.1 Association became Government servants with effect from 1.4.1991. But erroneously the Government while considering finalization of the gradation list among the teachers who were declared as Government Servants with effect from 5.9.1989 and 1.4.1991, pursuant to the Resolution adopted under Annexures-1 and 2, issued the impugned letter on 10.9.2009 issued by Department of School & Mass Education No- 11-SME/C-31/08-14523/SME dated 10.9.89 under “Annexure- 9” and directed the Director of Elementary Education to fix up inter se seniority of the Primary School Teachers and Upper Primary (M.E. Schools) with effect from the date of taken over as they became the Government Servant i.e. the date of appointment as Government Primary and Upper Primary/M.E.School Teachers as defined in Explanation-1 of Rule 15 which resulted in filing of the Original Application No.2486 (C ) of 2009 before the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack. It is the specific case of the opposite party nos. 1, 2,3,5,6 & 7 that with the enactment of Orissa Education Act, 1969 and Rules framed 18 there under the definition of public and private management given in Rule-2 of Orissa Education Code stands repealed. The definition of Private Educational Institution has been given in Section-3(o) read with Section 27(4) of the Orissa Education Act, 1969. The State Government issued resolution and Office memorandum from time to time making clear distinction between the non-Government and Government Primary Schools (Annexures-C, D, E & F) respectively. The non- Government Primary Schools as referred to in the resolution dated 16.9.1989 are those schools which are managed by Panchayat Samiti and Urban Local Bodies and of the schools directly administered by the District Inspector of Schools etc. within the meaning of Secttion-3(o) of the Orissa Education Act, 1969. Thus, in view of the position of law under different acts and rules, the impugned order at Annexure-9 of the learned Orissa Administrative Tribunal can be held to be just and legal. 9. There are many interveners in W.P(C) No.14979 of 2010 and they have filed their counter affidavit in which they have supported the stand of the State Government while challenging the findings of the learned Tribunal. 10. Similarly, several writ petitions registered as W.P.(C ) Nos.9635, 9639, 9693, 10242 & 21091 of 2010 have also been filed challenging the impugned order passed by the learned Orissa Administrative Tribunal in O.A.No.2486( C ) of 2009 and 19 their stand in those writ petitions are also in the light of the writ petition filed by the State challenging the order of the learned Tribunal wherein those writ petitioners have prayed that they should be given promotion to the higher post according to their service seniority and all others service benefits. 11. W.P(C) No.20566 of 2010 was filed by Kahnu Charan Moharana and four others challenging the common judgment of the learned Tribunal in O.A.Nos.2486(C), 2485(C) as well as 2624 of 2009 wherein it is the case of the petitioners that the direction of the learned Tribunal for preparation of gradation list by taking into account the date of taken over i.e. 1.4.1991 to be the basis for counting their service towards inter se seniority instead of their date of appointment of the petitioners and similarly situated teachers of more than 5020 Government U.P.M.E. Schools whose management were taken over by the Government with effect from 1.4.1991 to be unconstitutional, arbitrary and unreasonable. According to the petitioners that the clarification issued by the State Government on 6.11.2000 with the approval of the Law Department was never withdrawn at any point of time. It is also their case that the present petitioners belong to the Government Upper Primary M.E.Schools which were taken over with effect from 1.4.1991 as well as non Government Primary Schools and non-Government U.G.M.E. Schools teachers were declared as Government Servants with effect from 5.9.1989 in the 20 event of preparation of gradation list under the Elementary Cadre Rules adhering to the date of declaration as Government servants of different groups of teachers, the