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PETITIONER: PARMANANDA DAS

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT:       21/08/1997

BENCH: SUJATA V. MANOHAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                 THE 21ST DAY OF AUGUST, 1997 Present:            Hon’ble Mrs. Justice Sujata V. Manohar            Hon’ble Mr. Justice M. Jagannadha Rao Ms. Lata Krishnamurthi, Adv. (NP), Vinoo Bhagat, C.S.S.Rao, J.P.Mishra, S.C.Patel, Advs. for the appellants. Jana Kalyan Das, (Dr. Maya Rao and P.N.Mishra) Advs. (NP), Ms. Kirti Mishra, Raj Kr. Mehta, Advs. for the Respondents. Sibo Shankar Mishra and Uma Nath Singh, Advs. for the intervenor in C.A.No. 5689-5711/97                       J U D G M E N T      The following Judgment of the Court was delivered: With C.A.No. 8404-8408\95 C.A.No.5689-5711\97 @ SLP (C) No.22941-22963\94 C.A.No.5712-5715\97 @ SLP (c) No. 12054-12057\95 C.A.No.5716-5718\97 @ SLP (C) no. 14273-75\95 C.A.No.5719\97 @ SLP (C) No. 8676\96 C.A.No.5720-21\97 @ SLP(c) No. 12960-61\96 C.A.No.5722\97 @ SLP (C) No. 23351\94 C.A.No.5723-5727\97 @ SLP (C) No. 48-52\95 C.A.No.5728-30\97 @ SLP (C) No. 53-55\95 C.A.No.5731-34\97 @ SLP (C) No. 6399-6402\95                       J U D G M E N T M. JAGANNADHA RAO, J.      Leave granted in the SLPs.      These appeals  are all connected and can be disposed of together.  All the appeals except two (Civil Appeals arising out of  SLP No.  8676 of 1996 and 12960-61 of 1996 are filed against the  order of  the  Orissa  Administrative  Tribunal dated 3.10.1994  in O.A.  343 of  1994 and  batch.   The two SLPs,  referred  to  above  arise  out  of  an  order  dated 16.2.1995 in  O.A.  315  of  1995  and  335  of  1995.  C.A. 7155\1993 arises  out  of  judgment  in  OA  631\1991  dated 10.10.1992.      We shall set out the facts in the civil Appeals arising out of  SLPs No.  22941-63/94 These  SLPs are  filed against orders of  the  Full  Bench  of  the  Orissa  Administrative Tribunal in OA No. 343\1994.  By the said, the Full Bench of the Tribunal agreed with the views expressed by the Division Bench of  the Tribunal in the referring Order dated 2.5.1994

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and observed that the views expressed by an earlier Division Bench in  OA No.  647\1992 that  the Government letter dated 13.3.1992 had  materially  changed  the  earlier  Government decision dated  132.1991 "without  any sense  or basis"  and that the  later letter  was in  conflict with the former and should not  be given  effect, was not correct, in as much as no conflicting  features were  brought to  the notice of the Full Bench.   These  appeals before  us are  by the  trained matric Assistant  teachers  in  primary  schools  in  Orissa (District wise)  and the  contesting parties  are  the  non- matric Assistant  teachers.   The contest  is in  regard  to inter  se-seniority  between  them  and  promotion  as  head Pandits in each District.      Initially, matric  and  non-matric  candidates  with  2 years elementary  training were being appointed as Assistant Teachers in  Non-Government primary  schools (Lower  primary and Upper  primary  schools).    The  senior-most  Assistant teachers were  being posted  as Head Pandits or Head Masters in the  said schools on payment of extra-allowance of Rs.2/- in addition  to the  regular salary of an Assistant teacher. By 1969, in several of these schools, the non-matric trained Assistant teachers were working as Head Pandits/Head Masters because of  their seniority.   This  position continued even after the recommendation of the 4th pay Committee in 1974.      Government of  Orissa issued Resolution dated 23.7.1983 laying down  certain principles for promotion to the post of Head Pandits.   Each District was to be a separate unit both in the  cadre of  Assistant Teacher  and  of  Head  pandits. Clause No. (iv) of the principles said:      "(iv)   -   Promotion   should   be      strictly on  the basis of training,      seniority and suitability.’      In  other   words,  for   purpose  of   promotion,   no distinction was  to be  made on the ground that an Assistant Teacher was  a matric  or non-matric.   There  is no quarrel about this  principle by  the non-matric Assistant teachers. The grievance  of these  teachers was  mainly in  regard  to Clauses (ix) and (x).  Clause (ix) said :      The trained  Matric Asstt. teachers      promoted to the post of Head Pandit      should be  posted to schools having      three or more teachers and the non-      matric trained teachers promoted as      Head Pandits  be posted  to schools      having two teachers. Clause (x) said :      The  trained  matric  teachers  and      trained     non-matric     teachers      promoted  to   the  posts  of  Head      Pandits  should   be  allowed   the      scales of  Rs.  320-560/-  and  Rs.      300-470/- respectively.      These clauses  (ix) and (x) created distinction between matric and  non-matric in  the matter  of promotion  as Head pandits and  in the matter of scales of pay.  Therefore, the non-matrics approached  the High  Court of  orissa in O.J.C. No.  2102  of  198.    However,  to  redress  the  grievance regarding clause  (ix) the  Government came  forward, during the pendency  of the  case,  with  Resolution  on  25.6.1988 omitting clause  (ix) from  the  earlier  Resolution.    The result was  that the  distinction in  regard to promotion as Head pandits  between matrics  and non-matrics  came  to  be removed.   In the High Court, the grievance regarding clause (x) relating  to pay  scale alone  remained.  The High Court disposed of  the case  relying on  the above-said Resolution

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dated 25.6.1988,  which had  removed the  disparity  in  the matter of  promotion, and  other  factors  and  struck  down clause (x)  relating to  the disparity  in  pay  scales,  by Judgment dated  12.5.1989.   Thus both  clause (ix)  and (x) came to be removed.      But between  1983 and  25.6.1988, in as much as at that time, due  to clause  (ix) there  was a  distinction in  the matter of  promotion as head Pandits between matric and non- matrict  teachers,   the  Department  was  having,  in  each District, separate  lists of  matric teachers.   This aspect was emphasised  in the  proceedings of  the  Directorate  of Elementary and  Adult Education  dated 30.3.1987.    It  was stated  that  the  Government  had  by  a  resolution  dated 13.1.1987 upgraded  7169 posts of trained Non-Matric Primary Teachers to  those of  Head pandits in the scale of Rs. 480- 1240 (in  2 teacher  schools) and  14,246 posts  of  trained Matric Primary  School teachers  to that  of Head Pandits in the scale of 840-1345 ( in 3 or more teacher schools) during 1986-87.   It  was  further  stated  that  in  view  of  the principles  laid   down  in   Government  resolution   dated 28.7.1983 the  matric trained  teachers be  posted  as  head Pandits in  the scale  of 840-1345 in primary schools with 3 or more  teachers while non-matric trained teaches are to be posted as head pandits in the scale 840-1240 in schools with 2 teachers.   This resolution dated schools with 2 teachers. This resolution dated 30.3.1987 resulted in preparation of 2 separate lists  of matric  and non  - matric teachers before the passing  of resolution dated 25.6.1988 which removed the distinction in matters of promotion.      Though the  distinction between the matric teachers and non-matric teachers  stood removed, in the matter of posting as head  Pandits from  25.6.1988 (and  consequently  in  the matter of  scales on 12.5.1989 by the Court Judgment), there was  delay   in  the  implementation  of  this  decision  of 25.6.1988.  It was only on 21.12.1990 by another resolution, that Government  modified Clause (x) of the Resolution dated 23.7.1983   stating that  the non-matrics had approached the High Court  against Clause  (ix) and  (x)  that,  after  the Judgment, it  had been decided that the pre-revised scale of Rs.320-550 admissible  to trained  Matric  Head  Pandits  be applied to  Non-Matric Trained  Head Pandits and para (x) of 23.7.1983  Resolution  be  "deemed  to  have  been  modified accordingly."   It was  also clarified  that in  the revised scale, both  matric and non-matric Head Pandits were to draw the scale 840-1345.      Then  came   the  Resolution  dated  13.2.1991  of  the Government mentioning  the principles  for selection of Head pandits in  primary  schools.    As  in  para  (iv)  of  the Resolution  dated   25.7.1983,  it   was  stated   that  the appointment as  head pandits  was to be made on the basis of training, seniority  and suitability.  qualification was not one of  the factors.  Clause (a) said that the unit  will be the District  and selected will be by the District Selection Committee and  lists will  be prepared  for each recruitment year.   Inter-se seniority  will depend  on  their  relative position in the selection list.  Clause (b) and (c) referred to the  teachers who  were not selected through the District Selection Committee  and as  to their  appointment  as  head pandits.      On 5.11.1991,  the  Government,  however,  stated  that promotions accorded  prior to issue of Government Resolution 5827/E dated  13.2.1991  should  remain  operative  and  the status-quo should be maintained, provided that the gradation list was  prepared and  promotions given to the post of Head Pandit in  conformity with the earlier government Resolution

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No.3436/E dated 23.7.1983.      On 13.3.1992,  the Government  wrote to the Director of Elementary  Education,  stating  that  the  scales  of  Head pandits matrics  and  Non-matrics  have  been  equalised  on 21.12.1990 (w.e.f.1.1.1985)  and that therefore it was being "clarified" that  (i) there  shall be  no two  categories of posts of  head Pandits  as created  in G.O. No. 1488/E dated 13.1.1987; (ii)  the total  posts of 21.410 (7169+14,241) of Head Pandits  would be manned by both categories of teachers without  any  distinction  and  they  will  be  in  540-1345 (revised  as   1200-2040  w.e.f.   1.5.1989);  (iii)   fresh District-wise Gradation  List of  Primary School Teachers as per  the   new  principles   enunciated  in  the  Government Resolution 5827/E dated 13.2.1991 be prepared by taking into consideration  "training,  seniority  and  suitability"  and giving greater weightage to seniority with training, subject to suitability,  in the  matter of  promotion to the post of Head pandits.      This Resolution  dated 13.3.1992  led to  the filing of O.A. 674 of 1992 and batch, by trained matriculate teachers. It was  contended by  them that  they should  be kept  in  a separate gradation  list and that the directions given for a single unit  in each  District for the matric and non-matric teachers for promotion of Head Pandits was bad and that this amounted to  treating unequals as equals, and the directions to prepare a combined list of matric and non-matric teachers given in  the Resolution  dated 13.3.1992  be quashed.   The Tribunal  felt   that  there   was  difference  between  the 13.2.1991 and  13.3.1992 Resolution  and after  referring to the  history   of  the  litigation  as  well  as  Government Resolutions, finally  observed that  the  latter  Resolution dated  13.3.1992   changed  the   earlier  Resolution  dated 13.2.1991 "without  any  sense  or  basis".    The  Tribunal directed implementation  of the  Resolution dated  13.2.1991 and observed the letter dated 13.3.1992 was in conflict with the government Resolution dated 13.2.1991.      This decision  by the Division Bench of the Tribunal in OA  No.   674  of   1992  dated  17.6.1993  created  further litigation when  the present  batch of  cases OA  No. 393 of 1994 etc.  were filed  by the Non-matric Teachers before the Tribunal.   Another Division Bench of the Tribunal by way of a reasoned  order dated  2.5.1994 differed  from the earlier decision dated  17.6.1993 of  the Tribunal  and created  the matter to a Full Bench That resulted in the present Judgment dated 3.10.1994  by the  Full Bench  agreeing with the views dated 2.5.1994  expressed by  the second Division Bench.  It is this  Order of  the Full Bench that is questioned in this Appeal by matriculate teachers.      Learned counsel  for the  Appellant -  matric  teachers contended  that   as  a  result  of  the  judgment  and  the Resolution of  the Government  dated 13.3.1992  implementing the Resolution dated 25.6.1988, several matric Pandits faced reversion even  though at  one stage Government had passed a status quo  order on  5.11.1991.    He  contended  that  the earlier decision of the Tribunal in OA No. 674 of 1992 dated 17.6.1993 had  become final  and  that  non-matric  teachers cannot be  posted as  head Pandits  in the  schools in which earlier only matric teachers were entitled to be posted.      On the  other hand,  learned counsel  for the  state of Orissa and  counsel for non-matric teachers pointed out that the Tribunal  in its  earlier judgment in OA No. 674 of 1992 dated 17.6.1993  ought not  to have said anything which went against the  High Court  judgment in  OJC No.  2102 of  1983 dated 12.5.1989  which had  become final.   The judgment had accepted the  resolution of  the Government  dated 25.6.1988

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and even  proceeded to  quash the  distinction  between  the scales of  pay.   Further there  was no conflict between the resolutions dated  13.2.1991 and 13.3.1992 and the Tribunal, in its  earlier judgment in OA 674 of 1992 stated that there was  some   conflict  and  unnecessarily  characterised  the resolution dated  13.3.1992 as  being "without  any sense or basis".    No  reasons  have  been  assigned  for  the  said conclusion.      The point  for consideration  is whether the Full Bench of the  Tribunal was not right in overruling the judgment of the Division Bench on OA 674 of 1992 dated 17.6.1993?      In our  view, the  Full Bench of the Tribunal was right in not  accepting the decision of the earlier Division Bench in OA  No. 674 of 1992 dated 17.6.1993.  From the chronology set out  by us, it is clear that initially before 23.7.1983, there was  no distinction  between matric teachers and non - matric teachers  in the  matter of promotion.  A distinction was intervened by Resolution dated 23.7.1983 which in clause (ix) restricted  the promotion  to schools  with 3  or  more teachers, only  to matric teachers.  Clause (x) introduced a disparity in  scales of  pay.   Clause (ix)  was omitted  by Resolution dated  25.6.1988.   Clause (x) relating to scales of pay was struck down by the High Court in OJC 2102 of 1983 by judgment  dated 12.5.1989.  This was done by holding that once the  Resolution dated 25.6.1988 removed the distinction in matters  of promotion,  the principle  of equal  pay  for equal work  applied.   If the  decision dated  25.6.1988 was implemented immediately,  there would  have  been  not  much problem.   Such implementation was postponed till 21.12.1990 when necessary  clarifications were given and principles for promotions stated  in para  (iv)  of  the  Resolution  dated 23.7.1983  (that   promotion  will  be  based  on  training, seniority and  suitability i.e.  not on  qualification)  was reiterated by  Resolution dated 13.2.1991 and implementation directed on  13.3.1992.   It is  clear that para (iv) of the Resolution dated  23.7.1988  stood  and  together  with  the Resolution dated  25.6.1988, which  was accepted by the High Court on  12.5.1989 and  which judgment  had  become  final, there is  no scope  for re-opening  the issue again when the matric teachers  approached the  Tribunal in OA 674 of 1992. As pointed out in the referring order by the latter Division Bench of the Tribunal, the principle for promotion stated in the  resolution   dated  13.3.1992   that  only   ’training, seniority and  suitability’ were to be is nothing new and it is the  same thing  as clause  (iv) of  the resolution dated 23.7.1983.   In these  circumstances, thee  was no scope for maintaining two  gradation lists  for matric  and non-matric teachers.   In our  view, the distinction between matric and non-matric teachers in the matter of promotion stood removed from 25.6.1988  and  that  date  shall  be  treated  as  the effective  date  for  working  out  the  promotions  of  the teachers in  each District.  Accordingly, combined seniority lists of matric and non-matric teachers as on 25.6.1988 have to  be   prepared  District-wise   and  finalised  and  then promotion to the posts of head Pandits - whether the schools are of  3 or more teacher or less than three teachers - will have to  be worked  out  after  applying  the  principle  of ’training seniority and suitability’.  We are of the opinion that the  Full Bench  had rightly  held  that  there  is  no conflict  between   the  resolutions   dated  13.2.1991  and 13.3.1992 and  that  the  earlier  Division  Bench  was  not correct in  coming to  the conclusion  that  the  Resolution dated 13.3.1992  was in  conflict with  the Resolution dated 13.2.1991.      It appears that on account of the different resolutions

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passed or  decisions give  by the  High Court/Tribunal there were reversions  of non-matric  Pandits at  one time  and of matric Pandits  at some  other time  and there  were various interim order  passed at  different  stages  either  by  the Government or  the Tribunal.   In  view of  the decision now given by  us, the  rights of the parties will be accordingly worked out  by the  Government as expeditiously as possible. We are  also of  the view that as far as possible the matric teachers promoted as head Pandits could be continued without reversion in  view of  the fact  that in  the  last  several years, more  vacancies must have arisen in the posts of Head Pandits.   The appeals  arising out of SLP 22941 of 1994 etc filed by the matriculate teachers are accordingly dismissed. Appeals filed by matric teachers arising out of SLPs 8676 of 1996 and  12960-61 of  1996 are  also covered  by the  above judgment and are disposed of accordingly.      In CA  7155 of 1993, the appellant is a non-matriculate teacher.  He was serving as head Pandit from 5.4.1962 and he has filed  this appeal  against the judgment of the Tribunal in OA  632 of  1991 dated 19.10.1992.  The OA was dismissed. it was  held that as per the Resolution dated 23.7.1983, the BDO was  right in preparing two separate gradation lists for matric and  non-matric teachers  by  his  proceedings  dated 10.4.1991.   The grievance  of the  appellant in  the appeal will also  stand redressed  by our  decision rendered above. The Civil  Appeal is,  therefore, allowed and disposed of in the light  of the  main judgment  rendered by  us as  stated above.