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Orissa HC Applies Principle of Lien, Directs Inclusion of Assistant Teacher’s Name in Draft Gradation List

Orissa HC Applies Principle of Lien, Directs Inclusion of Assistant Teacher’s Name in Draft Gradation List

04.08.2021 | Education News | EduLegaL  | www.edulegal.org | mail@edulegal.in

The Orissa High Court in Bamadev Sahoo vs State of Orissa and Others [WPC (OAC) no. 4118 of 2012] directed the Director, Elementary Education, Odisha and District Inspector of Schools, Angul to fix seniority of and include the name of the petitioner in the draft gradation list dated 1st September 2012 as per the Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997.

The Single Judge Bench of Justice B R Sarangi applied the principle of lien whereby a government servant is entitled to substantively hold a permanent post to which he/ she has been appointed and observed:

“…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 Thereby, his ‘lien’ was continuing against substantive post at Chhendipada Upper Primary School and when he had been withdrawn from deputation, his services were placed at the very same School.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 petitioner’s 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.”

The petitioner was appointed and posted at Gopinathpur Lower Primary School by letter dated 22nd September 1981 after which he joined work on 29th September 1981. In 1989, he was deputed to Samal Barrage U.P. School from Chhendipada Primary School. Thereafter, the Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 were made, according to which the seniority of the Assistant Teachers of Government Primary and Upper Primary Schools had to be ascertained for preparing gradation lists. Accordingly, a draft gradation list was published by the Director, Elementary Education, Odisha. However, the petitioner’s name was not included in the said list. Further, promotions were carried out as per the said list.

Aggrieved, the petitioner filed an application seeking a direction to the opposite parties to include his name in the draft gradation list, before the Orissa Administrative Tribunal, Cuttack, upon the abolition of which, the case was transferred to the Orissa High Court.

The petitioner contended that as per Explanation I to Rule 15 of the Rules, 1997, the seniority of an Assistant Teacher has to be determined according to the date of his/ her appointment and since the petitioner was appointed on 22nd September 1981, his seniority should have been fixed considering such appointment on 22nd September 1981 and not 26th September 1981.

The court expressed:

“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.”

In conclusion, the Orissa High Court allowed the writ petition and directed the Director, Elementary Education, Odisha and District Inspector of Schools, Angul to fix the seniority of the petitioner in the draft gradation list dated 1st September 2012 as per the Rules, 1997 and to accordingly provide all the consequential benefits. The court held that the said directions have to be complied with preferably within three months from the date of communication of the order.

[1]https://services.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=LfKgAEL6K8Sqqfv6TysK%2BNxJU8%2BMDaGy2aN2M%2FHgqesZASCBldy0x1rsWxcuYujY&caseno=WPC(OAC)/4118/2012&cCode=1&appFlag=

Ankitha Subramanya | EduLegaL

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