TaxTMI 
TaxTMI 
2021 (6) TMI 1172
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....85 and became Trained Graduate from the date of acquisition of such qualification. By office order dated 21.01.1989 issued by the District Inspector of Schools, Dhenkanal, the petitioner was placed on deputation to Samal Barrage U.P. School under Angul Education District. Pursuant to such order, the petitioner was relived from the control of District Inspector of Schools, Dhenkanal and joined in Samal Barrage U.P. School on 01.02.1989 under the District Inspector of Schools, Angul, Orissa. 2.1. In order to regulate the method of recruitment and conditions of service of Teachers of Elementary Education, a set of Rule was framed in exercise of power conferred by the proviso to Article 309 of the Constitution of India, which came into force with effect from 18.12.1997 called as "The Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 (hereinafter referred to as "Rules, 1997"). As per the said Rules, 1997, the post of Asst. Teachers of Govt. Primary and Upper Primary Schools belonged to Level-V. As the petitioner was working as Asst. Teacher in a Govt. Primary School, he was to be encadred in Level-V of Elementary Educat....
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....r did not press the second limb of the prayer with regard to quashing of draft gradation list prepared by opposite party no. 3-District Inspector of Schools, Angul, and contended that the authorities, by not considering the objection raised by the petitioner in proper perspective, have acted arbitrarily and unreasonably, and that on the basis of the draft gradation list, if promotions are effected from Level-V to Level-IV to the prejudice of the petitioner, the same cannot sustain in the eye of law. It is further contended that if the statutory rules prescribed a thing to be done in a particular manner, the same has to be adhered to in the same manner. When Explanation-I to Rule-15 of the Rules, 1997, unambiguously prescribes that the seniority of the petitioner shall be determined with reference to the date of his appointment, the petitioner, having been appointed as Asst. Teacher on 22.09.1981, his seniority should have been fixed accordingly. This position has been settled by this Court in W.P.(C) No. 14979 of 2010 and batch disposed of on 23.12.20211(sic) and while interpreting the provisions of Exaplanation-1 to Rule-15 of Rules, 1997, this Court held that on the basis of init....
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....a Elementary Education Service, Level-I (Senior) (2) (i) The Odisha Elementary Education Service, Level-V shall consist of the Post of Assistant Teachers of Government Primary Schools and Assistant Teachers of Government Upper Primary Schools. (ii) The Odisha Elementary Education Service, Level-V shall consist of the posts of Headmasters/Headmistress of Government Primary Schools. xx xx xx 15. Seniority and gradation list - (1)(a) The District Education Officer of the concerned Education Districts shall maintain gradating list separately for the posts belonging to Level-V, Level-IV and Level-III of the Service strictly on the basis of Seniority. (b) The gradation list of incumbents of the above mentioned levels shall be updated by 15th July of every year. (c) The District Education Officer shall invite objections by the 15th June before finalization of the gradation list and thereafter final gradation list shall be published by the 15th July of every year." xx xx xx Explanation-I- All persons now working as regular Assistant Teachers of Government Primary and Upper Primary Schools shall be treated as Members of....
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....l to act as such in the old scale of pay without deputation allowance. Therefore, lien of the petitioner was continuing in his original post subject to deputation to new place of posting at Samal Barrage UP School. When the draft gradation list was prepared by the Director Elementary Education, Odisha and the name of the petitioner did not find place in the same, he filed objection vide Annexure-4 series enclosing the relevant documents. The same was attended to and the Deputy Director of Elementary Education, Odisha called upon the District Inspector of Schools, Angul to furnish a detailed report along with his specific views and all supporting documents to the Directorate within fortnight through a special messenger for taking further course of action at their end, but the same was not acted upon. Again, the Executive Engineer, Head Works Division, Samal Barrage provided the original service book of the petitioner to the District Inspector of Schools, Angul. Thereafter, on 30.11.2012, the Deputy Director, Elementary Education, Odisha again issued a letter to the District Inspector of Schools, Angul to furnish a report as to whether the name of the petitioner has been included in ....
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....h teachers are being treated as Govt. Servants w.e.f the date of such taken over for all purposes. But the present applicant continued in the Samal Barrage UP School which is under the administrative Control of Executive Engineer, Head Works Division, Samal Barrage and he did not opt to come back to his parent school before services of such teachers working in non Govt. Primary Schools were taken over the Govt. and even after such taken over the Govt,. the present petitioner did not take any steps for coming back to his parent post and after a hiatus of more than 23 years he approached portals of this Hon'ble Tribunal for inclusion of his name in the gradation list prepared by the D.I. of Schools, Angul of Level-V teachers which is gross barred by limitation and the applicant without coming back to the Department again prayed for inclusion in the gradation list which is only consequential to his return to the department." So far as contention raised, that the petitioner, whose services were placed on deputation, should have applied for cancellation of the same, no where it has been provided for. When the authority required his services to be placed on deputation to Samal Bar....
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....t fact remains, after filing the original application, the Block Education Officer cancelled the deputation of the petitioner on 09.09.2014, pursuant to which he was relieved w.e.f. 15.10.2015 from Samal Barrage UP School by the Executive Engineer, Samal Barrage, by virtue of the office order dated 12.09.2015. Accordingly, the petitioner joined in Chhendipada Primary School under Block Education Officer, Angul on 16.09.2014. Thereby, it is made clear that his lien with parent education district was continuing, pursuant to which he had been allowed to join in Chhendipada Primary School, wherefrom he was placed on deputation to Samal Barrage UP School. Therefore, the petitioner's name should have been included in the draft gradation list prepared by opposite party no. 3 with all consequential benefits. 10. In Triveni Shankar Saxena v State of U.P., 1992 Supp (1) SCC 524: AIR 1992 SC 496, the apex Court held that the word "lien" originally means "binding" from the latin "ligament" and its lexical meaning was "right to retain". 11. While considering Rule-9(13) of the Fundamental Rules, it provides as follows: "Lien means the title of a Government servant to hold subs....
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....les have been followed subsequently in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, Dhananjay Reddy v. State of Karnataka, AIR 2001 SC 1512, Chandra Kishore Jha v. Mahabir Prasad, AIR 1999 SC 3558, Gujrat Urja Vikas Nigam Ltd. v. Essar Power Ltd., AIR 2008 SC 1921, Ram Deen Maurya v. State of U.P., (2009) 6 SCC 735. 17. In Subash Chandra Nayak v. Union of India, 2016 (I) OLR 922, similar question had come up for consideration before this Court and this Court in paragraph-8 observed as follows: ".............the statute prescribed a thing to be done in a particular manner, (the same has to adhered to in the same manner or not at all. The origin of the Rule is traceable to the decision in Taylor v. Tailor, (1875) LR I Ch D 426, which was subsequently followed by Lord Roche in Nazir Ahmad v. King Emperor, AIR 1936 PC 253(2). But the said principle has been well recognized and holds the field till today in Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422, and Zuari Cement Limited v. Regional Director, Employees' State insurance Corporation, Hyderabad and others, (2015) 7 SCC 690 and the said principles has been referred to by this Court in Manguli B....