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2021 (6) TMI 1172 - HC - Indian LawsInclusion of name in the draft gradation list - determination of seniority - HELD THAT - Though the petitioner was deputed to Samal Barrage UP School he had never been permanently absorbed in the said school and his lien had been continuing with Angul District Education Cadre. But 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. In TRIVENI SHANKAR SAXENA VERSUS STATE OF U.P. AND OTHERS 1991 (12) TMI 285 - SUPREME COURT the apex Court held that the word lien originally means binding from the latin ligament and its lexical meaning was right to retain . 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. The opposite parties no. 2 and 3 are directed to fix seniority of the petitioner as per Explanation-I to Rule-15 of Rules 1997 in the draft gradation list dated 01.09.2012 published by opposite party no. 3 taking into account his date of appointment as 22.09.1981 and extend all consequential benefits as due and admissible to him in accordance with law as expeditiously as possible preferably within a period of three months from the date of communication of this judgment. The writ petition is allowed.
Issues Involved:
1. Inclusion of the petitioner's name in the draft gradation list. 2. Determination of seniority based on the date of appointment. 3. Validity of the petitioner's deputation and its impact on seniority. 4. Legal principles regarding "lien" and its application in the case. 5. Compliance with statutory rules and procedures. Detailed Analysis: Inclusion of the Petitioner's Name in the Draft Gradation List The petitioner sought the inclusion of his name in the draft gradation list dated 01.09.2012, prepared by the District Inspector of Schools, Angul. The petitioner objected to his exclusion, arguing that his seniority should be based on his initial appointment date of 22.09.1981. Determination of Seniority Based on the Date of Appointment The court noted that the petitioner was appointed as an Assistant Teacher on 22.09.1981 and joined on 26.09.1981. According to Rule-15 of the Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997, the seniority of Assistant Teachers should be determined with reference to the date of their appointment. The court cited a previous judgment (W.P.(C) No. 14979 of 2010) which established that seniority should be fixed based on the initial date of appointment. Validity of the Petitioner's Deputation and Its Impact on Seniority The petitioner was deputed to Samal Barrage U.P. School in 1989 but continued to hold a lien in his original post. The court found that the petitioner's lien was not terminated and that he should still be considered part of his original cadre. The court dismissed the argument that the petitioner needed to apply for cancellation of his deputation, stating that his lien continued and his name should have been included in the gradation list. Legal Principles Regarding "Lien" and Its Application in the Case The court referred to various Supreme Court judgments to explain the concept of "lien," which is the right of a government servant to hold a post substantively. The court concluded that the petitioner had a substantive right to his original post, and his seniority should be determined from the date of his initial appointment. Compliance with Statutory Rules and Procedures The court emphasized the legal maxim "Expressio Unius est exclusion alterius," meaning that if a statute prescribes a particular manner for doing something, it must be done in that manner. The court found that the authorities failed to follow the prescribed rules, making their actions arbitrary and unreasonable. Conclusion: The court directed the opposite parties to include the petitioner's name in the draft gradation list dated 01.09.2012, taking into account his initial appointment date of 22.09.1981, and to extend all consequential benefits to him within three months. The writ petition was allowed with no order as to costs.
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