Bhikari Charan Jena vs State Of Odisha & Ors.

B.P. Routray, J.

Heard Mr. K.K. Swain, learned counsel for the petitioner and Mr. S.K. Jee, learned Additional Government Advocate for State opposite parties.

The Petitioner, who is serving as a peon in Government School, has claimed for his promotion as a teacher upon acquisition of requisite qualification for the same. Thus the seminal issue arose for consideration in the present case is that, whether a non-teaching staff working in an educational institution can be promoted as a teacher?

Before delving into the merits of the issue, it is necessary to state the facts of present case.

The petitioner was initially appointed as a Peon vide office order No.2698 dated 9^th March 1989 and joined in the post of Peon on 13^th March 1989 at Government High School, Pattamundai. The petitioner while continuing in his post as Peon acquired Certified Teachers qualification in the year 1997 by privately appearing the CT examination. After acquiring training qualification, he represented the authority for consideration of his case for promotion as a teaching staff in Government school. The then Inspector of Schools vide his letter dated 15^th November 2001 (Annexure-3) furnished the information of acquisition of training qualification by some non-teaching staff working in different schools in Kendrapara Circle to the Director, including the name of the petitioner. Thereafter, the petitioner approached Odisha Administrative Tribunal (OAT) by filing O.A. No.1094(C) of 2006 praying for his promotion to the post of Assistant Teacher. Upon the direction issued by learned OAT, the Director in his office order dated 14^th May 2013 considered the prayer of the petitioner for promotion and rejected the same saying that there is no such provision in the prevalent rules for promotion of a non-teaching staff to a teaching post. Then the petitioner filed another case, i.e. O.A. No.4163(C) of 2013, before learned Tribunal, which was ultimately transferred to this court upon abolition of the Tribunal and renumbered before this court as WPC(OAC) No.4163 of 2013. The same was disposed of on the statement made by the then learned counsel for the petitioner for „No Instructions‟. The petitioner then filed WP(C) No.77 of 2025 challenging said order of the Director dated 14^th May 2013 and this court again directed the Director to reconsider the same. Pursuant to said direction of this court present impugned order dated 8^th December 2025 (Annexure-9) has been issued where the Director has rejected the claim of the petitioner for his promotion to a teaching post on two grounds Viz. the petitioner did not obtain prior permission from the competent authority to appear the CT examination, and secondly, no such provision is there to give promotion to a non-teaching employee to a teaching post. This is the subject matter of challenge before this court.

It is submitted by Mr. Swain, learned counsel for the petitioner that a person cannot be debarred from getting promotion on the ground that he acquired the higher qualification without permission of the competent authority. Since the acquisition of higher qualification, i.e. CT training qualification, by the petitioner is undisputed, his promotion cannot be denied on the ground that he did not get prior permission to acquire said training qualification.

It is further submitted by Mr. Swain that undisputedly no such provision is there in the existing Odisha Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 („1993 Rules‟ in short) governing the service condition of teachers in government High Schools and government Upper Primary Schools. But for non-availability of the provisions in the concerned Act or Rules, the promotional avenues of a government employee cannot be deprived or withheld as the same is a part of fundamental right guaranteed under Article 16 of the Constitution of India, read with Article 14. Mr. Swain in this regard relies on the decision of Hon‟ble Apex Court in the case of Jagdish Prasad v. State of Rajasthan and Others, 2011 (7) SCC 789, to contend that the government has to act as a model employer to give all eligible employees adequate avenues for promotion as a rule of fairness in government action. He also places two orders of promotion given in respect of Class-IV employees to the teaching posts at Annexure-6 & 7. It is thus prayed on behalf of the petitioner to give him promotion to the teaching post keeping in view his acquisition of training qualification.

The government has not filed its counter. It is submitted by Mr. Jee, learned AGA that present proceeding being a certiorari one without dispute to factual aspects, filing of counter may not be essential. Further, learned counsel for the petitioner is pressing for urgent hearing as the petitioner is going to retire on 31^st August 2026. Mr. Jee, while confirming the stand taken in the impugned order at Annexure-9, submits that promotion is always considered as a condition of service and in absence of any provision thereof it cannot be claimed as a matter of right. When the petitioner was appointed in a Group-D post as peon and he continued as such he could not have been considered for promotion to a teaching post by acquiring the training qualification in violation of the prescribed rules governing the field. Further, the petitioner despite having his training qualification since 1997, did not apply for promotion to any teaching post deliberately and thus his claim for promotion as such cannot be considered as a matter of right nor does it violate his fundamental right under Article 16 of the Constitution of India as submitted on behalf of the petitioner.

Admittedly, the petitioner has the requisite qualification for being appointed as Assistant Teacher in the Lower Subordinate Education Service (LSES) cadre in terms of the provisions contained in 1993 Rules. Without getting into the dispute whether the petitioner had the prior permission of the competent authority to appear CT examination, the important issue required to be considered is, whether such a non-teaching staff can be promoted to a teaching post, as stated at the beginning of the judgment.

Undisputedly, promotion is a part of condition of service of a government employee. Though a government employee has no right to get promotion but his right to be considered for promotion cannot be denied. As held in Union of India and Another v. Hemraj Singh Chauhan and Others, (2010) 4 SCC 290, the court must keep in mind the constitutional obligations of the government as a model employer to grant consideration to the right of promotion as a part of their fundamental right guaranteed under Article 16 of the Constitution. The relevant observations are as follows:-

In State of Tripura and Others v. K.K. Roy, (2004) 9 SCC 65 it has been held as follows:-

In the aforesaid case of K.K. Roy (ibid), the post of Law Officer-cum-Draftsman was a single cadre post or to say ex-cadre. However, the Hon‟ble Supreme Court did not direct to give him promotion, but directed his entitlement to get benefits of two higher grades on such intervals and further held that such direction to grant the entitlement in favour of the petitioner for benefits of higher scale of pay cannot be directed by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

In the instant case at hand, the post of Peon as per the admissible yardstick to each school and concerned education offices are not an ex-cadre post. As per the Odisha Ministerial Services (Method of Recruitment and Conditions of Service of Junior Assistants, Senior Assistants and Section Officers in the District Offices and offices Subordinate thereto) Rules 2019, there is provision for giving promotion of Group D employees to the post of Junior Assistants in Group C cadre up-to 10% of vacancies in the post provided they have qualification and other eligible criteria. The Government of Odisha in General Administration Department, as per their Notification dated 3^rd August 2010, lays down specific guidelines for regulating promotion of Group D employees to Group-C posts. But here is the case, where the service condition of the teachers in government schools are governed by 1993 Rules, which speaks of consisting of two cadres, as Junior Grade and Senior Grade. The relevant rules regarding promotion are Rule 15 and 18. Rule 15 of 1993 Rules says that, in order to be eligible for promotion to Junior Grade of the service, a candidate must satisfy, inter alia, that he must have served in the LSE Service for at least a continuous period of three years. In respect of appointment to LSE Service, no such statutory rule has been framed yet, as per the submission of Mr. Swain, learned counsel for the petitioner as well as by Mr. Jee, learned AGA. The definition contained in Rule 2(e) of 1993 Rules, speaks that LSE Service shall include such posts as the government may determine from time to time. As per the submission of Mr. Swain, learned counsel for the petitioner, the LSE Service consists of the posts of Trained Matric teachers, Trained Intermediate Teachers, Classical Teachers, Physical Education Teachers and Hindi Teachers. In other words, there is no promotional avenue given for appointment to LSE Service and it should always be by direct recruitment.

Undisputedly, the eligibility for direct recruitment to LSE Service includes acquisition of training qualification in respect of those particular posts. Here the petitioner does not claim for his appointment to LSE Service directly, but his claim is specifically for promotion to the post of Trained Matric post. He has the qualification of Matric CT as eligible to be appointed as a trained matric teacher in the LSE Service. But when the question of promotion comes, nowhere the same is prescribed either by any executive instruction or by way of any statutory provision.

It needs to be stated here that there is huge difference between a teaching post and non-teaching post. A teaching post requires the eligibility in terms of training qualification specifically as a matter of duty to be discharged by the teaching staff. Looking from the angle of nature of duties, to be discharged by teaching and non-teaching staff, they are distinctively separate. Further, as per the provisions of Right of Children to Free and Compulsory Education Act, 2009, in order to be appointed in a teaching post the candidate must have passed the Teachers Eligibility Test. Thus it is not that a non-teaching person having acquired the training qualification would be eligible thereby for promotion to a teaching post. The similar instances as demonstrated by the petitioner under Annexure-6 and 7 are seen distinguishable in the present facts of the case. It is for the reason that Annexure-6 speaks of appointment of an Additional Section Teacher and not promotion. Annexure-7 is an administrative order passed by the District Welfare Officer under Tribal Welfare Department giving promotion to two Group D employees in the post of Sevak. As per the concerned Rule, i.e. Odisha Sub-ordinate Tribal Welfare Education (Recruitment and Conditions of Services) Rules 1993, it prescribes that for appointment to the post of Sevak the candidate must possess +2 pass certificate along with Training Qualification. It is important to note here that Rule 11 of the Odisha Subordinate Tribal Welfare Education (Recruitment and Conditions of Service) Rules 1993, reads differently than Rule 15 of Odisha Subordinate Education (Method of Recruitment and Conditions of service) Rules 1993. Said rule 11 of Tribal Welfare Rules, 1993, says that the cases of in-service eligible employees may be considered for appointment to different posts in junior grade by way of selection. The junior grade includes the post of Sevak. Therefore, authority has been conferred on the committee as per Rule 11 of said Tribal welfare Rules to give appointment to such qualified and eligible employees for appointment to such posts in the junior grade by way of selection. But the case of present petitioner stands on a different footing, whereby no such provision is there in Odisha Subordinate Education (Method of Recruitment and Conditions of service) Rules 1993, conferring power on the authority to give promotion to a non-teaching eligible employee for promotion to a teaching post. As such, the petitioner cannot claim any equity from the order under Annexure-7 to contend that similarly situated persons have been promoted from Group D post to teaching post.

In Krishna Chandra Karna v. State of Orissa and Others, Vol.79 (1995) CLT 338, this Court in a Larger Bench (Three Judges Bench), relating to a similar issue regarding claim for promotion of a junior clerk working in the school to a teaching post (Section Teacher) in the same school, pertaining to the provisions of the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Education Institutions) Rules 1974, have rejected claim of the junior clerk similar to present petioner. It has been observed that, “xx .. xx.. As the vacancy in a teaching post carrying higher scale of pay in the same institution has to be filled by an employee, relevancy of such employee’s experience and performance in respect of the post he holds assumes importance. Such employee’s experience and satisfactory performance in respect of a non-teaching post hold by him is irrelevant to consider his suitability in respect of a teaching post. xx .. xx ..”

As stated earlier, the petitioner, who is serving as a Peon, claims his promotion to a teaching post upon acquisition of his training qualification. It is not a case of direct appointment to the teaching post. The difference between teaching post and non-teaching post in educational institution is huge in respect of their duty and functioning. An employee working in a non-teaching post, by merely acquiring the training qualification alone, thus cannot claim for his promotion to a teaching post.

Thus, in the circumstances, the claim of the petitioner for his promotion to a teaching post does not merit any consideration. It would be incorrect to say that the posts in Group D are stagnant posts without any future prospect. Discharging the functions in a group D post is completely different from the functions to be discharged in a teaching post. Since Assured Career Progress benefits are available to Group D posts, Petitioner‟s argument regarding violation of the fundamental right guaranteed under Article 16 of the Constitution of India, is found unsustainable.

In the result, the writ petition is dismissed.