BHIKARI CHARAN JENA vs STATE OF ODISHA
- Court
- Odisha High Court
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Date: 03-Sep-2026 18:50:19
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.3295 of 2026
CNR NO: ODHC010054912026
(Under Article 226 and 227 of the Constitution of India)
Bhikari Charan Jena …. Petitioner
-versus-
…
State of Odisha, represented
through its Commissioner-cum-
Secretary, School and Mass
Education Department and Others
Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. Kunal Kumar Swain, Advocate
with Mr. S.C.D. Dash, Advocate
For Opp. Parties : Mr. S.K. Jee, A.G.A.
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
29 August, 2026
B.P. Routray, J.
1 . Heard Mr. K.K. Swain, learned counsel for the petitioner and Mr.
S.K. Jee, learned Additional Government Advocate for State opposite
parties.
2. 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
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in the present case is that, whether a non-teaching staff working in an
educational institution can be promoted as a teacher?
3. 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
th th
No.2698 dated 9 March 1989 and joined in the post of Peon on 13
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
th
school. The then Inspector of Schools vide his letter dated 15 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,
th
the Director in his office order dated 14 May 2013 considered the
prayer of the petitioner for promotion and rejected the same saying that
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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)
th
No.77 of 2025 challenging said order of the Director dated 14 May
2013 and this court again directed the Director to reconsider the same.
th
Pursuant to said direction of this court present impugned order dated 8
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.
4. 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
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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.
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5. 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
st
petitioner is going to retire on 31 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.
6. 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.
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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.
7. 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:-
“35. The Court must keep in mind the constitutional obligation
of both the appellants/Central Government as also the State
Government. Both the Central Government and State
Government are to act as model employers, which is consistent
with their role in a welfare State.
36. It is an accepted legal position that the right of eligible
employees to be considered for promotion is virtually a part of
their fundamental right guaranteed under Article 16 of the
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Constitution. The guarantee of a fair consideration in matters of
promotion under Article 16 virtually flows from guarantee of
equality under Article 14 of the Constitution.”
8. In State of Tripura and Others v. K.K. Roy, (2004) 9 SCC 65 it
has been held as follows:-
“6.It is not a case where there existed an avenue for promotion.
It is also not a case where the State intended to make
amendments in the promotional policy. The appellant being a
State within the meaning of Article 12 of the Constitution
should have created promotional avenues for the respondent
having regard to its constitutional obligations adumbrated
in Articles 14 and 16 of the Constitution of India. Despite its
constitutional obligations, the State cannot take a stand that as
the respondent herein accepted the terms and conditions of the
offer of appointment knowing fully well that there was no
avenue of appointment, he cannot resile therefrom. It is not a
case where the principles of estoppel or waiver should be
applied having regard to the constitutional functions of the State.
It is not disputed that the other States in India / Union of India
having regard to the recommendations made in this behalf by
the Pay Commission introduced the scheme of Assured Career
Promotion in terms whereof the incumbent of a post if not
promoted within a period of 12 years is granted one higher scale
of pay and another upon completion of 24 years if in the
meanwhile he had not been promoted despite existence of
promotional avenues. When questioned, the learned counsel
appearing on behalf of the appellant, even could not point out
that the State of Tripura has introduced such a scheme. We
wonder as to why such a scheme was not introduced by the
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Appellant like the other States in India, and what impeded it
from doing so. Promotion being a condition of service and
having regard to the requirements thereof as has been pointed
out by this Court in the decisions referred to hereinbefore, it was
expected that the Appellant should have followed the said
principle.
7. We are, thus, of the opinion that the respondent herein is at
least entitled to grant of two higher grades, one upon expiry of
the period of 12 years from the date of his joining of the service
and the other upon expiry of 24 years thereof.
8. The learned counsel appearing for the appellant, is, however,
correct in his submission that the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India could
have issued a writ of or in the nature of Mandamus directing the
appellant herein to grant a scale of pay which would be
equivalent to Grade II or Grade I of the Judicial Service of the
State.”
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.
9. 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
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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
rd
3 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
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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.
10. 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.
11. 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
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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
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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.
12. 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 .. ”
13. 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
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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.
14. 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.
15. In the result, the writ petition is dismissed.
(B.P. Routray)
Judge
M.K. Panda,P.A.
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