JUDGMENT

S.N PRASAD, J. - W.P.(C) No.27744 of 2013 has been filed by the State against the common order dated 04. 12. 2012 passed by the Orissa Administrative Tribunal, Principal Bench, Bhubaneswar in O.A No.1449 of 2011, O.A. No.1501 of 2011 and O.A. No.575 of 2012 wherein the Tribunal while allowing the Original Applications by quashing the order dated 30.06.2010 (Annexure-4) has directed the State Government to include the employees of Urban Local Bodies High Schools in the common gradation list by effecting appropriate amendments to the said Rule by framing a separate set of Rules, keeping in view the observations made in the Original Applications.

2. The brief of the case of the applicants before the Tribunal was that they have started their service career as teachers in different Municipal High Schools under Urban Local Bodies under the administrative control and supervision of Urban Development Department. Their eligibility, staffing pattern and conditions of services were exactly similar to those applicable to teachers of Government High Schools under the administrative control of School and mass Education Department. The Urban Local Bodies Schools were public managed Schools as per Orissa Education Code like other Government Schools. The Inspector of School had been declared as the heads of department of such Municipal Schools. But the Municipal Schools were treated as a separate class. The Housing and Urban Development Department has issued a resolution on 28.02.2004 by which the services of the teachers working under the Municipal School has been transferred to School and Mass Education Department and declared the employees of such Schools to be Government servants for all purposes. This resolution left it to the School and Mass Education Department to decide the modality of fixing inter-se seniority of Urban Local Bodies / Municipal Schools so transferred. But after transfer of the Schools, the teachers of Municipal Schools were not promoted to the rank of the Headmaster of Municipal Schools against the vacancies existing in these Schools, though there was no difficulty for the same. At the time of transfer there were already two types of Government Schools i.e. old Government Schools and new (taken over) Government Schools. Due to merger of these two types of schools, the Government issued a notification on 20.05.2006 amending the Orissa Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 (hereinafter referred to as ‘the Rules, 1993), deciding the modalities of fixing the inter-se seniority between the teachers of new Government Schools and old Government Schools. But however, no steps were taken to fix the inter-se seniority of the employees of the Municipal Schools rather instead of promoting Municipal Schools teachers to the rank of Headmaster in Municipal Schools, the teachers were made in-charge Headmaster of such Schools. The Subordinate Education Service Rules do not include the Municipal teachers, the State Government cannot apply the said Rules to Municipal teachers, when Rule 33 of the Rules, 1993 specifically excludes its applicability to Municipal teachers. But the Government through their School and Mass Education Department had issued a letter on 30.06.2010 directing fixation of inter-se seniority of Urban Local Bodies / Municipal employees as per the provisions of Subordinate Education Service Rules. The executive instructions dated 30.06.2010 cannot override the statutory provisions. The competent authority has issued a gradation list fixing the inter-se seniority by taking away 50% service rendered by them under Urban Local Bodies / Municipal Schools for the purpose of fixing inter-se seniority. Due objections were made by them by filing series of representations to the Government. But without disposing of the said representations, the provisional gradation list has been issued without counting the service experience of Urban Local Bodies / Municipal teachers in Ur