The main legal point established in the judgment is that the rejection of the petitioners' option to be reverted to the Secondary Cadre was legally untenable and amounted to discrimination, contravening Article 14 of the Constitution of India.

JUDGMENT :

Sashikanta Mishra, J.

The petitioners are aggrieved by the rejection of their request for being reverted to the secondary grade as per option exercised by them.

2. The petitioners were appointed as Assistant Teachers under the LSES cadre against vacancies of Government High Schools. The names of the petitioners were sponsored by the employment exchanges and as such, 41 candidates including the present petitioners were selected for appointment. Out of the said 41 candidates some were posted in Govt. High Schools and some in Government M.E. Schools. The present petitioners were posted in Government M.E. schools on 01.11.1997. In the meantime, on 12.08.1997, the Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 (for short, Rules, 1997) came into force and as per the said Rules, the Inspector of Schools of Sambalpur Circle by his letter dated 11.04.1998 asked all the District Inspectors of Schools of Sambalpur Circle to invite option from the teachers, who were selected in the Secondary Cadre but posted in Government M.E schools as to whether they want to continue in the Elementary Cadre or to come over to Secondary Cadre. Pursuant to such letter, the petitioners gave their option to be reverted to the Secondary Cadre. The District Inspector of Schools, Bargarh prepared a list of such candidates including that of the petitioners and forwarded the same to the Inspector of Schools, Sambalpur Circle for necessary action. While the matter relating to the decision on the option so exercised was pending some of the Assistant Teachers out of the 41 candidates, namely, Minaketan Pradhan, Mahima Sahoo and Anil Kumar Mishra etc. were reverted to the secondary cadre, whereas no decision was taken in respect of the petitioners. The petitioners thereafter approached the erstwhile Odisha Administrative Tribunal in O.A. No. 352 of 2008 and O.A No. 2730(C) of 2009. The said O.As. were disposed of on 22.12.2010 by directing the concerned authority to take a final decision on the option so exercised by the applicants within a period of 6 weeks from the date of communication of the order keeping in view that similar benefit had been extended to similarly placed persons. Since the order was not complied with the applicants filed contempt petitions before the Tribunal. During pendency of the said contempt petitions, the Inspector of Schools, Sambalpur Circle by letter dated 26.04.2011 sought for clarification from the Director of Secondary Education, Odisha with regard to the orders passed by the Tribunal. The Director of Secondary Education, Odisha by his order dated 23.07.2016 rejected the request of the petitioners on the ground that there is no provision in the Rules, 1997 to ask for option from Assistant Teachers working in Elementary Schools or LSES Teachers of Secondary Schools, who do not belong to Odisha Subordinate Education Service. Being aggrieved by such rejection, the petitioners approached the erstwhile Odisha Administrative Tribunal in O.A. No. 3476(C) of 2016 with prayer to quash order dated 23.07.2016 passed by the District Education Officer, Sambalpur and to direct the opposite parties to revert the petitioners to their secondary cadre with seniority and consequential service benefits. The said O.A. has since been transferred to this Court and registered as the present Writ Petition.

3. A counter has been filed by opposite party no. 4 to the Writ Petition. In the counter, the impugned order has been sought to be justified by stating that there is no provision in Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 to obtain option from Assistant Teachers working in Elementary Schools as the Assistant Teachers or LSES Teachers of Secondary Schools do not belong to Odisha Subordinate Education Service.

4. The petitioners have filed a rejoinder to the counter filed by opposite party no. 4. It is stated th