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1991 DIGILAW 88 (ORI)

BASANTI PRADHAN v. STATE OF ORISSA

1991-03-25

B.L.HANSARIA, B.N.DASH

body1991
JUDGMENT : B.L. Hansaria, C.J. - The petitioner has approached this Court for regularisation of her service under the provisions of the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1989, shortly called "the Act", as amended by the Orissa Act 18 of 1989. The prayer for regularisation having not been conceded by the authorities, this Court has been approached under Articles 226 and 227 of the Constitution, 2. The case of the petitioner is that she was appointed as a teacher for 89 days by the Managing Committee of C.S. Colony High School, Sambalpur, in the pay scale of Rs. 400-620/-with usual DA as admissible by the Government. The appointment letter which is dated 1-10-1981, however, stated that the pay scale would be given from the date of sanction and approval by the authority and for the time being she would be offered a consolidated amount of Rs. 200/- per month. It may be stated that the appointment came to be made because of opening of additional sections following introduction of ten-plus-two course in the School. Though the Inspector of Schools was approached by the Managing Committee for sanction of additional sections and additional posts, the same was granted with effect from 1-8-1985 only The appointment of the petitioner herself was approved with effect from 29- 1-1986, vide communication of the Inspector of Schools dated 28-1-1987 as at Annexure 4 As the additional sections had been approved only with effect from 3-8-1985, the benefit of regularisation of service under the Act was not made available to the petitioner. 3. As the claim is founded on the provisions of the Act, we may read the relevant portion which is as follows ; "3. Validation of certain appointments. 3. As the claim is founded on the provisions of the Act, we may read the relevant portion which is as follows ; "3. Validation of certain appointments. Notwithstanding anything contained in the Education Act or in the Rules or Regulations framed thereunder__ (a) graduate teachers, intermediate and matriculate teachers, physical education teachers and classical teachers of aided schools appointed by the managing authorities of such schools on ad hoc basis on or after the 1st December, 1976 but not later than the 31st December, 1984; (b) xx xx xx xx (c) xx xx xx xx who have rendered service as such teachers or lecturers for a period or at least one year without any break or with a break or breaks in one or more Aided Schools or Colleges and who were continuing as such teachers or whose services have been terminated after the 31st December, 1985 save for misconduct, or, as the case may be, lecturers validly and lawfully, except .those whose appointments have been validated by the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1981, shall, for ail intents and purposes, be deemed to have been validly and regularly appointed, and no such appointment shall be challenged in any Court of law merely on the ground that the appointment was made otherwise than in accordance with the procedure laid down in the Education Act and the Rules and Regulations framed thereunder. Provided ........." 4. To claim regularisation under the aforesaid provision, the following conditions must, be satisfied;- (i). The person concerned must have been appointed on ad hoc basis between 1st December, 1976 and 31st December, 1984 as a teacher in an aided school; (ii) he/she must have rendered service as such teacher for a period of at least one year without any break or with a break or breaks in one or more aided schools; and (iii) he/she must have continued as such teacher validly and lawfully on the date the Act came into force. 5. The first contention is satisfied in the present case as the ad hoc appointment was with effect from 1-10-1981, The second condition is also fulfilled as the petitioner had continued in her service in the school for a period of one year without any break. 5. The first contention is satisfied in the present case as the ad hoc appointment was with effect from 1-10-1981, The second condition is also fulfilled as the petitioner had continued in her service in the school for a period of one year without any break. It is the third condition which is the stumbling block inasmuch as this condition requires that on the relevant date the continuance as a teacher must have been valid and lawful.- Now a perusal of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (shortly called "the Rules") shows that a teacher can be validly and lawfully appointed in an aided educational institution only under four contingencies, viz., (i) he/she must have been selected by the Selection Board and thereafter allotted to the school as visualised by Sub-rules (1 to (3) of Rule 5 of the Rules; (ii) the appointment is made by the Managing Committee or the Governing Body for a period not exceeding three months against a vacancy arising out of the relinquishment of charge by or removal of an employee as mentioned in Rule 8 (2)(a) of the Rules; (iii) the appointment is made against a vacancy for a period of six months till the rate of receipt of the list from the Selection Board as stated in Rule 5 (8) of the Rules-all such appointments to be made by the Managing Committee or the Governing Body requiring prior approval of the Inspector or the Director, as the case may be, and (iv) appointment for a term exceeding six months till the recommendation of the Selection Board is received with the prior approval of the Government as stated in Rule 5 (9) of the Rules. 6. Appointments made as above can only be treated as valid and lawful. The present case does not apparently attract the first contingency. Though in the case at hand the initial appointment was for a period not exceeding three months which might have been so done keeping in view the provisions of Rule 8 (2) (a), but as the appointment was not because of relinquishment of charge by or removal of an employee, the appointment cannot be said to have satisfied the requirement of this rule also. In so far as the fulfilment of the requirement of Rule 5 (8) is concerned, the same is also wanting in so far as the petitioner is concerned prior to 29-1-1986 as it is from the said date that her appointment was approved by the Inspector of Schools. Though this approval is not prior inasmuch as it was accorded on 28-1-1987, nonetheless, we do not find any difficulty in holding that the Inspector's approval should be read from 29-1-'985 Admittedly, the present was not a rase of approval by the Government and so what is stated in Rule 5 (9) is not attracted. 7. On the facts us they have been presented to us, the best that can be said in favour of the petitioner is that her appointment became lawful with effect from i9-1-86 from which date the appointment was approved by the Inspector of Schools. As this date is beyond 31st December, 1984, it is urged by Shri Nayak that the case of the petitioner does not fall wilhin the purview of the Act. Question is as to what happens to the teachers who were appointed on ad hoc basis between 1-1-1976 and 31-12-1984 and who did not satisfy any of the aforesaid four contingencies during the aforesaid period but continued as such teachers and subsequently their appointments became valid and lawful ? Whether such teachers would be entitled to the benefit of the Act has to be seen. The Act being a beneficial piece of legislation, the same has to be liberally construed and the benefit of the same must be made available to the persons for whom it is meant, and if two views be reasonably possible on the interpretation of the validating clause, one which is favourable to the teachers has to be adopted. This is well-settled rule of interpretation. A reference to the Statement of Objects and Reasons shows that the benefit of the Act was sought to be given to the ad hoc appointees as they had rendered service for a considerable length of time during which period they had gained experience in teaching. I he fact that the teachers might have crossed their age limit to appear at the recruitment test conducted by the Selection Board was also borne in mind in this connection. I he fact that the teachers might have crossed their age limit to appear at the recruitment test conducted by the Selection Board was also borne in mind in this connection. So, the emphasis was on gaining of experience in teaching which would have been so whether a teacher was validly appointed or not This apart, the petitioner might have become over-aged by now to appear at the recruitment rest conducted by the Selection Board. 8. The third requirement of validation about which reference has been made earlier states that the teacher must have continued in service validiy and lawfully. The relevant date for deciding the continuation in service has to be the date on which the Act came into force which was 29th May, 1989. Now, the requirement of valid and lawful continuance as a teacher/lecturer may demand, according to some, that the person concerned must have so continued from the dale of his appointment till the Act came into force. According to others, this requirement would be satisfied if the person concerned had validly and lawfully held the post for some length of time because of which it could be said that he had continued to so hold the post. Both the views being reasonably possible we would adopt the second one as it favours the persons for whose benefit the Act was brought into force. As the petitioner had validly and lawfully held the post from 29-1-19E6, it can well be said that she had continued to so hold the post by the time the Act came into force, which was 24th May, 1989, More than three years' period is long enough to constitute continuity. We are, therefore, satisfied that the third of the afore-mentioned conditions is also fulfilled in the present case. 9. In view of the above, the petition is allowed and the opposite parties are directed to regularise the service of the petitioner; Before closing, may we make it clear that we have ordered for regularisation of the service of the petitioner on all the three conditions mentioned in paragraph 4 above being satisfied, all of which have to be satisfied for the purpose at hand. B.N. Dash, J. I agree. Final Result : Allowed