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1998 DIGILAW 383 (ORI)

MANJULATA MALLICK v. STATE OF ORISSA

1998-11-05

P.K.MISRA, SUSANTA CHATTERJI

body1998
JUDGMENT : P.K. Misra, J. - The Petitioner in this has prayed for quashing of Annexure-13 and for service with fullback wages. 2. The Petitioner was appointed in the post of craft teacher in Luakera High School, Rourkela, as per the order dated 18-3-1989, annexed as Annexure-3 to the writ application. Though her initial appointment was temporary, she was allowed to continue from time to time in the said school. While the matter stood thus, the Rourkela (Steel Township) Notified Area Council decided to take over the management of the Luakera writ application reinstatement in High School pursuant to the Extraordinary notification published in the Gazette dated 7-2-1992 (Annexure-4) and as per the notification dated 8-7-1992 (Annexure-7), the management of the school was transferred to Rourkela (Steel Township) Notified" Area Council. It was indicated in the said notification inter alia that: Consequent on such transfer of the management of the said schools to the said N.A. C. and the un-trained teachers should be given in-service training within two years and will be eligible to continue in service and the yard-stick for teachers as prescribed by the Education Department must not exceed... Thereafter, the Notified Area Counsel completed the process of formal taking over, as evident from the letter issued to the Secretary of Luakera High School as per Annexure-8. Clause (iv) of the said letter indicated that the staff position and student's strength as on the day were provisionally accepted, Annexure-9, the letter dated 7-12-1992 issued by the Executive Officer (N.A. C.) (S.T.), Rourkela further, indicates that the Council resolved to take over the management subject to certain conditions, Annexure-IS indicates that the present Petitioner was appointed as one of the teachers. Such appointment of the Petitioner and other teachers of the school was extended from time to time by the Notified Area Council while the matter stood thus the Executive Officer. N.A. C.. Such appointment of the Petitioner and other teachers of the school was extended from time to time by the Notified Area Council while the matter stood thus the Executive Officer. N.A. C.. by memo No. 8904 dated 31-12-1992 communicated the following order to the Petitioner: Smt. Manjulata Mallik, Craft Teacher, Luakera High School, Luakera continuing in probation as such in the School as an appointee of the erst-while Private management of the School so taken over by the N.A.C. (S.T,) is hereby relieved of her duties with immediate effect in termination of her services which are no more required on her qualification is not commensurate with the post therefor, The aforesaid order is under challenge in this writ application. 3. In the writ application it has been contended that the Petitioner has undergone training as per Annexures-l and 2 and it cannot be said that she was not qualified to hold the post of craft teacher. It is further submitted that in case the training undergone by her was insufficient she was required to be given opportunity to complete the training as envisaged at the time of taking over of the school. 4. A counter affidavit has been filed on behalf of opposite party No. 3. the Executive Officer of the N.A. C. (S.T.). Rourkela, No counter affidavit has been,filed by any other party. It is to be noticed that opposite party No. 4 which was added subsequently by way of amendment has entered appearance through the same counsel for opposite party No. 3. In the counter filed by opposite party No. 3. it has been stated that as per the existing Government guide lines the posts of Craft Teachers are not sanctioned by the Government and such posts are unwanted. It is further stated in paragraph-3 of the counter that: ...That in inadvertency it is stated in Annexure-13 that the Petitioner is relieved from her duties with immediate effect in termination of services as against her qualification is not commensurate with the post therefor. It is an inadvertent mistake in issuing such letter. In fact as the post of the Petitioner was not approved as,per the standard staffing post of the pattern prescribed by the Government and it was in a dying cadre her services were terminated Reliance has been placed by Annexures-A/3 and B/3 in support of such contention. It is an inadvertent mistake in issuing such letter. In fact as the post of the Petitioner was not approved as,per the standard staffing post of the pattern prescribed by the Government and it was in a dying cadre her services were terminated Reliance has been placed by Annexures-A/3 and B/3 in support of such contention. Annexure-A/3 is a letter dated 8-6-1990 issued by the Deputy Director of Non-Government schools to all the Inspectors of School relating to creation of craft teaching post in aided High Schools in the State. In the said letter it is indicated that the Government have prescribed the standard staff for non-Government High Schools in which craft teachers are not included and as such the Government do not agree with the proposal for creation of craft teachers in non-Government High Schools and the Inspectors were directed to issue instructions to all aided Boys and Girls High Schools not to appoint any craft teachers in their schools. Subsequently in Annexure-B/3, it was indicated that no irregular appointment' should be made by the. Managing Committee in any private schools and the vacancies arising out of retirement of craft teachers should be surrendered and no appointments should be made against those vacancies. 5. It is apparent that the Petitioner was appointed as a craft teacher prior to the letters under Annexture-A/3 and B/3 which had been issued in June 1990, and May 1990, respectively. In the aforesaid letters it is nowhere indicated that if any craft teacher had already been appointed, his services should be terminated, however, the question as to whether the service of a craft teacher should be terminated on the basis of Annexures A/3 and B/3, need not be finally decided in the present case as it is apparent from Annexure-13.that termination was not on account of Government instructions under Annexures-A/3 and B/3. The termination order which has already been quoted indicates that the termination was on account of the fact that the qualification of the Petitioner was not commensurate to the post. It is of course true that opposite party No. 3 has tried to justify the termination by referring to Annexures-A/3 and B/3 and by explaining that the termination was on account of those instructions, as according to opposite party No. 3, the Government did not approve the appointment of the Petitioner. It is of course true that opposite party No. 3 has tried to justify the termination by referring to Annexures-A/3 and B/3 and by explaining that the termination was on account of those instructions, as according to opposite party No. 3, the Government did not approve the appointment of the Petitioner. Law is well settled 'that "...public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself..." (See A.I. Rule 1952 S.C. 16, Commissioner of Police, Bombay v. Gordhandas Bhanji). In the present case, the order under Annexure-13 leaves no room for doubt that the termination was on the ground of lack of requisite qualification. In the present proceeding, the opposite party No. 3 has not sought to justify the order of termination on the ground of alleged lack of qualification but on the basis of some other reasons which do not appear in Annexure-A/13 itself. We are afraid that when the order of termination was on ground, it would not be open to opposite party No. 3 to justify the same on some other ground. Since the opposite party No. 3 has not indicated what is the requisite qualification of a craft teacher, there is no other option but to hold that the order under Annexure-13 was passed arbitrarily without any justification and accordingly, the said order of termination is liable to be quashed and, as such, the Petitioner should be reinstated in service. 6. The next question is as to whether the Petitioner should be paid back wages. Though in normal circumstances when an order of termination is found to be illegal a person is to be reinstated with back wages. However, keeping in view the background and the circumstance, the court in appropriate cases can direct that the back wages may not be paid. Though in normal circumstances when an order of termination is found to be illegal a person is to be reinstated with back wages. However, keeping in view the background and the circumstance, the court in appropriate cases can direct that the back wages may not be paid. In the present case, it appears that the appointment of the Petitioner was continued from time to the and that was some doubt regarding the approval of the post. The materials on record itself indicate that in the meantime, the Notified Area Council (Steel Township) Rourkela, has been bifurcated 'and amalgamated either with opposite party No. 8 or with Rourkela Municipality (o. p. No. 4) and the matter does not appear to have been settled as evident from Annexure-IS. Though the Petitioner has approached this Court promptly enough, the matter has remained.pending under the circumstances beyond.the control of the opposite parties. It is not known as to whether the Petitioner has been profitably employed in some capacity in the meantime. Having regard to all these aspects, we are of the view that instead of directing the payment of full back wages, the Petitioner may be paid a sum of Rs. 15.000/-, as compensation in lieu of her back wages. It is made clear that the Petitioner must be deemed to have been reinstated for other purposes including the purpose of continuity in her service. 7. Subject to the aforesaid direction the writ application is allowed. Necessary steps shall he taken by the opposite parties within a period of two months from the date of receipt of the writ. Susanta Chatterji, J. 8. I agree. Writ application allowed. Final Result : Allowed