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2000 DIGILAW 438 (ORI)

SRI LAXMI NARAYAN DASH v. STATE OF ORISSA

2000-09-05

P.C.NAIK

body2000
JUDGMENT : P.C. Naik, J. - The challenge in this writ petition is to the order dated 30-5-2000 (Annexure-4) of the Inspector of Schools, Mayurbhanj Circle, Baripada whereby consequent upon reinstatement of opp. party No. 5, the order of approval passed in favor of the Petitioner has been withdrawn and in consequence whereof, the services of the Petitioner were terminated. 2. The facts giving rise to this writ petition may be briefly stated thus; Opposite party No. 5. Nishamani Mohanta was appointed as an assistant teacher against a second trained graduate post in Panchasakha High School, Mirigimundi in the district of Mayurbhanj and vides resolution of the Managing Committee, he was functioning as the Headmaster-in-charge of the said school. He was an approved teacher and while functioning as such, his services were terminated with effect from 13- 12-1996. Aggrieved with his termination, he preferred O.J.C. No. 2625 of 1997 wherein the order of termination was quashed and it was declared that the Petitioner therein would be deemed to be in service and would be entitled to all service benefits admissible to him under the law. He has, however, not been reinstated so far. 3. As is clear from the record, after the services of opp. party No. 5 were terminated the Managing Committee appointed the Petitioner as an assistant teacher in the school on 3-3-1997. Obviously., the appointment was in the vacancy caused due to termination of the services of the opp. party No. 5. The Petitioner, thereafter, approached this Court by way of O.J.C. No. 14693 of 1998 praying, inter alia, for a direction to the opp. parties to accord approval of his appointment and for release of salary component. The said writ petition was disposed of on 12-1l-1998 with a direction to the Director of Secondary Education, Orissa to dispose of the Petitioner's representation regarding his approval and release of grant-in-aid within a stipulated period. Consequent thereto, the Inspector of. Schools, vide order dated,22-5-1999 (annexure-2) approved the services of the Petitioner with effect from 5-3-1997 in the scale of pay of Rs. 1400-2600/-. 4. In the meantime, since the order terminating the services of the opposite party No. 5 was quashed by this Court, he, i. e., opp. party No. 5 approached the authorities for being reinstated. Schools, vide order dated,22-5-1999 (annexure-2) approved the services of the Petitioner with effect from 5-3-1997 in the scale of pay of Rs. 1400-2600/-. 4. In the meantime, since the order terminating the services of the opposite party No. 5 was quashed by this Court, he, i. e., opp. party No. 5 approached the authorities for being reinstated. However, the Inspector of Schools, as is clear from Annexure-3, did not take any step for reinstating the opposite party No. 5 in the institution from which he was terminated but on the contrary, desired to know if he was willing to be adjusted in the existing vacancy in some other institution. The opp. party No. 5, however, did not opt for being adjusted in any other institution and had moved this Court for suitable action against the authorities for not complying with the order reinstating him in service. Subsequently, the impugned order (Annexure-4) came to be passed whereby the opp. party No. 5 was ordered to be reinstated in Panchasakha. High School], Mirigimundi after terminating the services of the Petitioner. 5. From the material on record, it is obvious that the entire confusion was brought about because while considering the case of approval of the Petitioner, the authorities concerned did not apply their mind to the fact that against the order of his termination, the opp. party No. 5 had moved this Court and that the matter was sub Judie. The authorities ought to have been aware of the fact that if the order at termination was set aside, the natural consequences that would follow would be the reinstatement of the opp. party No. 5. Thus, the appointment of the Petitioner, which was in the vacancy caused due to the termination of the service of the opp. party No. 5 was dependant on the question, whether or not, the order of termination would be up-held. The authorities also ought to have taken into consideration the fact that as the institution in question is an aided institution, the vacancy, if any, was required to be filled up through a process of Selection Board, and that any appointment by the Managing Committee would only be for the period during which a Selection Board candidate was not available. The authorities also ought to have taken into consideration the fact that as the institution in question is an aided institution, the vacancy, if any, was required to be filled up through a process of Selection Board, and that any appointment by the Managing Committee would only be for the period during which a Selection Board candidate was not available. In other words, the provisions of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 ought to have been kept in mind by the authorities. It is no doubt true that this Court while disposing of the writ petition filed by the Petitioner, had observed that the matter relating to the approval of the services of the Petitioner be considered, but that order should not have been construed as an order directing approval of the Petitioner. When the Court directs a particular case to be considered, it obviously means, it is to be considered in accordance with the statutory provisions and not dehorns the same. But, this has not been done and the services of the Petitioner were approved in utter disregard to the statutory rules governing the field and in this process, a person, i.e., opposite party No. 5 who ought to be reinstated in service has not been reinstated and a person, i. e. the Petitioner, who under the rules could not have got advantage of regular appointment, has been given such an advantage by the authorities. 6. The order of approval of the Petitioner vide Annexure-2 gives an impression that the approval of the Petitioner is in terms of the order of this Court passed in O.J.C. No. 14693 of 1998. The order of the Inspector of Schools dated 22-5-1999 begins with the sentence "Pursuant to the instruction contained in the Directorate latter No. 12156 dt. 30-3-99 in view of the judgment passed by the Hon'ble High Court vides Order No. 2 dt. 12-11-98 in O.J.C. No. 14693/98, the appointment of Sri Laxmi Narayan Dash, B.A.B.E.D. Asst. teacher, Panchasakha High School, Mirigimundi is hereby approved.... 30-3-99 in view of the judgment passed by the Hon'ble High Court vides Order No. 2 dt. 12-11-98 in O.J.C. No. 14693/98, the appointment of Sri Laxmi Narayan Dash, B.A.B.E.D. Asst. teacher, Panchasakha High School, Mirigimundi is hereby approved.... The order of this Court, a reference to which is made in the order vide Annexure-2 merely mentions that if the matter relating to the approval of the services of the Petitioner is pending consideration, a decision may be taken within four months from the date of receipt of the said order. As observed above, the order did not direct approval. It merely directed consideration of the Petitioner's case. Reference may also be made to the order of the Inspector of Schools dated 12-1-2000 (Annexute-3) in which also it is mentioned that "the services of Shri Dash (petitioner herein was approved as per the direction of the Hon'ble High Court and instruction of the Directorate". Thus, the order of this Court has been mis-read and misconstrued by the authorities for the reasons best known to them. 7. As it appears from Annexure-3, instead of reinstating the opposite party No. 5, the authorities were more interested in retaining the Petitioner and it was only after a contempt petition was moved by the opposite party No. 5. the impugned order vide Annexure-4 was passed. It follows that the opposite party No. 5 is to be reinstated in the institution from which he was terminated in terms of the order passed in O.J.C. No. 2625 of 1997 and is entitled to all service benefits. 8. In view of the discussions aforesaid, the logical conclusion would be to dismiss the writ petition. However, considering the fact that the authorities though fully conscious of the legal provisions permitted the Petitioner to continue in service for all these years and in view of the letter dated 12-1-2000 (Annexure-3) of the Inspector of Schools and his office order dated 30-5-2000 (Annexure-4), it is directed that the Petitioner may be adjusted in some other institution under the jurisdiction of opposite party No. 3 for which appropriate action shall be taken by the concerned authorities promptly. But delay, if any, in adjusting the Petitioner shall not delay the reinstatement of opposite party No. 5. 9. With the aforesaid observation and direction the writ petition stands disposed of. Writ petition disposed of.