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2001 DIGILAW 543 (ORI)

Bibekananda Das v. State of Orissa

2001-12-18

P.K.MISRA, R.K.PATRA

body2001
JUDGMENT R. K. PATRA, J. — This application is practically an off-shoot of the judgment of this Court dated 27.6.1997 rendered in O.J.C. No. 1012 of 1996 (which was a writ petition filed by the appli¬cant Bibekananda Das) reported in 1997 (II) O.L.R. 122. The applicant prays in this application for a direction to the opposite parties to implement and give effect to the order and direction contained in the aforementioned decision. 2. It is relevant to briefly trace the history leading to filing of this application. The applicant was an assistant teacher in Pipili High School since 6.11.1989. He filed the aforesaid writ petition (O.J.C. No. 1012 of 1996) seeking for a direction to the opposite parties to approve his appointment and release his salary both arrear and current in the pay scale of untrained graduate teacher with effect from his date of appointment. He had also made a prayer for quashing of office order No. 1657 dated 8.2.1996 of the Inspector of Schools disapproving his appointment against the additional section on the plea that he did not possess the pre¬scribed qualification to hold the post of trained graduate teach¬er. The opposite parties contested the case by filing counter affidavit. Their case was that the applicant did not possess the requisite qualification and, therefore, the Inspector of Schools rightly disapproved his appointment. 3. After hearing both parties this Court allowed the writ petition and quashed the order of the Inspector of Schools con¬tained in letter No. 1657 dated 8.2.1996 with direction to him to approve the appointment of the applicant with effect from 6.11.1989 and pay him the scale of pay of assistant teacher with effect from the said date. It was further directed that the Inspector of Schools would go on paying to him the current salary in the untrained graduate scale of pay and would give him reason¬able time to acquire the B.Ed. qualification. The operative part of the judgment was modified by order dated 3.9.1997 to the effect that the approval of the applicant’s service would be with effect from 7.6.1994. i.e., the date of taking over of the School, instead of 6.11.1989. As the opposite parties did not comply with the direction mentioned above, the applicant filed an application to take appropriate action against them. i.e., the date of taking over of the School, instead of 6.11.1989. As the opposite parties did not comply with the direction mentioned above, the applicant filed an application to take appropriate action against them. Pursuant to the notice issued, the Inspector of Schools, Puri Circle, appeared and undertook to approve the appointment of the appli¬cant and release his salary. As a matter of fact, he filed an affidavit with a prayer to grant him six months’ time to comply with the direction. As per his undertaking and in obedience to this Court’s order the Inspector of Schools approved the appli¬cant’s appointment with effect from 7.6.1994. He was also allowed to undergo B.Ed. training as an inservice candidate. It is now claimed by the applicant that he passed B.Ed. examination on 9.3.2001. At this juncture, the Inspector of Schools suddenly communicated an order contained in letter dated 27.5.2000 to the Headmaster of the School not to allow the applicant to work as a teacher holding, inter alia, that his appointment is void ab initio. The said order of the Inspector of Schools was pursuant to letter No. 13680/S&ME dated 11.5.2000 of the Commissioner-cum-Secretary to Government in the School and Mass Education Depart¬ment, Orissa and Memo No. 11670/S&ME dated 24.4.2000 of the Deputy Secretary to Government in the School and Mass Education Department, Orissa. 4. It would be appropriate to extract the entire office order dated 27.5.2000 of the Inspector of Schools, Puri Circle, which is at Annexure-C. “In pursuance of letter No. 13680/S&ME dated 11.5.2000 of Commissioner-cum-Secretary to Government, School and Mass Educa¬tion Department, Orissa, Bhubaneswar and Memo No. 11670/S&ME dated 24.4.2000 of the Deputy Secretary to Govt. Department of School and Mass Education, Orissa, Sri Bibekananda Das whose continuance in Pipili High School, Pipili beyond 701 Additional Section teacher as against 869 posts approved earlier by virtue of order of Hon’ble Court in O.J.C. No. 1012/96 is considered and rejected on the following grounds. (1) That the State Government had taken over 2929 fully aided High Schools with effect from 7.6.1994 including petition¬er’s School vide Resolution No. 38522 dt. 16.12.94 and No. 14258 dt. 13.5.1997. (1) That the State Government had taken over 2929 fully aided High Schools with effect from 7.6.1994 including petition¬er’s School vide Resolution No. 38522 dt. 16.12.94 and No. 14258 dt. 13.5.1997. In the said Resolution it was clearly stipulated that the State Government shall take over only liability of approved teaching and non-teaching staff who are receiving full grant-in-aid then by way of absorption in Government service and the State Government shall not be liable to clear any liability whatsoever incurred by the Management except as above. The incumbent was neither acquired B.Ed. qualification nor getting grant-in-aid as on 7.6.94, then the question of creation of additional section teacher post for him by the Government does not arise. (2) That the incumbent was not selected and appointed in accordance with the provisions contained in the Orissa Education Act and Orissa Education (Recruitment and Conditions of Services of Teachers and Members of the Staff of the Aided Educational Institutions) Rules, 1974. Therefore the appointment of the said incumbent made by the then managing committee and passed on the liability to the educational authori¬ty shall be treated as null and void without having creation post to accommodate him by the Government. (3) That the justification for creation of any additional section teacher as per yardstick shall not entitle any management to create a post and appoint anybody without following statutory procedure and pass on the liability to the State Government such additional posts have to be created with the approval of the Government who shall bear the salary cost by way of grant-in-aid. Any creation of post without such approval shall be treated as non-existent in the eye of law and State Government cannot be made liable to pay for the illegal action of any management. Hon’ble High Court in the case of Smt. Bidyulata Mohanty vrs. State in the O.J.C. No. 2564/93 held that Managing Committee was not justified in appointing the section teacher by creating post and passing on financial burden on the educational authorities. The appointment of the incumbent by the Management against a non-existent post void ab initio. Hon’ble High Court in the case of Smt. Bidyulata Mohanty vrs. State in the O.J.C. No. 2564/93 held that Managing Committee was not justified in appointing the section teacher by creating post and passing on financial burden on the educational authorities. The appointment of the incumbent by the Management against a non-existent post void ab initio. (4) That during 1995-96 all the Circle Inspectors of the State have reported about the appointment of 869 additional section teachers by the managements to the State Government out of this 869 additional section teachers so reported the Govern¬ment in Finance Department and P&C Department have approved for creation of 701 additional section teachers wherein the incumbent has not been enlisted. (5) In the above circumstances since the post of additional section teacher which are not created by the Government to accom¬modate the incumbent and as such the question of his/her con¬tinuance in the School beyond 701 creation of additional section teacher post does not arise. Hence the claim of the petitioner is hereby rejected." A bare perusal of the order would show that the State Government purports to declare the appointment of the applicant void ab initio on the following grounds : (1) The applicant did not possess the requisite qualification nor was he getting grant-in-aid as on 7.6.1994 and, therefore, the question of creation of additional section teacher post for him does not arise; (2) The applicant was not selected and appointed in accordance with the provisions of the Orissa Education Act and the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of the Aided Educational Institutions) Rules, 1974; (3) The Managing Committee was not justified in appointing the applicant by creating a post and passing on the financial burden on the educational authorities as decided by this Court in O.J.C. No. 2564 of 1993 (Smt. Bindulata Mohanta v. State (wrongly de¬scribed as Bidyutlata Mohanty); and (4) Out of the 869 additional section teacher posts, the Govern¬ment in Finance Department and P & C Department have approved creation of 701 additional section teachers wherein the applicant has not been enlisted. The last sentence of the impugned order makes an interesting reading which reads as follows : “Hence the claim of the petitioner is hereby rejected.” 5. The last sentence of the impugned order makes an interesting reading which reads as follows : “Hence the claim of the petitioner is hereby rejected.” 5. On consideration of the submission of the counsel for parties and on perusal of the cause filed by the opposite parties to this application, we are of the opinion that it is a glaring example of the Executive arrogating to itself the power of review over a judicial decision. All the aforesaid grounds mentioned in the impugned order were raised by the opposite parties in the writ petition of the applicant (O.J.C. No. 1012 of 1996) to oppose his claim. This Court considered them and overruled the S&ME. The applicant’s writ petition was allowed by recording mainly the following findings : (i) During the relevant time, an untrained (graduate) teacher was eligible to be appointed as an assistant teacher in a non-government (aided) High School. He was not eligible to receive trained (graduate) scale of pay. Untrained (graduate) scale of pay, however, was admissible to him. the applicant being a pre 1993 appointee,his appointment cannot be disapproved merely be¬cause he does not possess the training qualification (B.Ed.). (ii) The Government instructions contained in letter No. 1074/EYS. dated 5.1.1991 at Annexure-C/3 cannot be a bar against the applicant in view of the fact that he was appointed on 6.11.1989 prior to the issuance of the said letter; and (iii) the State Government has already approved the post (with applicant’s name) against additional section in Pipili High School, Pipili. As already indicated, the office order No. 1657 dated 8.2.1996 passed by the Inspector of Schools disapproving the applicant’s appointment was quashed and he was directed to approve his ap¬pointment with effect from 7.6.1994. In obedience to the direc¬tion, the Inspector of Schools passed order approving the appli¬cant’s appointment. 6. The impugned order at Annexure-C is vulnerable and is liable to be quashed for the following reasons : (i) The applicant had approached this Court by filing the aforesaid O.J.C.No. 1012 of 1996 challenging his non-approval as an Assistant Teacher. This Court after hearing accepted his claim in judgment dated 27.6.1997. It is a decision inter-parties. It has become final and therefore is conclusive, binding and irre¬versible. A judicial decision of this Court is not available to be tinkered with as has been done by the State Government. This Court after hearing accepted his claim in judgment dated 27.6.1997. It is a decision inter-parties. It has become final and therefore is conclusive, binding and irre¬versible. A judicial decision of this Court is not available to be tinkered with as has been done by the State Government. The Executive branch of the Government bears a great responsibility for upholding and obeying the judicial orders. Respect for law and its institutions is essential in our democratic set-up where the Constitution enjoins the rule of law. By passing the impugned order the Secretary of the Department has wilfully circumvented this Court’s decision in indirect manner and is liable for con¬tempt on his failure to implement the decision. No authority of the Government can claim immunity from contempt liability if act of disobedience of Court’s order is apparent and obstructs admin¬istration of justice. (ii) While deciding the case of the applicant, this Court in its judgment took note of an earlier decision of this Court in Bindulata Mohanta v. State (O.J.C. No. 2564 of 1993) cited on behalf of the State. For the reasons recorded in para-10 of the judgment, this Court distinguished the said case. Strangely, the Secretary of the department has referred to the very decision of Bindulata Mohanta v. State in passing the impugned order appar¬ently on the assumption that he was exercising the power of judicial review over the decision of this Court. We will simply remind the old adage that where angels fear to treads, “some people” rush in. (iii) In the judgment this Court noticed that after coming into force of the 1993 Rules, there could be no scope for ap¬pointment of a person as a teacher without the training qualifi¬cation of B.Ed. But prior to commencement of those rules, an untrained teacher was eligible to be appointed in a trained graduate post with a restriction that he will not be entitled to draw trained graduate scale. In the impugned order, the State Government purports to overrule the aforesaid finding recorded by this Court. It is really a distressing feature and we condemn the conduct of the Secretary in this regard. (iv) in para-11 (iii) of the judgment, this Court has re¬corded a finding that the State Government has already approved the post (with petitioner’s name) against additional section in Pipili High School, Pipili which is a matter of fact. It is really a distressing feature and we condemn the conduct of the Secretary in this regard. (iv) in para-11 (iii) of the judgment, this Court has re¬corded a finding that the State Government has already approved the post (with petitioner’s name) against additional section in Pipili High School, Pipili which is a matter of fact. That being the finding, there is no further scope to hold in the impugned order that the name of the applicant had not been listed for approval of his appointment. (v) This Court while allowing the writ petition of the applicant quashed the office order No. 1657 dated 8.2.1996 passed by the Inspector of Schools, Puri and he was directed to approve his appointment. In obedience to that direction, the Inspector of Schools has in fact passed an order approving his appointment. After having complied with that direction, there is no further scope to go behind that order. (vi) The claim laid by the applicant in the O.J.C. was accepted by this Court in its judgment which has become final, conclusive and binding between the parties and, therefore, there is no legal justification to observe in the last part of the impugned order to the effect that “claim of the petitioner is hereby rejected”. 7. For the aforesaid reasons, we hereby hold the impugned order at Annexure-C as null and void and quash the S&ME. We direct the concerned authorities to accord all necessary benefit flowing from the judgment of this Court to the applicant forthwith and report compliance by 31st of January, 2002, failing which it would amount to contempt of Court. The misc. case is allowed. The records received from the Orissa Administrative Tribunal may be sent back to it forthwith. CH. P. K. MISHRA, J. I agree. Misc. Case allowed.