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2003 DIGILAW 184 (ORI)

Rama Panigrahi v. State of Orissa

2003-02-28

A.S.NAIDU, L.MOHAPATRA

body2003
JUDGMENT P. K. BALASUBRAMANYAN, CJ. — Town Girls’ High School, Balangir was an aided institution within the meaning of Orissa Education Act. It was within the grant-in-aid fold with effect from 1.3.1974. On 17.9.1979, the petitioner in this writ peti¬tion, a science graduate in Natural Science with Chemistry and Certificate of Teachers Training, entered service as a Physical Education Teacher. According to the staffing pattern fixed by the Government as per order dated 8.7.1981, the said school had eight teachers including the Headmistress and the petitioner, the Physical Education Teacher. Against the additional sections, two other teachers, including opposite party No. 5, were working. On 9.11.1981, the petitioner became a Trained Graduate. A new yard-stick was prescribed by the Government with effect from 1.6.1983. But, it came into force only on 8.7.1991. Steps were taken to meet that yard-stick. On 12.1.1991, opposite party No. 5 was promoted to a rank in the Trained Graduate scale against Class IX-B with effect from 1.1.1991 and the petitioner who was work¬ing as Physical Education Teacher, but had acquired B.Ed. quali¬fication, was promoted to the rank of I.A. (C.T.) of Class VIII-B. On 1.2.1992, the petitioner was promoted by the Management to the Trained Graduate post against Class IX-B. Approval for that posting was sought. The Inspector of Schools, Balangir Circle recommended to the Director of Secondary Education for promotion of the petitioner as per the decision of the Managing Committee. On 28.4.1992, approval was accorded by the Director of Secondary Education to the promotion of the petitioner to the post of Trained Graduate against the additional section of Class VIII-B with effect from 1.4.1991 in terms of Rule 8(2)(b) of Orissa Education Rules. On 23.11.1992, the Inspector of Schools, Balan¬gir Circle reverted the petitioner from the Trained Graduate Post to the Trained Intermediate post. The petitioner thereupon filed the present writ petition on 15.12.1992, challenging that order and impleading opposite party No. 5 who had been allowed Trained Graduate Scale of pay in the place of the petitioner. 2. Meanwhile, the school was taken over by the Government with effect from 7.6.1994. The said decision of the Government specified that the handing over of Management to the Government by non-Government aided High Schools, was along with the approved teaching and non-teaching staff. 2. Meanwhile, the school was taken over by the Government with effect from 7.6.1994. The said decision of the Government specified that the handing over of Management to the Government by non-Government aided High Schools, was along with the approved teaching and non-teaching staff. It further provided that the taken over employees would be treated as Government servants with effect from 7.6.1994 on conditions of service mentioned therein. The writ petition filed by the petitioner came up for hearing before a Division Bench on 24.4.2002. 3. In terms of Section 15 of the Administrative Tribunals Act, 1985, an Administrative Tribunal for the State had been constituted to deal with matters specified in that Act. Any dispute relating to service was within the purview of that Tribu¬nal. By virtue of the take over by the Government, the petitioner and opposite party No. 5 both became Government servants with effect from 7.6.1994. Therefore, as on the date on which the writ petition came for hearing, the petitioner and the grievances put forward by her in the writ petition, came within the purview of The Orissa Administrative Tribunal. Relying on the decision of a Division Bench in Nalini Prava Dash v. State of Orissa and others : 2000 (I) OLR 447 . It was contended on behalf of opposite party No. 5 that the petitioner having become a Government servant and a separate Tribunal having been created for dealing with griev¬ances like the one put forward by the writ petitioner in the writ petition, in terms of the Administrative Tribunals Act, this Court had lost its jurisdiction to deal with the writ petition or to grant relief therein. This contention was sought to be met by counsel for the petitioner by contending that the grievance put forward by the petitioner related to her position and status in a non-Government aided school with reference to a date prior to 7.6.1994, when the school was taken over by the Government and such a claim or grievance, could be dealt with and decided by this Court the jurisdiction of which, had been rightly invoked by the petitioner when the writ petition was filed. It was pointed out that as on the date of filing of the wit petition, the wit petitioner could not have approached the Orissa Administrative Tribunal. It was pointed out that as on the date of filing of the wit petition, the wit petitioner could not have approached the Orissa Administrative Tribunal. Counsel for the petitioner placed reli¬ance on the decision of another Division Bench of this Court in Gokulananda Panda v. State of Orissa and others : 2000 (II) OLR 210. The Division Bench hearing the writ petition in an identical situation accepted the position that it can deal with it and grant relief to the petitioner therein, since the dispute related to a status before the institution become a Government school. When the present writ petition came up for hearing, both these decisions were brought to the notice of the Division Bench. The Division Bench found that it was confronted with two decisions, one holding that after the take over of the school by the Govern¬ment pursuant to the resolution of the Government dated 16.12.1994 though the writ petition filed before this Court prior to the take over of the school relating to a cause of action which arose prior to the take over of the school can no longer be entertained by this Court and the other, holding that even after the take over of the school pursuant to the said resolution of the Government dated 16.12.1994, the writ petition relating to a cause of action which had arisen prior to the take over of the school, could be entertained and decided on merits by the High Court. The Division Bench felt that the conflict required to be resolved by an authoritative pronouncement by a Full Bench and consequently made a reference of the point, whether in respect of a cause of action which had arisen prior to the take over of the school based on which a writ petition had already been filed prior to the take over of the school on 7.6.1994, this Court continued to have jurisdiction to decide the writ petition on merits or whether this Court ceased to have jurisdiction to decide the writ petition on merits since the jurisdiction stood vested in or transferred to the Orissa Administrative Tribunal and whether the Tribunal could exercise jurisdiction with respect to matters pending before this Court as on 7.6.1994, the date of take over. 4. Under Section 4 of the Administrative Tribunals Act, 1985, (hereinafter referred to as the ‘Act’) an Administrative Tribunal could be established. 4. Under Section 4 of the Administrative Tribunals Act, 1985, (hereinafter referred to as the ‘Act’) an Administrative Tribunal could be established. Section 4 (2) of the Act provides that on receipt of a request in this behalf from the State Gov¬ernment, the Central Government may establish an Administrative Tribunal for the State. Such a Tribunal on the request of the Government of Orissa, was established by a notification. A teach¬er of non-Government school, though an aided institution, did not have the right to invoke the jurisdiction of that Tribunal. Under Section 15 of the Act, the Tribunal was vested with jurisdiction to deal with matters which admittedly took in the dispute in¬volved in this writ petition. Section 21 which provided for a period of limitation by virtue of Sub-section (2), recognised the pendency of proceedings for redressal of grievances commenced before the relevant date, before a High Court. Section 28 of the Act excluded the jurisdiction of all Courts except the Supreme Court to deal with disputes covered by the Act, on and from the date from which the jurisdiction become exercisable under the Act by the Tribunal. In relation to recruitment and matters concern¬ing recruitment to any service or post or service matters con¬cerning members of any service or persons appointed to any serv¬ice or post, only the jurisdiction of the Supreme Court and of Industrial Tribunal were saved. Section 29 of the Act provided that cases pending in Courts including High Courts, other than appeals in the High Court, shall stand transferred to the Admin¬istrative Tribunal. 5. In Nalini Prava Desh v. State of Orissa and others : 2000 (I) OLR 447 , the Division Bench held that the contention of the petitioner in that case that since the claim related to a period prior to the petitioner acquiring the status of a Govern¬ment servant, the petitioner was entitled to ventilate her griev¬ance before the High Court in the pending writ petition, cannot be accepted since her claim included a claim for grant-in-aid from the Government. The Court took the view that since the petitioner therein had become a Government servant, she had to seek her remedy before the Orissa Administrative Tribunal. 6. The Court took the view that since the petitioner therein had become a Government servant, she had to seek her remedy before the Orissa Administrative Tribunal. 6. The Division Bench in Gokulananda Panda v. State of Orissa and others : 2000 (II) OLR 210 on the other hand took the view that since the claim related to the status of the petitioner in a non-Government aided school and the take over of the school by the Government only consequently affected his status, the question can and ought to be decided by this Court in the pending writ petition. 7. The resolution of this controversy would normally have involved a detailed discussion of the various provisions of the Act, in the light of the decided cases of High Courts brought to our notice. But this exercise has become unnecessary in view of the pronouncement of the Supreme Court in the recent decision in Kendriya Vidyalaya Sangathan and another v. Subash Sharma etc. : JT 2002 (2) SC 568. The Kendriya Vidyalaya, an autonomous body registered under the Societies Registration Act, was brought within the purview of the Act by a notification of the Government of India dated 17th December, 1998 issued under Section 14 (2) of the Act. By that notification, it was specified that the Act was to apply to the organisations mentioned in the schedule to the notification. Kendriya Vidyalaya was item No. 34 in that notifi¬cation. When the writ petition involving a dispute in a Vidyalaya was filed in the High Court of Jammu and Kashmir, this notifica¬tion had not been issued. But it had been issued when the writ petition came up for final hearing. When it was taken up for final hearing, it was argued that the High Court ceased to have jurisdiction to deal with the matter raised in the writ peti¬tion. The High Court, relying on a Full Bench decision of that Court in Kuldip Khud v. Masud Ahmad Choudhury and others : 1994 JKLR 25 , held that the writ Court continued to have jurisdiction to decide the dispute and hence there was no occasion to transfer the proceeding to the Tribunal under Section 29 of the Act. On appeal to the Supreme Court, the Supreme Court, quoted the fol¬lowing passages from the decision in L. Chandra Kumar v. Union of India and others : JT 1997 (3) 589. “(93).. On appeal to the Supreme Court, the Supreme Court, quoted the fol¬lowing passages from the decision in L. Chandra Kumar v. Union of India and others : JT 1997 (3) 589. “(93).. We may add that the tribunals will, however, continue to Act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Court even in cases where they question the vires of statutory legislations (except, as mentioned, where the legisla¬tion which creates the particular tribunal is challenged) by overlooking the jurisdiction of the tribunal concerned.” “(99).. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they ques¬tion the vires of statutory legislations (except where the legis¬lation which creates the particular tribunal is challenged) by overlooking the jurisdiction of the tribunal concerned. Section 5 (6) of the Act is valid and constitutional and is to be inter¬preted in the manner we have indicated.” 8. The Supreme Court held that the High Court was in error in holding that the proceeding did not require to be transferred to the Tribunal. It was stated that in L. Chandra Kumar’s case, the Constitution Bench of the Supreme Court had clearly held that the Tribunal set up under the Act shall continue to act as the only Courts of first instance in respect of areas of law for which they have been constituted and it was not open to the litigants to directly approach the High Court even in cases where they question the vires of statutory legislation by overlooking the jurisdiction of the concerned Tribunal. The Supreme Court clearly held that the High Court of Jammu and Kashmir was in error in holding that it could continue to entertain the writ petition in spite of the notification bringing Kendriya Vidya¬layas within the purview of the Act and the proceeding required to be transferred to the Tribunal under Section 29 of the Act. 9. The Supreme Court clearly held that the High Court of Jammu and Kashmir was in error in holding that it could continue to entertain the writ petition in spite of the notification bringing Kendriya Vidya¬layas within the purview of the Act and the proceeding required to be transferred to the Tribunal under Section 29 of the Act. 9. The only difference in the case decided by the Supreme Court in the Kendriya Vidyalaya case and in the present case is that whereas in the case before the Supreme Court it was by a notification pending the writ petition under Section 14 of the Act bringing Kendriya Vidyalayas within the purview of the Act that the question arose in the present case, the status of the petitioner before this Court was converted into that of a Govern¬ment servant by the take over of the school by the Government pending the writ petition bringing her within the jurisdiction of the Tribunal. In our view, this difference does not in any manner affect the question of jurisdiction. In either case, the dispute had come within the purview of the Tribunal during the pendency of the writ petition. In one, by bringing the institution within the fold of the Act and the in the other, by bringing the peti¬tioner and her dispute within the purview of the Act. In view of the clear pronouncement by the Supreme Court that even in such cases, the proceeding requires to be transferred to the Tribunal, we hold that the view adopted in Nalini Prava Dash v. State of Orissa and others : 2000 (I) OLR 447 is the correct one. In other words, we find that the view adopted therein has now the seal of approval of the Supreme Court in Kendriya Vidyalayas Sangathan’s case. 10. In the light of the conclusion as above, the question referred to us has to be answered by holding that on and from the date a non-Government educational institution becomes a Government school, and the teaching and non-teaching staff acquire the status of Government servants, grievances raised by them come within the purview of the Act and consequent¬ly, a proceeding pending in this Court requires to be transferred to the Orissa Administrative Tribunal for decision in terms of Section 29 of the Act. Since what requires to be done as a conse¬quence in this case is to order the transfer of the proceeding to the Orissa Administrative Tribunal, we do not think it necessary to send back the case to the Division Bench for the purpose of passing such a formal order. We, therefore, direct that this proceeding initiated by the petitioner be transferred to the Orissa Administrative Tribunal for decision in accordance with law. Revision answered.