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2003 DIGILAW 327 (ORI)

Shaikh Farid v. State of Orissa

2003-04-30

B.PANIGRAHI, P.K.MISRA

body2003
JUDGMENT B. PANIGRAHI, J. — The petitioners in this writ petition have challenged the alleged illegal and arbitrary action of the opp.party No.3 (Inspector of Schools) in not approving their services who were appointed by the Headmaster -cum- Secretary (Opp.party No.4) against trained Matric posts. 2. Petitioner No.1 had requisite qualification to be appointed against a trained Matric Post as he was only a graduate at the time of appointment. Petitioner No.2 had of course possessed requisite qualification for being appointed against a trained Matric post. 3. Petitioner No.1 was appointed by the Secretary of the School on 19.12.1990 against the post of Matric C.T. Teacher which was subsequently ratified by the Managing Committee on 25.11.1991. Similarly, petitioner No.2 was also appointed on the same date and their appointment was also ratified by the Managing Committee on 25.1.1991. Even though the Managing Committee made correspondences on several occasions with the opp.party No.3, Inspector of Schools, but nothing could turn out from those correspondences. Therefore, the petitioners have been compelled to file this petition. 4. Opp.Party No.3 has filed a counter wherein it has been stated that since the petitioners did not possess the requisite training qualification for being appointed against trained C.T. Posts, therefore, their appointment was rightly not approved. It has been further stated that since prior approval has not been taken by the School authority, therefore, the rule does not permit post facto approval. The appointment of the petitioners being irregular, therefore, the approval to the appointment of the petitioners was not accorded. 5. Mr. Patnaik, learned counsel appearing for the peti¬tioners has at the out set brought to our notice the judgment re¬ported in 1997 (II) OLR 122 in the case of Bibekananda Das v. State of Orissa and others wherein it has been held :- “From the for-going discussions, the following conclusions unhesitatingly emerge : (i) During the relevant time, an untrained (graduate) teach¬er 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 petitioner being a pre 1993 appointee, his appointment cannot be disapproved merely because he does not possess the training qualification (B.Ed); (ii) the Government instructions contained in letter No. 1074/EYS. He was not eligible to receive trained (graduate) scale of pay. Untrained (graduate) scale of pay, however, was admissible to him. The petitioner being a pre 1993 appointee, his appointment cannot be disapproved merely because he does not possess the training qualification (B.Ed); (ii) the Government instructions contained in letter No. 1074/EYS. date 5.1.1991 at Annexure-C/3 cannot be a bar against the petitioner 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 petitioner’s name) against additional section in Pipli High School, Pipli.” 6. Mr. Behera, learned counsel appearing for the opp.parties has advanced a contention that there should not have been any post facto approval to the appointment. In reply, reli¬ance was placed upon a judgment reported in 1991 (I) OLR 447 in the case of Managing Committee, Majhipada M.E. School v. State of Orissa and others, wherein an identical question was considered and it was held that it is permissible under law to accord post facto approval. 7. Therefore, in the above background, we hope that the authority shall consider the case of the petitioners for approval against their respective posts keeping in view the above two judgments and take a decision within three months from the date of communication of this order. 8. With the above observation, the writ petition is dis¬posed of. Let the copies of this order along with the copy of the writ petition and the copies of the two aforementioned judgments be communicated to opp.party No. 3 within three weeks at the instance of the petitioner. Requisites be put in within a week. CH. P. K. MISRA, J. I agree. Petition disposed of.