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2005 DIGILAW 661 (ORI)

Ranjana Das v. State of Orissa

2005-11-18

A.K.SAMANTARAY, B.P.DAS

body2005
JUDGMENT A. K. SAMANTARAY, J. — In this writ petition the petitioner has prayed for quashing the order dated 13.11.98 (Annexure-15) passed by the Director, Elementary Education, Orissa (O.P. No.2) rejecting the proposal for according approval to the appointment of the petitioner, Assistant Teacher of Bagalpur U.P. (M.E.) School and directing the opposite parties, specifically O.P. No.2, to approve her appointment as Asst. Teacher of the said Educational Institution from the date of her appointment i.e. 5.10.1989 as against the sanctioned post of Asst. Teacher. 2. The case of the petitioner is that she is continuing as an Asst. Teacher of Bagalpur U.P. (M.E.) School with effect from 5.10.1989 and the school was receiving Grant-in-aid right from the year of its establishment in the year 1928. The said educa¬tional institution is having four classes starting from Oriya Medium Class-IV to Class-VII. As per the prescribed yardstick prevalent the school was having five teachers i.e. one Headmaster and four Asst. Teachers. In the year 1989 one Suryamani Mohanty, Matric C.T. Asst. Teacher retired on 30.9.1989 on attaining the age of superannuation and in view of the resultant vacancy, in order to fill up the said vacant post, the Managing Committee of the School as per the Orissa Education (Recruitment and Condi¬tions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (in short, ‘1974 Rules’) issued an advertisement on 1.9.1989 inviting plain paper applica¬tions from the eligible candidates having Matric C.T. qualifica¬tion or above for the post of Asst. Teacher which was likely to fall vacant from 1.10.1989 due to retirement of Sri Suryamani Mohanty, Asst. Teacher. The petitioner in response to the said advertisement submitted her application to the Managing Committee of the School for consideration of her case for appointment against the said vacant post along with other candidates and the Managing Committee of the School following all formalities as per rules selected the petitioner to hold the post of Asst. Teacher lying vacant in the School. Since the post lying vacant was due to superannuation of an Asst. Teacher, which post was sanctioned as per rules, the Managing Committee was not authorized to give any appointment and to pay salary as per the scale fixed by the State Government, the Managing Committee of the School preferred to give appointment to the petitioner against the said vacant post on honorarium basis. Teacher, which post was sanctioned as per rules, the Managing Committee was not authorized to give any appointment and to pay salary as per the scale fixed by the State Government, the Managing Committee of the School preferred to give appointment to the petitioner against the said vacant post on honorarium basis. The petitioner then was having the degree in Bachelor of Arts. Considering the recommendation of the Selection Committee order of appointment was issued in favour of the petitioner on 2.10.1989 and in the said order of appointment it was specifically stated that the petitioner was appointed on ad hoc basis as Asst. Teacher in the existing vacancy created on the retirement of Sri Suryamani Mohanty vide Annexure-2. The petitioner in pursuance of the said appointment order joined in the School on 5.10.1989 (Annexure-3). Thereafter, on 8.12.1989 the Managing Committee of the School passed a Resolution approv¬ing the appointment of the petitioner. The petitioner while in the service of the School completed her B.Ed. course and passed B.Ed examination from Utkal University on 20.5.1991. While the petitioner was continuing as Asst. Teacher on honorarium basis, on 12.12.1990 a letter was issued from the Director of Elementary Education (O.P. No.2) (Annexure-5) to the Secretary of the School on the subject of allotment of candidate for appointment as trained Matric Teacher in the school and the name of one Smt. Prativa Prusty was sponsored for appointment as trained Matric C.T. Assistant teacher. But the said sponsored candidate Smt. Prusty did not prefer to join in the school of the petitioner as she had been appointed as a Primary School Teacher in the Biridi Block, which is nearer to her house.In the aforesaid circum¬stances, the petitioner, who was continuing on honorarium basis against the sanctioned post of C.T. Assistant Teacher submitted an application before the Headmaster of the School for regulari¬zation of her service and for approval of the post of Asst. Teacher of the School. In the said application she had mentioned that she is a physically handicapped lady and had completed her B.Ed. course and as such her case might be considered for approval of appointment. Teacher of the School. In the said application she had mentioned that she is a physically handicapped lady and had completed her B.Ed. course and as such her case might be considered for approval of appointment. The Headmaster of the School in his turn issued a letter on 18.9.1992 (Annexure-8) to the D.I. of Schools, Jagat¬singhpur (O.P. No.4) referring to the Managing Committee’s ap¬proval and also stating therein that the petitioner who was ap¬pointed on honorarium basis was still continuing on the same basis and had completed her B.Ed course successfully and was rendering service to the School without any payment and the Headmaster also recommended for approval of the appointment as the petitioner is a partially handicapped person and she needed sympathetic consideration. On receipt of the recommendation from the Headmaster of the School, the D.I. of Schools verified the official records regarding the process and procedure adopted by the Managing Committee in giving the petitioner appointment against the vacant post and on verification of all the official records issued a letter to the Director of Elementary Education (O.P. No.2) recommending for approval of the appointment of the petitioner as against the post of sanctioned Asst. Teacher of the School. The D.I. of Schools also indicated in the said letter that the Selection Board Candidate Smt.Prativa Prusty duly spon¬sored for the post did not join. She also further recommended that since the petitioner was a qualified teacher having B.Ed. degree and a physically handicapped candidate her case may be considered by the Director. The D.I. of Schools also enclosed all the documents including the appointment letter, joining report, the certificates regarding the petitioner's educational qualifi¬cations and the certificate showing her to be orthopaedically handicapped while recommending her case to the Director vide Annexure-9 dt. 22.12.1992. The Director vide his letter dated 4.2.1993 (Annexure-10) to the D.I. of Schools made certain quer¬ies including the query as to why the proposal for recommendation was being forwarded after lapse of more than three years of the appointment of the petitioner and to clarify whether the peti¬tioner was drawing her salary under direct payment scheme and if not the reason thereof. She also directed the D.I. of Schools to furnish the appointment file of the petitioner and some other documents and the D.I. of Schools in his turn sought for clarifi¬cation and submission of the documents from the Headmaster of the School, who complied with the same vide his letter dated 26.11.1993 (Annexure-11). The D.I. of Schools submitted all the relevant clarification sought for by the Director and again the Director sought for information regarding the number of sanc¬tioned post of the school as per the yardstick in the year 1998 vide his letter dated 22.9.1998 (Annexure-13) and the D.I. of Schools gave the details by his letter dated 16.10.1998 (Annex¬ure-14) that the school had sanctioned strength of one Headmaster and four Asst. Teachers as the school is having four classes from Class-IV to Class-VII and this sanctioned strength of teachers is there from the very beginning of the school from the year 1928. Even after receiving all the information to his query the Director refused to accord approval of appointment of the peti¬tioner as Asst. Teacher of the School on the ground that (i) the name of the petitioner did not find place in the list of teachers approved by Government when the school was taken over by Govern¬ment with effect from 1.4.1991; and (ii) the appointment of Smt. Das in the Bagalpur U.P. (M.E.) School has not been made by the Managing Committee as per rules, as she was untrained and one Selection Board candidate was allotted for appointment against the post. This refusal of approval of appointment of the peti¬tioner (Annexure-15) has been challenged and sought to be quashed in this writ petition. 3. A counter affidavit has been filed by the Director of Elementary Education (O.P. No.2) for all the opposite parties. In the counter affidavit it has been stated that the petitioner while untrained was appointed by the Managing Committee of the School on 5.10.1989 as Asst. Teacher against the vacancy caused due to retirement of Sri Suryamani Mohanty, Assistant Teacher on 30.9.1989 in contravention of 1974 Rules, amended in 1981. It is stated in the counter that as per 1974 Rules amended in 1981 the vacancies in any aided educational institution will be filled up from amongst the candidates from the State Selection Board and in the instant case after retirement of Sri Suryamani Mohanty, Asst. It is stated in the counter that as per 1974 Rules amended in 1981 the vacancies in any aided educational institution will be filled up from amongst the candidates from the State Selection Board and in the instant case after retirement of Sri Suryamani Mohanty, Asst. Teacher of the School a selection board trained candidate was sponsored to the School by O.P. No.2 for her posting against the retirement vacancy and on receipt of the letter of O.P. No.2 the Secretary of the Managing Committee of the School issued appoint¬ment order in favour of the Selection Board candidate, but the Selection Board candidate did not turn up to join the school in time. A stand has been taken by the O.P. No.2 that since prior to the issuance of the appointment order in favour of the Selection Board candidate the Secretary of the School issued appointment order in favour of the petitioner to work in the school on hono¬rarium basis, which is beyond the power of the Secretary of an aided educational institution. It is stated in the paragraph-8 of the counter affidavit that due to non-joining of the Selection Board Candidate the Secretary of the School submitted the propos¬al in 1992 to approve the appointment of the petitioner who was appointed on honorarium basis and the proposal was much after the school was taken over by the Government on 1.4.1991. It is fur¬ther stated that the petitioner was untrained at the time of her appointment by the Secretary of the School and subsequently became trained in the year, 1991. The last stand taken by the O.P. No.2 is that at the time of taking over of the school by the Government, the name of the petitioner was not in the list and her appointment was not approved as she was untrained and her appointment was not made as per rules. 4. A rejoinder affidavit has been filed by the petitioner meeting the points raised in the counter affidavit filed by O.P. No.2 stating therein that since the school was going without a teacher after retirement of an Asst. 4. A rejoinder affidavit has been filed by the petitioner meeting the points raised in the counter affidavit filed by O.P. No.2 stating therein that since the school was going without a teacher after retirement of an Asst. Teacher, Sri Suryamani Mohanty, the Management of the School had invited applications and after observing all formalities selected the petitioner who only was willing to work on honorarium basis and since there was every possibility of the selection board candidate being spon¬sored for appointment in the vacant post and the petitioner had to quit in that event, the matter of her appointment was not intimated by the Managing Committee of the School to the District Inspector of the Schools. Right from the year 1989 no Selection Board Candidate was sponsored for appointment against the vacan¬cy, as stated above, and in December, 1990 allotment of a candi¬date for appointment against the said vacant post in the school was made and Smt. Prativa Prusty was sponsored, who declined to join vide her own letter Annexure-6. It is further clarified in the Rejoinder affidavit that as there was every chance of allot¬ment of Selection Board candidate to fill up the vacancy at any time after Smt. Prativa Prusty refused to join, the matter was not brought to the notice of the D.I. of Schools and after the school was taken over by the Government on 1.4.1991 and since till 1992 no allotment of Selection Board Candidate was made for appointment against the vacant post and since in the meantime the petitioner had obtained B.Ed. qualification, the Headmaster on the representation of the petitioner wrote for approval of the appointment of the petitioner in the vacant sanctioned post of C.T. Asst. Teacher. 5. We have heard Mr. S. K. Rath, learned counsel appearing for the petitioner as well as Mr. R. Behera, learned Addl. Stand¬ing Counsel appearing for the School & Mass Education Department. From the above pleadings of the parties the following admitted positions emerge. That the school in question, which was estab¬lished in the year 1928, was getting Grant-in-aid right from the year of establishment. The school is an upgraded M.E. School having four classes, i.e., Classes IV to VII and it has sanc¬tioned post of five teachers - one Headmaster and four Asst. Teachers. On 30.9.1989 one Matric C.T. Asst. Teacher, Sri Suryam¬ani Mohanty, retired attaining the age of superannuation. The school is an upgraded M.E. School having four classes, i.e., Classes IV to VII and it has sanc¬tioned post of five teachers - one Headmaster and four Asst. Teachers. On 30.9.1989 one Matric C.T. Asst. Teacher, Sri Suryam¬ani Mohanty, retired attaining the age of superannuation. There was no intimation received regarding allotment of Selection Board candidate to be appointed in the said vacant post. It was in the midst of the education session for which the Managing Committee to avoid any disruption in the taking up of the classes in the school invited applications to fill up the vacant post and sever¬al candidates applied and after due selection process the peti¬tioner, who was a simple graduate and physically handicapped lady was selected and she was the only candidate who offered herself to serve the school on honorarium basis and she was given and ad hoc appointment pursuant to which she joined the school on 5.10.1989. Admittedly, this fact of appointment of the petitioner in the school was not intimated to the D.I. of Schools as the Managing Committee was expecting allotment of a Selection Board candidate against the vacant post of C.T. Assistant Teacher because due to superannuation of Sri Suryamani Mohanty. No Selection Board candidate to fill up the said vacancy was allotted for more than one year and in December, 1990 the Secretary of the school was intimated by the Deputy Director of the Directorate of Elementary Education regarding allotment of candidate for appointment as trained Matric teacher and the name of one Smt. Prativa Prusty was sponsored. Said Smt. Prusty since was appointed in the Biridi Block as a primary school teacher she declined to come and join in the petitioner’s school on the ground that it was away from her home. Thereafter, there was no allotment of any Matric C.T. teacher to fill up the vacancy and the petitioner continued to work on honorarium basis and on 20.5.1991 the petitioner passed B.E.d. Examination from Utkal University. During this period also there was no allotment of Selection Board candidate to fill up the vacant post of Matric C.T. Asst. Teacher by the authorities. After passing of B.Ed. Examination the petitioner on 1.9.1992 wrote to the Headmaster of the school to recommend her case for her regularization in the service of the school as she was working in the school right from 5.10.1989. Teacher by the authorities. After passing of B.Ed. Examination the petitioner on 1.9.1992 wrote to the Headmaster of the school to recommend her case for her regularization in the service of the school as she was working in the school right from 5.10.1989. The Headmaster in his turn on 18.9.1992 wrote to the D.I. of Schools stating in details regarding the qualification of the petitioner, her state of physical disablement and the services rendered by her to the school without any payment for a long period and requested him to approve the appointment of the petitioner and the D.I. of Schools in his turn sought for clarification from the Director if the appointment of the petitioner be approved as per Amendment Act, 1991. The D.I. of Schools also gave the details about the peti¬tioner and mentioned that the petitioner had already worked in the school for more than three years and was continuing in the school and he enclosed all the relevant documents including educational certificates and orthopaedically handicapped certifi¬cate of the petitioner to the Director. There was query by the Director from the D.I. of Schools and the same was complied by him obtaining further information from the Headmaster of the School. Ultimately, on 13.11.1998 vide Annexure-15 the Director refused to accord approval to the appointment of the petitioner. 6. The refusal of approval to the appointment of the petitioner is on two grounds. The first ground is that her name did not find place in the list of teachers approved by the Gov¬ernment when the school was taken over by the Government on 1.4.1991. The second ground is that the appointment of the peti¬tioner has not been made by the Managing Committee as per rules as she was untrained and a Selection Board candidate was allotted for appointment against the post. 7. Both the ground on which the Director (O.P. No.2) has rejected the proposal for approval of the appointment of the petitioner appear to us to be flimsy and untenable both in facts and law. 7. Both the ground on which the Director (O.P. No.2) has rejected the proposal for approval of the appointment of the petitioner appear to us to be flimsy and untenable both in facts and law. Learned counsel for petitioner argued with vehemence that since in the midst of the session one of the sanctioned posts of Matric C.T. Assistant Teacher retired, in the said vacancy the petitioner who was a Graduate after selection by the Managing Committee was appointed and joined and took classes and the school ran smoothly and right from the joining of the petitioner on 5.10.1989 till December, 1990 no Selection Board candidate was allotted to the school and the petitioner went on working in the school on honorarium basis. Even after the Selection Board candi¬date refused to join no step was taken by the opposite parties to allot any other substitute to fill up the vacant post and the petitioner so continued in the school. He further argued that no Selection Board candidate was allotted thereafter and in the meantime the school was taken over by the Government 1.4.1991. When the list of teachers in the school was submitted by the Government the name of the petitioner was not included as because she was untrained and the Managing Committee expected appointment of the Selection Board candidate in the vacancy and the petition¬er in that case was to leave the school giving way to the Selec¬tion Board candidate. The explanation for non-inclusion of the name of the petitioner appears to us to be plausible and convinc¬ing and when the petitioner had no claim to the post as she was working on honorarium basis and was ready and willing to give way to the Selection Board sponsored candidate, in our considered opinion, there was no necessity of including her name in the list of teachers for approval when the school was taken over by the Government. 8. 8. As regards the 2nd point questioning the appointment of one untrained teacher which the petitioner was then, it was argued by learned counsel for the petitioner that the petitioner since was not claiming any remuneration and was rendering free service to the school being a Graduate and no Selection Board candidate joined in the vacancy of the Matric C.T. Assistant Teacher and the Headmaster since found her suitable and discharg¬ing he duties regularly and sincerely this extraneous ground raised by the Director 7-8 years after the refusal of the Selec¬tion Board candidate to join the school is totally untenable and such a ground has been adopted to some how refuse approval of the appointment of the petitioner. 9. Learned Addl. Standing Counsel appearing for the School and Mass Education Department could not convince us and he also could not explain as to why no Selection Board candidate was sponsored for 7-8 years after the first allotted candidate re¬fused to join the school. At this point, it would not be out of place to note that opposite parties are oblivious of the func¬tioning of the school and even after the school was taken over on 1.4.1991 there was no attempt to fill up the vacant post which occurred on account of superannuation in 1989. We would also like to observe here that this trained Graduate Teacher working on gratis in the school sincerely and she is willing to be absorbed in the sanctioned post of Matric C.T. Assistant Teacher although she is more qualified being a B.Ed. Teacher and her case of approval in the Matric C.T. post was being refused raising some extraneous grounds without properly applying mind to the explana¬tion and clarification submitted from time to time by the D.I. of Schools. 10. In view of the above we have not the slightest hesita¬tion to quash Annexure-15, the communication dated 13.11.1998, refusing to accord approval of the appointment of the petitioner and accordingly we quash the same and direct that the appointment of the petitioner be approved by the Director, Elementary Educa¬tion, Orissa (O.P. No.2) from the date of her appointment as Assistant Teacher from 5.10.1989. We further direct that the petitioner is entitled her salary in the post of Matric C.T. Assistant Teacher from 20.5.1991 i.e. the date she passed her B.Ed. examination and became a trained teacher. We further direct that the petitioner is entitled her salary in the post of Matric C.T. Assistant Teacher from 20.5.1991 i.e. the date she passed her B.Ed. examination and became a trained teacher. The arrear salary from the said date be computed and paid to her. The entire exer¬cise be completed within a period of four months from the date of receipt of this order. 11. The writ petition is accordingly allowed. B. P. DAS, J. I agree. Petition allowed.