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2007 DIGILAW 896 (ORI)

State of Orissa v. Bhagaban Nahak

2007-11-29

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT R. N. BISWAL, J. : Petitioners have challenged the judgment and order dated 7.8.2003 passed by the Presiding Officer, State Education Tribunal, Orissa, Bhubaneswar in Appeal No.7 of 2002. 2. On 9.1.1975, the sole opp.party was appointed as a Trained Graduate Teacher in Chini Silpa High School, Babanpur in the district of Ganjam, by its Managing Committee. Pursuant to the said order he joined in the post on 9.7.1995 and his appoint¬ment was approved vide order dated 19.5.1981 of the Inspector of Schools, Ganjam and accordingly he received his monthly salary as a Trained Graduate Teacher. While continuing as such, the Head¬master of the said school was placed under suspension by the Managing Committee on 11.7.1983 and the opp.party was kept as Headmaster-in-charge of the said school by virtue of the order dated 15.7.1986 of the Inspector of Schools, Ganjam Circle (Petitioner No.3). The Managing Committee of the school passed a resolution on 29.1.1988 promoting the opp.party to the post of Headmaster, which was recommended by the Inspector of Schools, Ganjam Circle vide letter dated 10.2.1988 to the Director (Peti¬tioner No.2) for approval, but on 17.10.90 Petitioner No.2 re¬fused to approve it, on the ground that Rule 8(3) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 had already come into force with effect from 3.6.1988. Opp.party challenged the said rejection order dated 17.10.1990, before this Court in O.J.C. No.2074 of 1990. While dismissing the writ application on 26.3.1993 this Court directed therein that the opp.party would be paid monthly salary in the scale of pay, meant for a Trained Graduate Teacher. The Opp.party having been unsuccessful in getting promotion to the post of Headmaster continued as a Trained Graduate Teacher, but all on a sudden the Managing Committee of the School terminated his service with effect from 19.1.1994 as per Annexure-5. As required under Sec¬tion 10(A) of the Education Act, 1969, since approval of the Inspector of Schools, Ganjam Circle had not been obtained before passing such an order, the opp.party made representation to the Inspector of Schools on 8.3.1994 requesting to reinstate him in the former post, but he sat tight over the matter and did not do anything. On 22.5.1995 opp.party made a representation to the Director ventilating his grievance, but to no effect. On 22.5.1995 opp.party made a representation to the Director ventilating his grievance, but to no effect. So ulti¬mately he filed Original Application bearing O.A. No.1216(C) of 1995 before the Orissa Administrate Tribunal, Cuttack Bench, Cuttack. In the meantime the school was taken over by the State Government with effect from 7.6.1994 vide Government resolution dated 16.12.1994. The Orissa Administrative Tribunal disposed of the Original Application on 24.1.2001 directing the Director, Secondary Education to dispose of the representation of the Opp.party within three months. Accordingly the Director consid¬ered the representation vide order under Annexure-12 but refused to reinstate him in service, on the ground that opp.party was on long absence from duty since 1989. The said order along with the order of termination under Annexure-5 were challenged before the Presiding Officer, State Education Tribunal, Bhubaneswar in Appeal No.7 of 2002 which was allowed on 7.8.2003 with direction that the petitioners would adjust the opp.party against a Trained Graduate Teacher post in any other school within three months and that he would be entitled to get his salary till his reinstate¬ment. Being aggrieved with the said order, the petitioners have filed the present writ application. 3. In his counter affidavit opp. party stated that there is no illegality, impropriety or perversity in the impugned order so as to be interfered with by this Court by exercising its extraordinary power vested under Articles 226 and 227 of the Constitution of India and accordingly argued to dismiss the writ petition. 4. At the outset, learned counsel for the petitioners submitted that since the learned Education Tribunal had no juris¬diction to entertain the appeal filed before him, the writ peti¬tion should be allowed on that ground alone. According to him the dispute was with regard to termination of service of the opp.party by petitioner No.4. As envisaged under Section 24B(1) of the Orissa Education Act, 1969 (hereinafter referred to as “Education Act”), jurisdiction of the Education Tribunal is limited to the disputes and differences relating to or in connec¬tion with the eligibility, entitlement, payment or non-payment of grant-in-aid. The dispute relating to appointment or cancellation of appointment does not come within the jurisdiction of the Education Tribunal, so instead of deciding the appeal, it should have directed the appellant therein (present opp.party) to file the case in appropriate forum. The dispute relating to appointment or cancellation of appointment does not come within the jurisdiction of the Education Tribunal, so instead of deciding the appeal, it should have directed the appellant therein (present opp.party) to file the case in appropriate forum. Learned counsel for the petition¬ers further submitted that services of the opp.party was termi¬nated on 19.1.1994 and it was communicated to him on 28.2.1994. The State Government took over the management of all Non-Govern¬ment fully aided High Schools, including the school in question vide Notification dated 16.12.1994 with effect from 7.6.1994. Since the Opp.party was not in service on the relevant date, he was not inducted into Govt. Service. The Orissa Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 framed to regulate the method of recruitment and conditions of service of the persons, appointed to the posts of teachers and equivalent posts in Class-III of the State Civil Service does not have provision to adjust any employee of a non-Government aided school, subsequently taken over by Government, even if he does not come under the purview of the relevant noti¬fication for taking over such schools. So, if the impugned order passed by the Education Tribunal is allowed to be retained, then it cannot be executed. 5. Opp.party preferred the appeal before the Education Tribunal under Section 10-A(3) and not under Section 24-B of the said Act. As envisaged under Section 10-A of the Act, services of a teacher of an aided Educational Institution shall not be termi¬nated without obtaining prior approval, in writing of the Circle Inspector of Schools. In the case at hand, services of the opp.party was terminated by the Managing Committee without prior approval of the concerned Circle Inspector of Schools. There was also no post-facto approval to the order of termination. Opp.party made a representation to the said Circle Inspector of Schools ventilating his grievance, but to no effect. The representation made before the Director was rejected. So, he preferred the appeal before the Education Tribunal challenging the order of termination dated 19.1.1994 and the order of rejec¬tion of his representation made to the Director. 6. Now, the pertinent question is whether such an appeal is maintainable. The representation made before the Director was rejected. So, he preferred the appeal before the Education Tribunal challenging the order of termination dated 19.1.1994 and the order of rejec¬tion of his representation made to the Director. 6. Now, the pertinent question is whether such an appeal is maintainable. At this stage, it would be profitable to quote Section 10-A of the Act, which reads as follows :- “10-A. Service of teachers of aided institutions not to be terminated without approval - (1) The services of a teacher and other members of the staff of an aided Educational Institution shall not be terminated without obtaining the prior approval in writing of the - (a) Director in the case of a teacher and other members of the staff of a college; (b) Circle Inspector of Schools having jurisdiction, in the case of a teacher and other members of the staff or a school. (2) Every order passed by the Director or Circle Inspector, as the case may be, either according approval or refusing to accord approval under Sub-section (1) shall be communicated to the parties concerned within three months of the reference. (3) Any person aggrieved by an order passed under Sub-section (1) may prefer an appeal to the Tribunal within one month from the date of receipt of the order.” As per Sub-section-3 as quoted above any person aggrieved by an order passed under Sub-section-1 may prefer an appeal before the Tribunal within one month from the date of receipt of the order. As stated earlier opp.party preferred the appeal before the Education Tribunal against the order of his termination from service along with the order, rejecting his representation made to the Director, so the appeal was maintainable. Learned counsel for the petitioners submitted that services of the opp.party having been terminated on 19.1.1994, he ought to have filed the appeal on or before 18.2.1994, but he filed it on 12.8.2002. This inordinate delay ought not to have been condoned by the Education Tribunal. The order of termination of his services was intimated to the opp.party on 28.2.1994. He made the representa¬tion to petitioner No.3 on 8.3.1994. When petitioner No.3 did not take any action, opp.party made a representation to opp.party No.2 on 12.5.1995 who also sat over the matter. This inordinate delay ought not to have been condoned by the Education Tribunal. The order of termination of his services was intimated to the opp.party on 28.2.1994. He made the representa¬tion to petitioner No.3 on 8.3.1994. When petitioner No.3 did not take any action, opp.party made a representation to opp.party No.2 on 12.5.1995 who also sat over the matter. So, opp.party filed O.A. No.1216 of 1995 before the State Administrative Tribu¬nal, Cuttack Bench which on 24.1.2001 directed opp.party No.2 to dispose of the representation within three months. Petitioner No.2 rejected the representation on 23.7.2002, whereafter, the appeal before the Education Tribunal was filed on 11.8.2002. There was no laches on the part of opp.party, so the Education Tribunal rightly condoned the delay. 7. As required under Section 10-A of the Education Act, prior approval of the Inspector of Schools is required for termi¬nation of service of a teacher of an aided non-Government High School. Even if a teacher remains unauthorisedly absent from the School, yet his services cannot be terminated without prior approval of the Inspector of School. In such a case, it is open to the Managing Committee to proceed against the teacher con¬cerned and impose suitable punishment. In the case at hand, no such approval was obtained before terminating the services of opp.party, so the order of termination is void ab initio. In the eye of law, opp.party is deemed to have been continuing in serv¬ice. 8. As stated earlier services of the opp.party was termi¬nated by petitioner No.4 on 19.1.1994, which was communicated to him on 28.2.1994. Since the school was taken over by the Govern¬ment with effect from 7.6.1994, the opp.party not being in serv¬ice by that time was not inducted into Government service. But once it is held that termination of services of the opp.party was void ab-initio his right to the post can not be denied, only because in the meantime, the school in question was taken over by the Govt. The Orissa Subordinate Education (Method of Recruitment and Conditions of Service) Rules 1993 cannot stand as a bar to reinstate opp.party in service. So, we do not find any illegali¬ty, so far the order of reinstatement and the direction to the petitioners to adjust the opp.party against a trained graduate post in any other school as passed by the State Education Tribu¬nal. 9. So, we do not find any illegali¬ty, so far the order of reinstatement and the direction to the petitioners to adjust the opp.party against a trained graduate post in any other school as passed by the State Education Tribu¬nal. 9. Basing on the decision Union of India v. K. V. Janaki¬raman; A.I.R. 1991 SC 2010, the State Education Tribunal ordered that the opp.party was entitled to his back salary as a trained graduate teacher. In that decision the apex Court held- “The normal rule of “no work no pay” is not applicable to such cases where the employee although he is willing to work is kept a way from work by the authority for no fault of his. This is not a case where the employee remains away from work for his own reasons although the work is offered to him”. In the present case opp.party remained away from work since 28.9.1989 for his own reason, as found from the enquiry report submitted by Asst. Inspector of School under Annexure-2. So, he is not entitled to back salary. Accordingly, the order that the opp.party is entitled to back salary till his reinstatement is set aside. In the aforesaid premises, the Writ Petition is allowed in part. P. K. TRIPATHY, J. I agree. Petition allowed in part.