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2008 DIGILAW 153 (ORI)

Bipreswar Sahu v. State of Orissa

2008-02-20

L.K.MISHRA, P.K.TRIPATHY

body2008
JUDGMENT Petitioner challenges Annexures-3, the order passed by the Executive Officer, Cuttack Municipality. That order reads as hereunder- “In pursuance of order of the Hon’ble High Court in O.J.C. No.4091 of 1990 read with earlier direction made in O.J.C. No.229 of 1984 the case of Shri Bipinbehari Mohapatra, Headmaster, Municipal High School, Jobra along with all trained graduate teachers of Cuttack Municipality who had acquired 7 years of teaching experience after training as on 1.6.1983 as per the prescribed norm as laid down in rule 17(2)(i) of Chapter-IX of Board Regulations was taken into consideration on 25.11.1993 by the Selection Committee for promotion to the post of Headmaster. After taking into consideration the qualification, experience and merit of the eligible trained graduate teachers the selection Committee has been pleased to select Shri Bipinbehari Mohapatra as Headmaster for Jobra Municipal High School with effect from 1.6.1983 i.e. from the date the High School was taken over by Cuttack Municipality.” In view of the aforesaid decision of the selection commit¬tee, the continuance of Shri Bipinbehari Mohapatra as Headmaster in Municipal High School, Jobra is hereby regularised w.e.f. 1.6.1983.” 2. Earlier to the present writ petition, petitioner had made two successive writ applications to this Court in O.J.C. No.229 of 1984 disposed of on 9.5.1990 and O.J.C. No.4091 of 1990 disposed of on 10.5.1993. The decisions thereof and the order in Annexure-3 clearly depict the bureaucratic indiscipline of the concerned authorities while taking decision in appointing opp.party No.4 as Headmaster by overlooking and misinterpreting the law and over riding the decision of this Court. In fact, in such cases, petitioner should have brought application for con¬tempt which he had not done and therefore, we do not proceed in that respect. 3. After being noticed, opp.party Nos.2 and 3 representing the Cuttack Municipal Corporation have filed a counter affidavit. Opp.party No.4 in whose favour the order, Annexure-3 is passed has not filed any counter to defend the order therein. Similarly, opp.party No.1, the State has not filed any counter to deny the assertion in the writ petition. The following factual aspects asserted by the petitioner has not been disputed in the counter of opp.party Nos.2 and 3 and such fact has been repeatedly noted in the aforesaid two writ petitions disposed of by this Court. It appears therefrom that the petitioner is continuing as an Assist¬ant Teacher since 1969. The following factual aspects asserted by the petitioner has not been disputed in the counter of opp.party Nos.2 and 3 and such fact has been repeatedly noted in the aforesaid two writ petitions disposed of by this Court. It appears therefrom that the petitioner is continuing as an Assist¬ant Teacher since 1969. Though he was a Trained Graduate, but he was allowed I.A. C.T scale of pay at the initial stage, and later on he was allowed to draw Trained Graduate scale of pay with effect from 2.8.1976. On taking over the M.E. School at Jobra, a private educational institution. Opp.party No.1 upgraded the said M.E. School to a High School with effect from 1.1.1983 and with¬out affecting rights and claims of others, permitted opp.party No.4 to continue as Headmaster because he was continuing as the Headmaster of the M.E. School and got the Trained Graduate scale of pay with effect from 1.6.1983. Challenging the posting of opp.party No.4, petitioner filed O.J.C. No. 229 of 1984. After analysing the provisions of law on the matter of eligibility to be appointed/promoted as Headmaster, the Division Bench of this Court held that: “Further rule 426 of the Orissa Municipal Rules indicates that the Headmaster of secondary School is a selection post and promotion to selection post is to be made on the basis of quali¬fication and merit seniority being considered only where qualifi¬cation and merit are approximately equal. Under the provision of the Regulations of the Board of Secondary, Education, Orissa, Regulation No. 17 in Chapter-IX enumerates the conditions to be fulfilled before permission to open Class IX is given and it further provides that a Headmaster should be a trained graduate in Arts or Science with minimum 7 years experience after train¬ing. The fact that opp.party No.5 got the trained graduate scale in 1980 is sufficient to indicate that he did not have the requi¬site experience as contained in regulation No. 17 (2) in Chapter-IX of the said Regulation. That apart the very absorption of opposite party No.5 along with the other teachers of the taken over school issued under Annexure-9 clearly states that the appointment is without prejudice to the claims of others and purely temporary. The resolution of the Municipal council under Annexure-5 did not state as to what would be the status of the Headmaster of the taken over school. The resolution of the Municipal council under Annexure-5 did not state as to what would be the status of the Headmaster of the taken over school. At any rate, opposite party No.5 just on getting an information about the proposed take over of a private School and having resigned from the post of Headmas¬ter of M.E. School and joined the said private school as Headmas¬ter on the eve of the taken over though he had not at the requi¬site qualification under the regulation, referred to earlier, and even though he was much junior to the petitioner as a teacher in the Municipal School, cannot be said to have been validly ab¬sorbed in the cadre of Headmaster under the Municipality though factually at the point of take over he was working as a Headmas¬ter. In view of the aforesaid infirmities in the absorption of opposite party No.5 as Headmaster, the Municipality must be held to have ignored the claim of the petitioner and the rejection of the petitioner’s representation must be held to be unsustainable in law. In the premises, as aforesaid, we would call upon the Municipal Council of Cuttack Municipality and in the absence of the said council, the Collector, Cuttack, who is in charge of the Cuttack Municipality, to reconsider the question of permanent absorption in the post of Headmaster of Jobra High School under Cuttack Municipality in accordance with Rule 426 of the Orissa Municipal Rules taking into consideration the inter se seniority of the petitioner vis-a-vis opposite party No.5, their respective qualifications and merit as well as the provisions of the Board of Secondary Education Regulations, referred to earlier, and finally defied the matter within a period of two months from the date of receipt of our order. We, however, permit opp.party No.5 to continue in the said post until a decision is taken by the Collector, Cuttack, as directed above, with regard to the final absorption and after the decision is taken appropriate order regarding permanent filing up of the post of Headmaster, Jobra High School be passed in accordance with law.” After the above order, opp.party Nos.2 and 3 took decision on 20th August, 1990 to continue opp.party No.4 as Headmaster. Three grounds were advanced in support of that decision namely viz- (i) Petitioner appears in the grade of Trained Graduate Teacher, whereas opp.party No. 4 enlisted in the grade of Headmaster as per gradation list dated 6.5.1986. (ii) Rule 426(2) of the Orissa Municipal Rules, empowers the Municipality to make direct recruitment to the post of Headmaster and appointment of opp.party No. 4 be deemed as such; and (iii) Petitioner can not claim for posting as Headmaster in as much as 6 (six) Trained Graduate Teachers senior to him were not considered and they did not raise any grievance. In the judgment rendered on 10.5.1993 in O.J.C. No.4091 of 1990 the Division Bench of this Court considered the aforesaid grounds and found such grounds to be unacceptable apart from being illegal and un-sustainable on proper reading of law and the ratio in the case of O.J.C. 428 of 1978. Accordingly in the second writ application this Court held that : “In the impugned order, the Collector has referred to Educa¬tion Department Resolution dated 20.9.1970 relating to service conditions of Headmaster working in the Schools taken over by the Government. In the referred sub-clause it is stated that those who held the posts of Headmasters of the taken over High Schools on the date of their conversion shall, if they are trained gradu¬ates and have a minimum teaching experience of seven years, continue as such. It is further stated that those who do not have seven years experience on 1st March, 1989 their pay shall be fixed in the Government scale of pay for trained graduate. The Collector has declined to apply the principle set down in the aforesaid clause to Shri Mohapatra seemingly because the School taken over in the case at hand was by a Municipality. This is not a sound reason because in the said sub-clause Government has obviously applied the rule contained in sub rule (2) of rule 17 of the Board’s regulations. On above analysis the impugned order of the Collector cannot be sustained and is hereby quashed. Meanwhile an elected Council has assumed Office. In the case at hand the Executive Officer of the Municipality and Collector, Cuttack, as Chairman of the Municipality (there being no elected council) had been impleaded as Opp.parties. On above analysis the impugned order of the Collector cannot be sustained and is hereby quashed. Meanwhile an elected Council has assumed Office. In the case at hand the Executive Officer of the Municipality and Collector, Cuttack, as Chairman of the Municipality (there being no elected council) had been impleaded as Opp.parties. Consequently in the changed set up we direct the Municipal council to reconsider the question of appointment of Headmaster of the High School in question taking the guidelines spelt out in the decision of this Court in the earlier O.J.C. It is needless to mention that the Municipal Council shall consider that case of petitioner along with the cases of all trained graduate teachers working under the Municipality who possessed the requisite qualification and experience by 1.6.1983, with effect from which date the school was taken over. The writ petition is accordingly allowed. The petitioner shall be entitled to Rs.300/-(Rupees three hundred) as costs of this proceeding from the Municipal Council. Grounds advanced in the pleading are self explanatory to justify the comments made in the earlier judgment that he having been appointed as a Trained Graduate teacher w.e.f. 1.6.1983, opp.party No. 4 had no requisite qualification to be appointed as Headmaster. Therefore, the language used in Annexure-3 as quoted above that “Shri Bipinbehari Mohapatra as Headmaster in Municipal High School, Jobra with effect from 1.6.1983” is not only illegal but also bypassing the earlier orders of this Court. Though in Annexure-3 it has been stated that by the date of decision of the Selection Committee, opp.party No. 4 had already worked as a Trained Graduate Teacher (Headmaster) for more than 7 years, but what is the manner of assessment of the carrier of teachers including opp.party No. 4, the petitioner and other eligible candidates ? That is neither indicated in the counter nor any documents has been filed. As it has been indicated earli¬er, opp.party Nos. 2 and 3 formed a biased opinion in favour of opp.party No. 4, so as to allow him to continue as Headmaster even bypassing the judgment of this Court and therefore, in absence of relevant documents being pleaded or produced, the remark of the Selection Committee does not inspire confidence. As it has been indicated earli¬er, opp.party Nos. 2 and 3 formed a biased opinion in favour of opp.party No. 4, so as to allow him to continue as Headmaster even bypassing the judgment of this Court and therefore, in absence of relevant documents being pleaded or produced, the remark of the Selection Committee does not inspire confidence. Be that as it may, when opp.party No.4 was junior in rank and seniority in comparison to the petitioner and several others and when opp.party No. 4 was not eligible to be appointed as Head master with effect from 1.6.1983, therefore, the order Annexure 3 is illegal and accordingly, the same is quashed. All consequen¬tial benefits provided to opp.party No.4 pursuant to Annexure-3 be withdrawn/recovered. It is up to opp.party No.2 to take recourse to appropriate proceeding for recovery of any financial loss to the Municipality/Corporation from officers concerned. In that respect we do not make any further comment or order. It is stated by opp.party Nos. 2 and 3 that in the meantime petitioner has been appointed as the Headmaster. Looking to the relevant claim of the petitioner, we find that he did not claim for posting as Headmaster but putforth his grievance of ignoring his seniority and eligibility and considering the candidature of opp.party No.4 though the later was ineligible and junior. Under such circumstances, posting of the petitioner as Headmaster does not validate or legalise the order Annexure-3. The order in Annexure-3 at the cost of repetition is held to be absolutely illegal order. Keeping in view the attitude of the opp.party Nos. 2 and 3, we feel it proper to direct opp.party No. 1 to see that the aforesaid order be implemented by opp.party No. 2 and 3 in letter and spirit so as to recover the financial loss or else, opp.party No. 1 shall take appropriate legal actions against the erring officers working under opp.party No. 2. The opp.party No. 1 for that purpose shall verify this aspect and take a decision within a period of two months from today. The writ petition is accordingly allowed with cost and the order Annexure-3 is quashed. The cost is assessed at Rs. 1000/- (rupees one thousand) and that be paid to be petitioners by opp.party Nos. 2 and 3 within two months. Requisites be filed by next week to communicate this order to opp.party Nos. 1, 2 and 3. The writ petition is accordingly allowed with cost and the order Annexure-3 is quashed. The cost is assessed at Rs. 1000/- (rupees one thousand) and that be paid to be petitioners by opp.party Nos. 2 and 3 within two months. Requisites be filed by next week to communicate this order to opp.party Nos. 1, 2 and 3. Petition allowed with cost.