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2008 DIGILAW 646 (ORI)

NIKUNJA KISHORE DAS v. STATE OF ORISSA

2008-08-05

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : Indrajit Mahanty, J. - The petitioner Nikunja Kishore Das, son of Niranjan Das has filed this writ application seeking a direction to the Opposite Parties 1 to 4 to issue ah order of appointment to the petitioner against a Trained Graduate Post with retrospective effect or in alternative to direct the said Opposite Parties to pay Trained Graduate scale of pay to the petitioner and to quash Annexures-2 and 3 to the writ application. 2. Shri Niranjan Das, the father of the petitioner was serving as a Sub-Inspector of Schools, Alanda Circle and had been declared permanently and completely incapacitated for further Government Service by the Chief District Medical Officer, Cuttack with effect from 11.5.1993. Accordingly, the petitioner's father was relieved from Government Service with effect from 11.5.1993 vide the letter dated 1.6.1993 under Aimexure-1. The petitioner, legal heir of Niranjan Das had made an application for appointment as a Trained Graduate Teacher under, the Rehabilitation Assistance Scheme as per G.O. No. 25586/Gen. Dated 13.9.1990. That application of the petitioner Nikunja Kishore Das came to be disposed of by the then Inspector of Schools, JagalMnghpur Circle vide his loiter No. 5310 dated 1.6.1993 under Annexure-1 indicating therein that the aforesaid Government Order stipulates in point 9(1) that appointment under these Rules cannot be made against promotional posts. Since the J.S.E.B. posts are filled up from among the L.S.E.S. teachers' on promotion the prayer of the petitioner was not considered at the level of the Inspector of Schools and instructions were sought for whether the petitioner, who by then a B.A.B.Ed. could be appointed under the Rehabilitation Assistance Scheme. It appears that pursuant to the letter of the Inspector of Schools, the Director of Secondary Education, Orissa vide his letter No. 33923 dated 29.7.1993 wrote to the Inspector of Schools directing that the matter of providing Rehabilitation Assistance to Nikunja Kishore Das, legal heir of Niranjan Das, Ex-S.I. of Schools, Alanda may be examined in terms of G.O. No. 25586 elated 13.9.1990 in the scale of pay applicable to Matric C.T. Teachers. Accordingly, vide the letter dated 31.7.1993 (Annexure-3), the Inspector of Schools issued a letter; of appointment to the petitioner appointing him as an Assistance Teacher in L.S.E.S. cadre (T.M.) in S.C. Bidyapitha, Nagpur in the scale of Rs. Accordingly, vide the letter dated 31.7.1993 (Annexure-3), the Inspector of Schools issued a letter; of appointment to the petitioner appointing him as an Assistance Teacher in L.S.E.S. cadre (T.M.) in S.C. Bidyapitha, Nagpur in the scale of Rs. 1080/--1800/- with other allowances as admissible under the Rehabilitation Assistance Scheme with effect from the date he joins the post. 3. With reference to the letters under Annexures-2 and 3 which are impugned in the writ application, learned Counsel for the petitioner submitted that since the petitioner at the time of his appointment under the Rehabilitation Assistance Scheme, completed the B.A.B.Ed. Degree, he should have been appointment as a Trained Graduate Teacher instead of being appointed as a Trained Matric Teacher. He further submitted that the petitioner having left with no other' alternative, joined in the post of Trained Matric Teacher in terms of the letter of appointment and since then has been making representations for the aforesaid purpose. The learned Counsel also placed reliance on the certificated said to have beer, issued by the Headmaster of the concerned school where the petitioner was appointed, to the effect that the petitioner though appointed in L.S.E.S. cadre under the Rehabilitation Assistance Scheme, has been teaching Oriya and English in different higher classes as an Arts Trained Graduate Teacher of the post of Jr.S.E.S. Teacher. Learned Counsel for the petitioner further submitted that during the pendency of the writ application the petitioner has been promoted to the post of Jr.S.E.S. Teacher and prays that this promotion to the post of Jr.S.E.S. Teacher be given effect to front the date of initial appointment of the petitioner and since he has discharged his duty as a Jr. S.E.S. Teacher, he may be released with the salary commensurate to such post. 4. The petitioner had moved Orissa Administrative Tribunal in O.A. No. 2539(C) of 1993 and the same came to be disposed of by an order dated 9.12.1998, wherein by placing reliance on an earlier judgment of the said Tribunal in the case of Basant Kumar Sahoo v. State of Orissa and Ors. 1997 (1) ATT (O.A.T.) 234 it has been held that, art individual having once got the benefit of the Rehabilitation Assistance Scheme cannot claim appointment to a higher post on the ground of possessing higher qualification. 1997 (1) ATT (O.A.T.) 234 it has been held that, art individual having once got the benefit of the Rehabilitation Assistance Scheme cannot claim appointment to a higher post on the ground of possessing higher qualification. The Tribunal further relied upon a decision of the Supreme Court in the case of Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, and in particular paragraph-8 of the said judgment wherein the object of Rehabilitation Assistance and the limit to which it can be stretched have been lucidly clarified by the Supreme Court and it has been pointed out that the appointment of the Rehabilitation Assistance Scheme is an exception and cannot interfere with the right of eligible persons. 5. Learned Counsel for the petitioner contended that the judgment in the case of Basant Kumar Sahoo (supra) ought not to have been applied to the case of the-petitioner since the petitioner possessed the necessary qualification on the date of ids appointment itself and in terms of the Rehabilitation Assistance Scheme (since repealed) since direct recruitment was permissible to the post of Jr.S.E.S. Teacher, there is no reason to deny the said benefit to the petitioner. 6. Learned Counsel for the State, on the other hand, contended that in terms of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990, under which the petitioner claims his appointment, an applicant would only be entitled to be appointed at the base/entry level. He further contended that the claim of the petitioner to be appointed in Jr. S.E.S. level is unfounded since those posts are promotional posts from the cadre of L.S.E.S. Teacher and no grievance of the petitioner ought to be entertained. 7. We have gone through the pleadings of the parties and the impugned judgment of the Tribunal. We are in respectful agreement with the view expressed by the Tribunal to the effect that a person having once got the benefit of the Rehabilitation Assistance Scheme cannot claim appointment to a higher post on the ground of possessing higher qualification. This mode of appointment through the rehabilitation is purely a beneficial legislation to provide livelihood to the family of the deceased/incapacitated Government Servant and cannot be extended to the persons who claim a post in Government service in terms of their superior academic qualification. This mode of appointment through the rehabilitation is purely a beneficial legislation to provide livelihood to the family of the deceased/incapacitated Government Servant and cannot be extended to the persons who claim a post in Government service in terms of their superior academic qualification. Therefore, offering appointment to the petitioner as a Matric Teacher (L.S.E.S. Cadre) was fully justified since the said post is a base/entry level post. 8. In the present case it is clear that the appointment offered to the petitioner under Annexure-3 was accepted by the petitioner unconditional. No appointment letter to the petitioner as a Trained Graduate Teacher could have been issued to the petitioner, had the petitioner not accepted the appointment offer. The petitioner having accepted the appointment under Annexure-3 was, therefore, appointed as an Asstt. Teacher under the L.S.E.S. Cadre (Trained Matric Teacher). No further claim of the petitioner is justifiable in law. 9. Accordingly, the writ petition is dismissed and the order passed by the Orissa Administrative Tribunal is affirmed. L. Mohapatra, J. I agree. Final Result : Dismissed