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2008 DIGILAW 681 (ORI)

STATE OF ORISSA v. SAKUNTALA BISWAL

2008-08-08

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - This writ application is directed against the Judgment and order dated 11.6.2002 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack allowing the Original Application No. 2538 (C) of 2000 filed by the opposite party. 2. The case of the opposite party before the Tribunal is that she was working as an Additional Section Teacher in Sarakantara U.P. (M.E.) School in the district of Khurda. The school was previously an aided educational Institution and later on it was taken over by the Government on 1.4.1991. The opposite party was appointed as Sectional Teacher by the erstwhile Managing Committee of the said school on 2.2.1991 and joined in the post on the very same day. After her appointment, the D.I. of Schools recommended her case to the Director of Elementary Education for approval. When the question of approval was pending before the Director of Elementary Education, a decision was taken by the State Government to adjust 101 additional section teachers in the existing vacancies of various. U.P. (M.E.) schools and accordingly, the Deputy Secretary to the Government issued a letter on 3.7.1996 to the Director of Elementary Education to instruct the D.I. of Schools to approve the appointment of 101 additional section teachers on conditions that: (i) the incumbent must have been eligible on the basis of prescribed qualification to hold the post; (ii) they are appointed following the prescribed procedure; (iii) the post of additional section teacher was justified on the basis of the yardstick and roll strength. In the list of 101 candidates, the name of the opposite party found place. The D.I. of Schools thereafter verified the matter and recommended the names of 14 teachers including the opposite party and such recommendation was sent to the Director of Elementary Education on 9.6.1997. The opposite party having not received her salary approached the Orissa Administrative Tribunal in O.A. No. 308(C) of 2000 and the said original application was disposed of on 9.2.2000 directing the present Petitioners to fix the pay of the opposite party and also directed for payment of arrear salary within a specified time. It was also directed that the Petitioners should pay the differential salary and arrear from the date the school was taken over within the said time. It was also directed that the Petitioners should pay the differential salary and arrear from the date the school was taken over within the said time. After disposal of the said original application, the appointment of opposite party was held to be illegal and her claim was rejected on 6.7.2000 in Annexure-6 and again on 31.7.2000 in Annexure-7 to the original application and challenging those two orders, the opposite party approached the Tribunal. It was the stand of the present Petitioners before the Tribunal that the case of the opposite party is covered by the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Education Institutions) Rules, 1974 and the Tribunal has no jurisdiction to entertain the case. It was also contended before the Tribunal that as the appointment of the opposite party was made without valid resolution of the then Managing Committee and the appointment letter was issued by the Secretary and such appointment not being legal, her claim could not be considered. The Tribunal did not accept the contention raised by the Petitioners in the counter affidavit and relying on the recommendation of the D.I. of Schools, allowed the application. 3. The learned Counsel for the State representing the Petitioners assails the impugned Judgment on the ground that the opposite party had not been validly appointed by resolution of the then Managing Committee and, therefore, her claim for approval as well as payment of salary had been turned down by the competent authority. According to the learned Counsel for the State, any appointment made by the Managing Committee has to be with prior approval of the competent authority after creation of the posts and therefore, in absence of any document to show that such post was created, the appointment of opposite party was illegal. The learned Counsel appearing for the opposite party relying on a decision of this Court which has also been referred to by the Tribunal submitted that once a post is admissible, creation of the same is a mere formality and any appointment made to such admissible post cannot be held to be illegal. The learned Counsel appearing for the opposite party relying on a decision of this Court which has also been referred to by the Tribunal submitted that once a post is admissible, creation of the same is a mere formality and any appointment made to such admissible post cannot be held to be illegal. It was also contended by the learned Counsel appearing for the opposite party that the opposite party having been appointed by the then Managing Committee of the School, her claim for approval and payment of arrear salary could not have been turned down by the competent authority and therefore, the Tribunal was justified in allowing the original application. 4. It is true that in the case of Nabin Kumar Beura v. State of Orissa and Ors. reported in 2001 (8) SLR 501, this Court held that if the yardstick provides for a post and such post is admissible considering the roll strength and that the Managing Committee of the School appointed a teacher and sought for approval of such appointment, creation of the post is a mere formality and the proposal submitted by the Managing Committee cannot be turned down only on the ground that the post had not been created. There is no quarrel over the aforesaid law laid down by this Court not only in the above reported case but also in other cases. The sole question is as to whether the opposite party had been validly appointed or not. Annexure-1 to the writ application is the decision of the State Government dated 3rd July, 1996 communicated to the Director of Elementary Education. In said Annexure, the Director of Elementary Education was informed that the State Government have been pleased to adjust 101 additional section teachers of taken over U.P. (M.E.) Schools in the existing vacancies as those posts were justified as per the yardstick. The name of the opposite party found place in the list of 101 candidates. Annexure-1 further stipulated that the names appearing in the list of 101 candidates be verified for approval and their approval shall depend on fulfilling the following requirements: (i) The incumbent must have been eligible on the basis of prescribed qualification to hold the post. (ii) They are appointed following the prescribed procedure. (iii) The post of additional selection teacher was justified on the basis of the yardstick and roll strength. (ii) They are appointed following the prescribed procedure. (iii) The post of additional selection teacher was justified on the basis of the yardstick and roll strength. The learned Counsel for the State has fairly conceded that so far as requirement Nos. (i) and (iii) are concerned, the opposite party fulfills such requirement but her appointment had not been done following the procedure and, therefore, the D.I. of Schools could not have recommended her name for approval in the list of fourteen candidates. In this connection, we verified the appointment letter of the opposite party. Annexure-8 is the appointment letter of the Secretary of the School which is quoted below: OFFICE OF THE SECRETARY: SARAKANTRA M.E. SCHOOL OFFICE ORDER No. 622 Dated 2nd February, 1991 Sri/Smt. Sankuntala Biswal, at Naraharipur P.O. Aripada Via. Kendrapada, Dist. Cuttack is hereby appointed as Sectional Assistant Teacher, Sarakantara M.E. School in the scale of pay Rs. 840/- Plus D.A. Rs. 286/- in total Rs. 1126/- per month with usual D.A. allowed by Central Government from time to time. He/She is requested to join her post immediately. No T.A. will be allowed for his joining the post. SECRETARY Sarakantara M.E. School Memo No. 623 dt.2.2.1991 Copy to Sakuntala Biswal, At-Naraharipur, Po. Aripada, Via. Kendrapara, Dist. Cuttack for information and necessary action. She should join within 7 days from the date of issue of this order, failing which the appointment will be automatically cancelled. No salary should be claimed until Govt. Approval. Sd/- Secretary Sarakantara M.E. School Memo No. dt. Copy to District Inspector of Schools, Bhubaneswar for information and necessary action. Sd/- Secretary. 5. As is evident from the said appointment letter there is no mention about any resolution passed by the then Managing Committee selecting the opposite party for appointment to the said post. It is true that the Secretary of the school can issue the letter of appointment pursuant to resolution passed by the Managing Committee. In absence of resolution of the Managing Committee, selecting a candidate, the Secretary on his own cannot make any appointment in the School. No record has been produced before us to show that the Managing Committee of the School had issued any advertisement calling for applications for appointment to the said post or that a selection process was undertaken or that a resolution was passed selecting the opposite party for appointment to the said post. No record has been produced before us to show that the Managing Committee of the School had issued any advertisement calling for applications for appointment to the said post or that a selection process was undertaken or that a resolution was passed selecting the opposite party for appointment to the said post. In absence of any such document, it is not possible to accept the contention of the learned Counsel appearing for the opposite party that she was validly selected by the Managing Committee for appointment to the said post. Though much reliance was placed by the learned Counsel for the opposite party on the recommendation of the D.I. of Schools and a contention was advanced that the D.I. of Schools could not have recommended the name of the opposite party without verification of the records, there being no document before us or before the Tribunal to show that the then Managing Committee of the School had followed the procedure for selection of sectional teachers and that resolution was passed by the Managing Committee selecting the opposite party for the said post, one of the conditions stipulated in Annexure-1 is not fulfilled. Therefore, the appointment of the opposite party could not have been approved without verification of such records. 6. In view of the reasons stated above, we allow the writ application and set aside the impugned Judgment. It will be open for the State authorities to verify the records of the school and find out as to whether the appointment of the opposite party had been done by the then Managing Committee of the School in accordance with the law or not. If such appointment had been made by the then Managing Committee of the School in accordance with law, the case of the opposite party should be considered for approval. I. Mahanty, J. 7. I agree. Final Result : Allowed