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2008 DIGILAW 684 (ORI)

GURUPADA MOHANTY v. STATE OF ORISSA

2008-08-11

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : I. Mahanty, J. - In this writ application the Petitioner Shri Gurupada Mohanty has sought to challenge an order dated 23.2.2001 passed by the Orisisa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1909(C) of 2000 wherein the Petitioner had challenged to an order of nonapproval/non-regularization of his services vide office Order dated 13.6.2000 under Annexure-8 was turned down with the following observation: Hence, taking a sympathetic view and adopting a pragmatic approach, we would direct that the applicant be treated as a non-trained matriculate teacher and utilized against such a sanctioned post in that M.E. School or in some other M.E. School in the same Education District. He has crossed 48 years of age and has teaching experience of more than 20 years. Hence, this could be a case for granting exemption from training. But in view of the fact he had been teaching only Hindi, a conscious view about his getting the benefit of trained matriculate scale is to be taken after ascertaining the quality of his teaching. This may be decided after obtaining reports from the Headmaster and the D.I. concerned. The final decision be taken within three months from the date of receipt of a copy of this order. The period from 3.6.2000 till he is reinstated in the manner indicated above be treated as break in service and be condoned for the purpose of pension and fixation of pay. But he shall not be entitled to salary during this period since he had not performed any work. 2. Mr. Patnaik, learned Counsel for the Petitioner submitted that the Petitioner had been appointed as Hindi Teacher by the private management of Kumuda Jeypur M.E. School vide Managing Committee Resolution dated 25.9.1979. Before issuing the said appointment letter the Managing Committee had notified the vacancy to the Employment Exchange and had received names from the Employment Exchange, but to widen the scope of employment the Managing Committee had also published an advertisement and then ultimately held an interview on 7.9.1979. In the interview, 25 candidates appeared including the Petitioner 'and the Petitioner was ultimately selected. Pursuant to the said selection the Managing Committee on 8.9.1979 issued appointment letter to the Petitioner and the Petitioner joined in his post on 10.9.1'979. It appears that the Managing Committee of the school became defunct from 1980 and the District Inspector of Schools remained in-charge of the management. Pursuant to the said selection the Managing Committee on 8.9.1979 issued appointment letter to the Petitioner and the Petitioner joined in his post on 10.9.1'979. It appears that the Managing Committee of the school became defunct from 1980 and the District Inspector of Schools remained in-charge of the management. It further appears that the District Inspector of Schools vide his letter dated 31.3.1981 requested the Inspector of Schools for approval of the appointment of the Petitioner as a Hindi Teacher but the Inspector of Schools vide his letter dated 19.5.1981 replied that the appointment of the Petitioner cannot be approved since the appointment was irregular and has not been done in consultation with the Employment Exchange and the Management was directed to pay the salary of the teacher from out of their own funds and they were advised in the said letter to fill up the post through the Selection Board. Thereafter the Inspector of Schools wrote a letter to the Director of Public Instruction and sought for clarification as to whether the appointment of the Petitioner was covered by the Validation Act, 1981 (Orissa Act 27 of 1981). Since no reply was received from the Director of Public Instruction to such query of the Inspector of Schools, the Petitioner filed O.J.C. No. 880 of 1984 before this Court praying for direction to the appropriate authority to release his salary. 3. A division Bench of this Court consisting of Hon'ble Mr. Justice G.B. Pantnaik and Hon'ble Mr. Justice L. Rath, disposed the aforesaid writ application vide judgment-dated 13.8.1987. Considering the fact that the Petitioner was admittedly continuing as Hindi Teacher and it was not disputed by the opposite parties that the Petitioner had been appointed as a Hindi Teacher by the Managing Committee after conducting the test of several candidates and after selection of the Petitioner in the said test and in that view Petitioner had been issued with a letter of appointment. This. Hon'ble Court also took into consideration the Rule -5(8) of the Orissa Education (Recruitment and conditions of service of Teachers and members of the Staff of Aided Educational Institution) Rules, 1974 (in short referred to as the "Recruitment Rules"). The Managing Committee was empowered to make an appointment for a period of six months or till the date of receipt of the selection list from the Selection Board which ever is earlier. The Managing Committee was empowered to make an appointment for a period of six months or till the date of receipt of the selection list from the Selection Board which ever is earlier. But admittedly no prior approval of the Inspector of School as required by the said rule had been obtained. This Court also took note of the fact that it was not disputed by the parties that no Selection Board candidate had been sponsored to fill up the post in question. This Court further was unable to appreciate as to how even after the Inspector of Schools refused to accord approval of appointment of the Petitioner in the year 1981, while the District Inspector of Schools was then managing the affairs of the school who was continuing the Petitioner's services. Their Lordships came to hold that the only ground on which the Inspector of Schools refused to accord approval was that, the appointment of the Petitioner was not done in consultation with the Employment Exchange. This Court concluded that there was no provision in the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959) for an employer to consult the Employment Exchange in the matter of recruitment. What was required under law is that an employer before filling up any vacancy in that establishment must notify that vacancy to the Employment Exchange and this was the only obligation contemplated u/s 4 of the Employment Exchange Act, 1959. There was no requirement that appointment must be done with the consultation of the Employment Exchange. In the case at hand their Lordship came to hold that the Employment Exchange had in fact sponsored the names of some candidates who were recruited by the Managing Committee and therefore, their Lordships concluded that the refusal of the Inspector of Schools to accord approval on the aforesaid ground was held to be not tenable. Accordingly, since admittedly the Petitioner had been continuing in service, there was no justification to refuse his salary and accordingly, directions were issued to the Inspector of Schools who was in the management of the school to take immediate steps by preparing salary bill and submitting to the Inspector of Schools, who was directed to pay the salary to the Petitioner for the period for which the Petitioner had admittedly been continuing in service as Hindi Teacher with effect from 10.9.1979. Their Lordships also made it clear that the Inspector of Schools may take final action in the matter regarding approval of the Petitioner's service on receiving the clarification which was sought from the Director of Public Instruction( validity of 1981 Validation Act) in accordance with law. 4. Mr. Patnaik, learned Counsel appearing for the Petitioner submitted that after the order was passed by this Court as noted hereinabove, by letter dated 19.2.1988 the District Inspector of Schools wrote to the Inspector of Schools to approve the appointment of the Petitioner in order to enable him to draw his arrear salary( Annexure6/a). Pursuant to the aforesaid letter, the Inspector of Schools by letter dated 17.3.1988 duly approved the appointment of the Petitioner as Hindi Teacher of Kumuda Jeypure M.E. School for a period of 89 days with at least one day brake in between each term excluding the summer vacation and Puja holidays from 10.9.1979 till date (Annexure-6/b). As a consequence of the aforesaid approval of the Petitioner's service the Deputy Director in the office of Director, Secondary Education, Orissa by letter dated 10.5.1989 wrote to the District Inspector of Schools and stated that since there was no budgetary provision for payment of arrear salary to the Petitioner, steps would be taken for provision of funds during the supplementary budget. Further directions were issued regarding current salary from March, 1989 and it was directed that the same would be paid to him similarly along with other teachers serving under the Scheme for which allotment of funds are being placed at the disposal of the District Inspector of Schools, Cuttack. 5. Since the Petitioner was not paid his back wages and the order of regularization of his service was not effected, the Petitioner filed O.A. No. 2029(C) of 1993 before the Orissa Administrative Tribunal. The Tribunal taking into consideration the order of the High Court as noted hereinabove, since it was stated in the counter affidavit of the State that the question of regularization of service of the Petitioner as a government servant was still under consideration and was likely to be disposed of very shortly and further since the school had been taken over by the Government w.e.f. 1.4.1999 and the school had become a government institution from that date. The said original application was disposed of directing the State Government to take a decision on the issue of regularization within a period of three months from the date of receipt of the order and further directions were issued that since there was no dispute that the Petitioner was continuing in that school and discharging his duty, his period of service under the government, "the Petitioner be regularized and necessary consequential benefits like revision of pay, terminal increments with opening of Service Book within a period of three months from the date of receipt of this order." 6. It appears that as a consequence of the aforesaid direction the Commissioner-cum-Secretary to Government,School & Mass Education Department passed order dated 13.6.2000 (Annexure-8) rejecting the Petitioner's prayer for approval of his appointment and regularization and challenging this order of rejection of approval/regularization the Petitioner filed O.A. No. 1909 (C) of 2000 before the Orissa Administrative Tribunal. This original application came to be disposed of by the judgment dated 23.2.2001 (Annexure-1/b) as noted hereinabove and impugned herein. 7. Mr. Patnaik, learned Counsel appearing for the petitionr sought to challenge the grounds stated by the Commissioner-cumSecretary to Government, School and Mass Education Department in the order dated 22.6.200 refusing to accord approval of his appointment and regularization as well as the order of the Tribunal dated 23.2.2001 on the following grounds: a) That the case of the Petitioner is paramateria with the fact of the case decided by the Hon'ble Supreme Court in the case of Sri Rabinarayan Mohapartra Vs. State of Orissa and others, and that in terms of the said judgment the Petitioner who is also a Hindi Teacher in a M.E. School, exactly like Rabinaryan's case (supra) having been validly appointed was entitled to be regularized in terms of Section 3 of the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act( 1989). b) That the learned Tribunal erroneously quoted from the provisions of 1981 Validation Act instead of taking note of the fact that the Petitioner had in fact claimed regularization in terms of Section 3 of Validation Act, 1989. b) That the learned Tribunal erroneously quoted from the provisions of 1981 Validation Act instead of taking note of the fact that the Petitioner had in fact claimed regularization in terms of Section 3 of Validation Act, 1989. c) That the grounds stated by the Commissioner-cum-Secretary to Government, School and Mass Education Department in paragraphs2,3 and 5 of the order impugned under Annexurew-8 dated 13.6.2000 are on the face of it unlawful and untenable in view of the decision of the Hon'ble Supreme Court In the case of Shri Rabinarayan Mohapatra( supra) d) In so far as para-4 of Annexure-8 is concerned, with reference to the resolution of the State Government dated 1.4.1991 taking over management of the school, the learned Counsel for the Petitioner submitted that, the same is of no consequence since the Petitioner's appointment is saved by the 1989 Validation Act. Learned Counsel further submitted that since the Validation Act, 1989 is applicable to the Petitioner, his services ought to be regularized from the date of his appointment and therefore, by the time the school was taken over on 1.4.1991, the Petitioner must be deemed to be a validly appointed teacher and no objection on account of resolution of the State Government dated 1.4.1991 could be raised. e) On perusal of the impugned order of the Tribunal' under Annexure-1/b, we find that the Tribunal has taken note of the stand that Government in its counter has mentioned that the Validation Act is only applicable to the "aided institution" and to a "selected category" of teachers and does not cover the case of the Hindi Teacher. We find that reliance was placed by the Tribunal on the Government counter affidavit filed by the State Government on the basis of the 1981 Validation Act. The 1989 Validation Act laid down no such criteria as discussed in the order of the Tribunal. In fact, Section-3 of the 1989 Validation Act. 8. Learned Counsel appearing for the State on the other hand submitted that since the Petitioner' is an irregularly appointed teacher and did not possess the necessary qualification to be appointed as such the rejection of the approval/regularization of his service is fully justified. 9. In fact, Section-3 of the 1989 Validation Act. 8. Learned Counsel appearing for the State on the other hand submitted that since the Petitioner' is an irregularly appointed teacher and did not possess the necessary qualification to be appointed as such the rejection of the approval/regularization of his service is fully justified. 9. On a consideration of the aforesaid facts as noted hereinabove as well contentions as advanced by the learned Counsel for the rival parties, we think it appropriate to note here Section 3 of the Orissa Aided Education Institution (Appointment of Teachers Validation) Act, 1989 and in particular the relevant part of Section 3 of the Validation Act is as follows: 3. Validation of certain appointments- Not withstanding anything contained in the Education Act or in the Rules or Regulations framed thereunder (a) Graduate teachers, intermediate and matriculate teachers, physical education teachers and classical teachers and Hindi teachers of aided schools appointed by the managing authorities of such schools on ad hoc basis on or after the 1 st December, 1976 but not later than the 31st Dec.,1984: (b) & (c)...... who have continuous service as such teachers or lecturers for a period of at least one year without any break or with a break or breaks in one or more aided schools or Colleges and who are continuing as such teachers or whose service have been terminated after 31st December, 1984 save for misconduct, or shall for all intents and purposes, be deemed to have been validly and regularly appointed, and no such appointment shall be challenged in any Court of law merely on the ground that the appointment was made otherwise than in accordance with procedure laid down in the Education Act and the Rules and Regulations framed thereunder. On a perusal of the aforesaid provision of the 1989 Validation Act, it would be clear that 1989 Validation Act is applicable to the aided institution and also includes various other category of teacher, including "Hindi Teacher" and therefore, the noting by the Tribunal that Validation Act does not cover Hindi Teacher is an apparent error of record. 10. In the case of Rabinarayan Mohapatra (supra) the Hon'ble Supreme Court, noted that the Petitioner therein was appointed as a Hindi Teacher in Banigochha M.E. School (Orissa) for a period of 89 days or till a candidate selected by the State Selection Board was made available. 10. In the case of Rabinarayan Mohapatra (supra) the Hon'ble Supreme Court, noted that the Petitioner therein was appointed as a Hindi Teacher in Banigochha M.E. School (Orissa) for a period of 89 days or till a candidate selected by the State Selection Board was made available. He joined in the school July 12, 1982 and claims regularization as Hindi Teacher from the said date. Hon'ble Supreme Court laid down in the said judgment that in order to come within the purview of the Validation Act following conditions are to be satisfied: 1. The appointment by managing authority of the school on ad hoc basis must be on or after the 1 st December, 1976 but not later than 31st December, 1984. 2. The service as such teacher is continuous for a period of at least one year without any break or with a break or breaks in one or more aided schools. 3. Is continuing as such teacher or his services were terminated after the 31 st December 1984 save for misconduct. 11. We find that as noted hereinabove, the Petitioner had been appointed by an order of the Managing Committee of the school dated 8.9.1979 and his appointment had been made after inviting application from the Employment Exchange as well as through a public advertisement inviting applications. We further find that 25 candidates had appeared the interview along with the Petitioner and the Petitioner had been found to be the first candidate and accordingly appointment letter was issued to him. In OJC No. 880 of 1984 this Court has already held that the refusal of the Inspector of Schools to accord approval of the appointment of the Petitioner, since it had not been done with the consultation of the Employment Exchange has been held to be not tenable in law. Therefore, no objection can be taken to the appointment of the Petitioner. We further find from Annexure-6/a dated 19.2.1988 that the Inspector of Schools has approved the appointment of the Petitioner and it is in term of such approval that the Petitioner was released with his current salary w.e.f. 10.9.79. Therefore, no objection can be taken to the appointment of the Petitioner. We further find from Annexure-6/a dated 19.2.1988 that the Inspector of Schools has approved the appointment of the Petitioner and it is in term of such approval that the Petitioner was released with his current salary w.e.f. 10.9.79. We further find that the Inspector of Schools issued a letter dated 17.3.1988 under Annexure-6/b holding that the appointment of the Petitioner as Hindi Teacher of Kumuda Jeypure M.E. School was approved for periodical terms of 89 days with at least one day gap in between each term excluding summer vacation and puja holidays from 10.9.1979 till date. The judgment of the High Court referred hereunder as well as letter of the Inspector of Schools confirms the fact that the Petitioner had been appointed on 10.9.1979 and this issue is no more in dispute and it can be safely concluded that the Petitioner satisfies the 1 st condition of 1989 Validation Act, since his appointment was made on or after 1st December, 1976 but not latter than 31 st Decmber, 1984. 12. It is the case of the Petitioner that he had worked continuously from the date of his appointment, i.e., 10.9.1979 and continued till the date of refusal order of approval of his appointment dated 13.6.2000 under Annexure-8. Therefore, it is clearly proved that the Petitioner has rendered service for more than twenty one years prior to the non-approval order and therefore he also satisfies the second requirement of 1989 Validation Act. To the effect, he had rendered continuous service as a teacher without any break. Similarly the aforesaid fact also clearly establishes, that the Petitioner was continuing as a teacher and his service was only terminated w.e.f. 13.6.2000, i.e., after 31 st December, 1984 as stipulated in 1989 Validation Act. 13. In view of the conclusion arrived by us noted hereinabove, we are of the view that Petitioner satisfies all the "three conditions" required for applying the 1989 Validation Act as stipulated by the Hon'ble Supreme Court in the case of Rabinarayan Mohapatra (supra). 13. In view of the conclusion arrived by us noted hereinabove, we are of the view that Petitioner satisfies all the "three conditions" required for applying the 1989 Validation Act as stipulated by the Hon'ble Supreme Court in the case of Rabinarayan Mohapatra (supra). At this pint it becomes necessary also to take note of the judgment of the Apex Court regarding the aim and objects of the Validation Act in para-6, which is quoted here: The Validation Act has been enacted by the Orissa legislature with the obvious object of granting relief to those members of teaching community who are being exploited for years together by keeping them in short spell appointments like 89 days appointments as here with one days break and in the process denying them their rightful dues and other service benefits. In spite of repeated deprecations by this Court the practice continues to be followed by various State Governments in the country. Under the Constitution the State is committed to secure right to education for all citizens. Bulk of our population is yet illiterate. Till the time illiteracy is effaced from the country the resolution enshrined in the Preamble cannot be fulfilled. Education is the dire need of the country. There are neither enough schools nor teachers to teach. Insecurity is writ large on the face of the teaching community because of nebulous and unsatisfactory conditions of service. In order to make the existing educational set-up effective and efficient it is necessary to do away with adhocism in teaching appointments. An appointment on 89 days-basis with one day break which deprives a teacher of his salary for the period, of summer vacation and other service benefits is wholly arbitrary and suffers from the vice of discrimination. The Validation Act covers the field up to December, 31, 1984. The State of Orissa will do well to consider the case of all those who have completed one year or more as ad hoc teachers after December, 31, 1984 and come out with a scheme or any other appropriate measure to regularize their services. 14. The Validation Act covers the field up to December, 31, 1984. The State of Orissa will do well to consider the case of all those who have completed one year or more as ad hoc teachers after December, 31, 1984 and come out with a scheme or any other appropriate measure to regularize their services. 14. In view of the aforesaid findings and conclusion, we set aside the order dated 13.6.2000 (Annexure-8) of the Commissioner-cumSecretary to Government, School and Mass Education Department, refusing to accord approval of the Petitioner's appointment and regularization in service and consequently quash the order of the Tribunal dated 23.2.2001 passed in O.A. No. 1909(C) of 2000 and direct to treat the Petitioner as a regular Hindi Teacher in the school in question with effect from 10.9.1979. The Petitioner shall be entitled to his salary including his salary for summer vacation and other breaks which be taken as non est; from the date of his regular appointment i.e., 10.9.1979. The opposite parties are directed to pay the arrears of salary and other emoluments due to the Petitioner as a result of his regularization within a period of three months from today. The writ application is allowed. L. Mohapatra, J. 15. I agree. Final Result : Allowed