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2008 DIGILAW 926 (ORI)

SANKAR PRASAD KAR v. STATE OF ORISSA

2008-10-15

I.M.QUDDUSI, N.PRUSTY

body2008
JUDGMENT : I.M. Quddusi, J. - This writ petition has been filed against the impugned orders passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack on 29.9.97 in O.A. No. 3205(C) of 1997 and the orders passed by the Director of Secondary Education, Orissa, Bhubaneswar on 29.7.1998 vide Annexure-13 and that passed by the Commissioner-cum-Secretary to Government, Department of School & Mass Education on 7.12.1998 vide Annexure-15. 2. The brief facts of the case are that the Petitioner, Shankar Prasad Kar, was working as Headmaster in Lataharan High School since 1.7.1973 and, opposite party No. 4 Sarat Chandra Biswal was working as Headmaster in Binayak Deb High School, Naiguan. Both the institutions were aided and non-governmental institutions. By order dated 2.6.1994 the Petitioner was transferred by the Inspector of Schools, Puri Circle to Binayak Dev High School, Naiguan. The Petitioner challenged the said order of transfer before this Court by filing O.J.C. No. 4807 of 1994. During the pendency of the aforesaid OJC, the Inspector of Schools, Puri Circle, transferred the Petitioner to Kakatpur Girls' High School which he joined on 3.2.1995. While disposing of OJC No. 4807 of 1994 this Court directed opposite parties 2 and 3 therein to dispose of the representation of the Petitioner to regularize his services and pay the arrears. However, vide resolution dated 16th December, 1994 of the Government in School & Mass Education, Department published in Extraordinary gazettee dated 10th April, 1995, 49 Non-Government Aided High Schools of Puri Circle including Kakatpur Girls' High School was taken over by the Government with effect from 7.6.1994. As a result of that, the staff members of that institution was treated as Government servants from 7.6.1994. Thereafter by order dated 11.3.1997, the Petitioner was transferred to Lataharan High School and opposite party No. 4 was transferred to Kakatpur Girls' High School. But by order dated 26.3.1997 the said transfer order was kept in abeyance, Against the order keeping the order dated 26.3.1997 in abeyance opposite party No. 4 filed O.A. No. 1773 (C) of 1997 which was disposed of by the Tribunal on 24.5.1997 observing that the applicant can make a representation stating his grievance to the Director which shall be disposed of within one month from the date of receipt of the same. Thereafter, by order dated 10.9.1997 the Director withdrew the instruction issued to the Inspector of Schools, Puri by letter dated 26.3.1997 by which the order of transfer was kept in abeyance and and directed that the order dated 11.3.1997 should be implemented forthwith. Challenging the said order, the Petitioner preferred O.A. No. 3205 of 1997 before the Tribunal which disposed of the same on 29.9.1997 directing that the paper book be sent to the State Government to look into the matter and decide whether the order be implemented or modified. Pursuant to the said order, the State Government by letter dated 13.11.1997 intimated the Director that since Lataharan High School had not been taken over by Govt., transfer of opposite party No. 4 and the Petitioner from Lataharan High School to Kakatpur Girls' High School and vice-versa was not justified. Therefore, the State Government directed that transfer order made by the Director on 11.3.1997 and its implementation order dated 10.9.1997 was to be cancelled forthwith and opposite party No. 4 be allowed to continue in Kakatpur Girls High School as usual. Being aggrieved by the order dated 24.5.1997 passed by the Tribunal in O.A. No. 1773(C) of 1997 opposite party No. 4 filed O.J.C. No. 1623 of 1998 in this Court and by order dated 26.2.1998 this Court modified the impugned order to the extent that the Director in addition to calling for reports from the subordinate offices shall also consider the representation to be filed by opposite party No. 4 who was the Petitioner in O.J.C. No. 1623 of 1998 within a week from that day and till, disposal of the representation the writ Petitioner was directed to continue as Headmaster, Kakatpur Girls' High School provided he was holding that post on the date of order. By order dated 25.3.1998 the aforesaid order dated 26.2.1998 was corrected stating that the order under challenge was the order dated 29.9.1997 passed in O.A. No. 3205 of 1997 and instead of Director, Secondary Education, the Secretary, School and Mass Education was called upon to consider the representation of the writ Petitioner. Pursuant to the order dated 26.2.1998 passed in O.J.C. No. 1623 of 1998, opposite party No. 4 made a representation to the Director on 30.3.1998 which was disposed of by the Director, Secondary Education, Orissa on 29.7.1998. Pursuant to the order dated 26.2.1998 passed in O.J.C. No. 1623 of 1998, opposite party No. 4 made a representation to the Director on 30.3.1998 which was disposed of by the Director, Secondary Education, Orissa on 29.7.1998. In the said order the Director observed that opposite party No. 4 was working as Headmaster in Binayakdev High School, Naiguan and the Petitioner was working as Headmaster in Lataharan High School by the time they were transferred by the Inspector of Schools, Puri Circle, Puri on 15.7.1994. He observed that since both the schools were under private management receiving grant in aid from the Government, transfer of Headmaster from one aided school to another was not permissible and that too the Inspector of Schools was not competent to transfer a Headmaster from one school to another in respect of any type of school. Therefore, he held the transfer of opposite party No. 4 and that of the Petitioner ab initio illegal. He further held that on the date of take over, i.e. 7.6.1994, the Petitioner was working as the Headmaster of Lataharan High School which was not taken over by the Government whereas opposite party No. 4 was working in Binayakdev High School, Naiguan which was taken over by the Government. By the transfer made by the Inspector of Schools the Petitioner was transferred to Kakatpur Girls' High School whereas opposite party No. 4 was transferred to Lataharan High School where the Petitioner was continuing on the date of taken over. Therefore, the Director held that the continuance of the Petitioner at Kakatpur High School was not justified and therefore he should go back to his former school, Lataharan High School and opposite party No. 4 was allowed to continue in Kakatpur Girls High School. By order dated 19.8.1998 passed in Misc.Case No. 10366 of 1998 arising out of O.J.C. No. 1623 of 1998 filed by opposite party No. 4, this Court directed the Secretary, School and Mass Education, Orissa to consider the aforesaid order dated 29.7.1998 passed by the Director. Pursuant to the said order, the Commissioner-cum-Secretary to Government, School and Mass Education Department considered the order dated 29.7.1998 of the Director and held that the Director has rightly passed the order. Hence, this writ petition. 3. Pursuant to the said order, the Commissioner-cum-Secretary to Government, School and Mass Education Department considered the order dated 29.7.1998 of the Director and held that the Director has rightly passed the order. Hence, this writ petition. 3. The Petitioner was admittedly not posted at Kakatpur Girls' High School on 7.6.1994, the date from which the institution was taken over and it was Sarat Chandra Biswal, who was working in that school. The parent institution of the Petitioner is also not Kakatpur Girls' High School but he joined on the post of Head master pursuant to the order of Inspector of Schools on 3.2.1995. Opposite party No. 4 was continuing as Headmaster of Binayakdev High School on 7.6.1994 which was taken over by the Government. By the transfer effected by the Inspector of Schools he was deprived of the benefit of a Government servant. The transfer made by the Inspector of Schools has been held to be illegal by the Director as well as the Secretary to Government, School and Mass Education Department. 4. In view of the above, we think that the claim of the Petitioner to hold the post of Headmaster of Kakatpur Girls' High School and to be treated as Government servant is not sustainable after taking over of the institution with effect from 7.6.1994. The Petitioner joining the said institution on 3.2.95 cannot be said to be a,Government servant. Therefore, we find no illegality or impropriety in the impugned orders passed by the Director, Secondary Education as well as the Commissionercum-Secretary, Department of School and Mass Education. The writ petition is, therefore, dismissed. N. Prusty, J. 5. I agree. Final Result : Dismissed