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2010 DIGILAW 87 (ORI)

Prahallad Panda v. State of Orissa

2010-02-16

A.S.NAIDU, B.N.MAHAPATRA

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JUDGMENT A.S. NAIDU, J. : The petitioner seeks to assail the judgment passed by the State Educational Tribunal, Orissa dated 4th November, 1997 in Appeal No. 3 of 1997 (Annexure-6), in this writ petition. 2. The petitioner was initially appointed by the Managing Committee of Swapneswar High School, Odiso in the district of Jajpur as Section Teacher on 10.11.1982. In the year 1988 a post of Assistant Teacher fell vacant due to resignation of one of the Teachers. Consequently, the petitioner was adjusted against the said regular post, which was within the standard staffing pattern of the school. The decision of the Managing Committee dated 26.6.1988 adjusting the petitioner in the said post was communi¬cated on 11.7.1988 to the Director, Secondary Education. While in service, the petitioner completed his B.Ed. training in the year 1990. In the year 1991 the Managing Committee of the School was reconstituted and number of disputes cropped up assailing the reconstitution before this Court, i.e., OJC No. 91 of 1991 and other writ applications. The petitioner, it is submitted, unfor¬tunately became the victim of the inter se fight between the two powerful groups and was prevented from discharging his duties. Being aggrieved by the said action, the petitioner filed an appeal before the Director, Secondary Education and as the appeal was not disposed of in time, he approached this Court in OJC No. 7550 of 1994 inter alia praying to direct the Director, Secondary Education to decide the appeal preferred by the petitioner as¬sailing the inaction of the Managing Committee. The said writ application was disposed of on 19th December, 1994 directing the appellate authority, i.e., Director, Secondary Education, to dispose of the appeal filed by the petitioner within a period of three months. 3. After hearing the parties and after perusing all the documents, the Director, Secondary Education disposed of the appeal and held that the petitioner was working in the school both as an untrained Science Graduate as well as Trained Science (CBZ) graduate prior to the time when the school came within the fold of grant-in-aid. Consequently, the appeal was allowed and the order of termination was set aside and the petitioner was direction to be reinstated prospectively in service without any arrear financial benefits. In pursuance of the order passed by the Director, the petitioner joined in his post on 24.1.1997. Consequently, the appeal was allowed and the order of termination was set aside and the petitioner was direction to be reinstated prospectively in service without any arrear financial benefits. In pursuance of the order passed by the Director, the petitioner joined in his post on 24.1.1997. His joining report was duly accepted and the services of the peti¬tioner were approved by the Inspector of Schools by his letter dated 1.2.1997 (Annexure-4). 4. While the matter stood thus, the petitioner came to know that the order passed by the Director was assailed before the State Education Tribunal by opposite party no.6 in Appeal No. 3 of 1997 and the Tribunal was pleased to stay operation of the order of the Director. On coming to know about the said fact, the petitioner appeared before the Tribunal and raised a preliminary objection, with regard to maintainability of the said case. The Tribunal, however, without deciding the question of maintainabil¬ity, disposed of the appeal and remitted the dispute to the Director, Secondary Education for de novo disposal after giving reasonable opportunity to opposite party no.6 (who was appellant before the Tribunal) to put-forth his grievances. The said order, as stated earlier, is assailed before this Court mainly on the ground that the appeal filed by opposite party no.6 under Section 10-A of the Orissa Education Act, 1969 was not maintainable and as such, the Tribunal acted illegally and with material irregu¬larity in entertaining and disposing of the same on merits by remitting the dispute to the Director, Secondary Education for de novo disposal. 5. After receiving notice, opposite party no.6 has entered appearance. In course of hearing, Mr. A.K. Mishra, learned Sr. Advocate appearing for opposite party no.6, forcefully submitted that the appeal filed by opposite party no.6 was maintainable under Section 10-A of the Orissa Education Act, hereinafter to be referred to as “the Act”. According to Mr. Mishra, opposite party no.6 was appointed as a teacher in the School, he was discharging his duties but then without impleading him, the petitioner had preferred the appeal before the Director, Secondary Education and the Director without realizing the correct facts, allowed the ap¬peal, consequently, the services of opposite party no.6 were terminated. Mr. According to Mr. Mishra, opposite party no.6 was appointed as a teacher in the School, he was discharging his duties but then without impleading him, the petitioner had preferred the appeal before the Director, Secondary Education and the Director without realizing the correct facts, allowed the ap¬peal, consequently, the services of opposite party no.6 were terminated. Mr. Mishra further submits that as the services of opposite party no.6 were terminated without obtaining prior approval of the Inspector of Schools, the same was not just and proper and the controversy as to whether such termination is valid or not can be adjudicated under Section 10-A of the Act. For the sake of brevity. Section 10-A of the Act is quoted herein-below. “Section 10-A-Service of teachers of aided institutions not to be terminated without approval: (1) The services of a teacher (and other members of the Staff) of an aided Educational Institution shall not be terminat¬ed without obtaining the prior approval in writing of the (a) (Director) in the case of teacher (and other members of the Staff) of a College. (b) Circle Inspector of Schools having jurisdiction, in the case of a teacher (and other members of the Staff) or a School. (2) Every order passed by the (Director) or Circle Inspector as the case may be, either according approval of refusing to accord approval under sub-section (1) shall be communicated to the parties concerned within three months of the reference. (3) Any person aggrieved by an order passed under sub-section (1) may prefer an appeal to the Tribunal within one month from the date of receipt of the order.” 6. Heard learned counsel for the petitioner and learned counsel for opposite party no.6 and learned counsel for the State diligently. Perused the documents annexed to the pleadings metic¬ulously. 7. Fact remains, Swapneswar High School was established in the year 1982 and the same acquired the status of an aided educa¬tional institution in the year 1994. The services of the peti¬tioner were terminated in the year 1992, i.e., prior to the date when the school became aided. It is well settled that not permit¬ting any employee to discharge his duties in a school amounts to deemed termination of service. In consonance with the circular of the State Government, such employee has a right to prefer an appeal before the Director. It is well settled that not permit¬ting any employee to discharge his duties in a school amounts to deemed termination of service. In consonance with the circular of the State Government, such employee has a right to prefer an appeal before the Director. That apart, this Court in the earlier writ application also called upon the Director to dispose of the appeal on merits. On the date when the appeal was filed, opposite party no.6 was not in the picture. That apart, the petitioner had no cause of action against opposite party no.6. The appeal as stated earlier was allowed and the petitioner was reinstated in his previous service, consequently, opposite party no.6, who was appointed against the said post had to quit. 8. So far as opposite party no.6 is concerned, according to Mr. Mishra, his services were terminated without obtaining prior permission of the Inspector, and as such, he had a right to file an appeal before the Tribunal. The said submission cannot be accepted on two grounds. 9. Firstly, in the year 1997 when the opposite party no.6 filed O.E. Appeal No. 3 of 1997, he was not terminated from service. For better understanding, the prayer made in the memo¬randum of appeal is quoted herein-below: “Under the facts and circumstances the appellant most humbly prays that the Hon’ble Tribunal may be pleased to call for the records from the O/o. the O.P.No.1 and also call upon the O.P. to submit their show cause reply and after hearing the counsel for the parties be pleased to direct the O.Ps.not to terminate the services of the appellant and further be pleased to direct the O.Ps. more particularly O.P. Nos. 1,2,3 and 5 not to allow O.P. No.4 to join in the post of Science Teacher (CBZ).” Thus, the opposite party no.6 candidly admits that on the date when he filed the appeal, he was not terminated. Therefore, the appeal filed under Section 10-A of the Act being pre-matured was not maintainable. 10. Even otherwise, according to Section 10-A, no employee can be terminated without obtaining prior permission of the Inspector of Schools. The said clause will not be ipso facto applicable to the case in hand inasmuch as it appears, the oppo¬site party no.6 was appointed in the vacancy, which was created due to termination of the petitioner. 10. Even otherwise, according to Section 10-A, no employee can be terminated without obtaining prior permission of the Inspector of Schools. The said clause will not be ipso facto applicable to the case in hand inasmuch as it appears, the oppo¬site party no.6 was appointed in the vacancy, which was created due to termination of the petitioner. The order of termination of the petitioner was assailed by him before the Director, Secondary Education. The said appeal was allowed and the Director called upon the management to reinstate him. Consequently, opposite party no.6, who was holding the post has to give the way and rightly his services were terminated. Such termination will not attract the provisions of Section 10-A. 11. Be that as it may, fact remains, the petitioner is continuing in service right from 1997 whereas opposite party no.6 is out of service from the said date. The appointment of the petitioner has been approved by the authorities and he is enjoy¬ing all the benefits. 12. In view of the aforesaid facts and circumstances, we find that the learned Education Tribunal acted illegally and with material irregularity in entertaining the appeal filed by oppo¬site party no.6 against a threatened termination. In fact, the said appeal was a pre-mature one and the Tribunal acted illegally in disposing of the appeal on merits. Consequently, the order passed by the Tribunal vide Annexure-6 cannot be sustained and is set aside. The writ application is allowed. 13. However, before parting with the case, we feel that ends of justice and equity will be better served, if we direct the Inspector of Schools to consider if opposite party no.6 can be accommodated in some other schools against any available vacancy. B.N. MAHAPATRA, J. I agree. Application allowed.