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2011 DIGILAW 408 (ORI)

Ashok Kumar Sahu v. State of Orissa

2011-08-08

CHAIRMAN, N.PRUSTY

body2011
ORDER JUSTICE N. PRUSTY, CHAIRMAN. — The applicant, who is said to be working as Hindi Teacher in Barbhata M.E. School, Barbhata in the district of Kalahandi, had filed this O.A. in September 1994, with a prayer to quash the order dated 23.2.1994 (Annexure-4), whereby the Director, Elementary Education, Orissa/respondent No.2 in pursuance of the order of this Tribunal dated 12.1.1994 passed in O.A. No.2455(c)/1993 (Annexure-4) considered the grievances of the applicant and rejected the claim of the applicant for approval of his appointment as Hindi Teacher with effect from 6.11.1989 in Barbhata M.E. School, Barbhata, so also his subsequent adjustment as 3rd teacher in a Govt. M.E. School. It has also been prayed for a direction to the respondents to approve the appointment of the applicant with effect from 6.11.1989 and adjust him as against the third post of Assistant Teacher, so also to pay salary including arrears unpaid since 6.11.1989. 2.Heard Mr. K.K. Swain, learned counsel for the applicant and Mr. B.P. Tripathy, learned Standing Counsel, SME. 3.Mr. Swain, learned counsel for the applicant submitted that the applicant was engaged as a Temporary Hindi teacher by the Secretary of Barbhata M.E. School vide order dated 4.11.1989 as per the Resolution No.4 of the meeting No.108/8 dated 4.11.1989 (Annexure-1). Even though the applicant is to submit his joining report before the Headmaster of the school, he submitted his joining report on 6.11.1989 before the District Inspector of Schools, Bhawanipatna through the Headmaster, Barbhata M.E. School. The school in which the applicant was working was taken over by the Government as per the Govt. Resolution of the year 1992 i.e. dated 12.5.1992 with effect from 1.4.1991. The Managing Committee of the school had already recommended the case of the applicant for approval and on receipt of the recommendation of the Managing Committee the District Inspector of Schools, Kalahandi Education District/respondent No.4 had also moved the Director, Elementary Education for approval of the appointment of the applicant vide his letter dated 27.12.1989. The Managing Committee of the school had already recommended the case of the applicant for approval and on receipt of the recommendation of the Managing Committee the District Inspector of Schools, Kalahandi Education District/respondent No.4 had also moved the Director, Elementary Education for approval of the appointment of the applicant vide his letter dated 27.12.1989. Since the applicant does not have copy of these documents i.e. letter of the Managing Committee to the District Inspector of Schools to the Director, Elementary Education, he could not file those documents along with this O.A. However, since the applicant’s appointment was not approved, he is not getting his monthly salary from the very date of his appointment under the direct payment scheme even though he is discharging his duties as a teacher in the school, even after the school was taken over by the Government. On the basis of circular issued by the Govt. dated 17.3.1992, the Director of Secondary Education vide letter dated 1.5.1992 (Annexure-3) communicated to all the Inspectors of Schools and District Inspectors of Schools, inter alia intimating therein that Hindi being a non-examinable subject in M.E. School there is no need to allow the existing Hindi teachers in M.E. Schools to continue further. Therefore, Hindi teachers who are continuing in M.E. Schools will be adjusted against the 3rd post of teachers in M.E. Schools provided they possess Matric, C.T. qualification. In case any Hindi Teacher does no possess C.T. qualification, he will be given a chance to acquire C.T. qualification within three years from the date of issue of order. However, if any Hindi Teacher is non-Matric, then he will be given a chance to acquire both Matric and C.T. qualification within 5 years. Learned counsel also submitted that since the applicant’s appointment was not approved by the competent authority and he was not adjusted as a 3rd teacher in the same school or in any other M.E. School, the applicant had approached the respondent authorities to adjust him as a 3rd teacher. Since the respondents did not take any action for approval of the appointment of the applicant, so also his adjustment as a 3rd teacher in any M.E. School, the applicant had approached this Tribunal in O.A. 2455(c)/1993 claiming such relief. Since the respondents did not take any action for approval of the appointment of the applicant, so also his adjustment as a 3rd teacher in any M.E. School, the applicant had approached this Tribunal in O.A. 2455(c)/1993 claiming such relief. The said O.A. was disposed of vide order dated 12.1.1994 with a direction to the respondents to treat the O.A. as representation of the applicant and dispose of the same in the light of the Government circular under Annexure-3. However, considering the representation of the applicant respondent No.2/Director Elementary Education rejected the said representation of the applicant on the ground that the applicant was appointed by the Managing Committee as against a non-sanctioned post of Hindi teacher under plan or non-plan scheme nor as per the Rule 5(8) of the Orissa Education (Recruitment, etc.) Rules, 1974, so also beyond the prescribed yardstick in the school. Since the representation of the applicant was rejected as above, hence this O.A. Learned counsel further submitted that since the services of the similarly placed Hindi teachers, like the applicant, who were continuing in other M.E. schools as against sanctioned posts with due permission of the concerned authorities, have already been approved, the impugned order of the Director, Elementary Education dated 21.2.1994 (Annexure-4) in rejecting the claim of the applicant for his adjustment as 3rd teacher as against a sanctioned post on the ground that he was appointed against a non-sanctioned post and without permission of the competent authority is bad in law and as such is violative of Art. 14 and 16 of the Constitution and hence is liable to be set aside. 4.Mr. B.P. Tripathy, learned standing counsel, SME, on instruction, submits that the claim of the applicant as has been made in this O.A. for his regularization/adjustment as a 3rd teacher in a Govt. M.E. School, on the ground that he was appointed as a Hindi teacher in a M.E. School, cannot be entertained, since the post of Hindi teacher has been declared as a dying cadre vide G.O. No.13409/E dated 17.3.92 read with Director, Secondary Education, Orissa circular dated 1.5.1992 because of the fact that Hindi is not an examinable subject in U.P./M.E. Schools. So far as the adjustment of the Hindi Teacher as 3rd Teacher is concerned, as per the letter dated 1.5.1992 (Annexure-3) it is only applicable to the Hindi Teachers, who are appointed as against a sanctioned posts and following due process of selection in conformity with the procedure laid down for the purpose. In the instant case the applicant was appointed as a Temporary Hindi Teacher against a non-sanctioned post vide order dated 4.11.1989 (Annexure-1) of the Secretary of the School as per the Resolution of the meeting dated 4.11.1989. Since the school was an aided educational institution on the date the applicant was engaged as a Hindi Teacher in the school and the post was not sanctioned nor any permission has been granted by the competent authority i.e. concerned District Inspector of Schools/respondent No.3 to fill up that post and no regular selection process was conducted by the management of the school, inviting application from eligible candidates by issuing an advertisement in a widely circulated local newspaper and calling for the names from the local Employment Exchange, the Secretary of the school had no authority to appoint the applicant as against such non-sanctioned post. Since due procedure has not been followed by the Secretary of the School while appointing the applicant as a Hindi Teacher without availability of a sanctioned post and permission of the competent authority for such appointment, it is the responsibility of the Managing Committee of the school to pay salary and other dues of the applicant, if any. As such since the Government had no minimum role in the appointment of the applicant as stated above, such burden cannot be thrusted upon the Government. In case it would have been a case of appointment of the applicant as Hindi teacher as against a sanctioned post with prior permission of the competent authority i.e. concerned District Inspector of Schools, then only the Government had the responsibility to adjust the applicant as against any available vacancy of a teacher or a Hindi Teacher. In some of the cases in support of their contention learned counsel for the applicants relied upon the G.O. No.31360/SME dated 29.9.1995 in which it was instructed to adjust the Hindi Teachers as Assistant Teachers in UP/ME Schools, but that circular has already been withdrawn vide G.O. No.26756/SME dated 5.9.1998. In some of the cases in support of their contention learned counsel for the applicants relied upon the G.O. No.31360/SME dated 29.9.1995 in which it was instructed to adjust the Hindi Teachers as Assistant Teachers in UP/ME Schools, but that circular has already been withdrawn vide G.O. No.26756/SME dated 5.9.1998. As such the benefit of G.O. No.31360/SME dated 29.9.1995 cannot, also, be extended in favour of the applicant. Learned Standing Counsel further submits that the applicant was said to have been appointed and joined the post on 6.11.1989. On receipt of the proposal/recommendation of the Managing Committee the District Inspector of Schools is said to have recommended the matter to the Director, Elementary Education for approval of his post. Since his post was not approved, the applicant had approached this Tribunal in O.A. No.2455(c)/1993 which was disposed of by this Tribunal vide order dated 12.1.1994 with a direction to the respondents to consider the case of the applicant treating the paper book as his representation. As such since the applicant was appointed in 1989 and his case is said to have been recommended by the District Inspector of Schools in the same year in the month of November i.e. 1989 and the applicant had approached this Tribunal in later part of 1993 in O.A. No.2455(c)/1993- as such 4 years after the cause of action and 3 years after the school was taken over, but had not approached any available forum in between 1989 till 1991 or 1992. As provided under the statute an applicant is to approach the Tribunal within one year from the cause of action. As such the first O.A. filed by the applicant before this Tribunal was hopelessly barred by limitation. The Hon’ble Supreme Court in the case of C.Jacob versus-Director of Geology and Mining reported in (2008) 2 SCC (L&S) 961 : (2008) 10 SCC 115 has been pleased to hold that any claim made by an applicant beyond the prescribed period of limitation cannot be entertained by the Tribunal. Any relief to a stale/belated claim made by the applicant, even if disposed of with a direction for consideration of representation and disposal of such representation by the authority concerned, shall not give rise to a fresh cause of action. Any relief to a stale/belated claim made by the applicant, even if disposed of with a direction for consideration of representation and disposal of such representation by the authority concerned, shall not give rise to a fresh cause of action. This decision has also been affirmed by the Hon’ble Supreme Court in the case of Union of India & others vrs-M.K. Sarkar, reported in (2010) 2 SCC 59. As such since the applicant has approached this tribunal four years after the cause of action and not within the prescribed period of one year, in his first O.A. even if any order is passed by the authority concerned as per the direction of the Tribunal in the said O.A. that will not save the limitation. As such on that count also the relief sought for by the applicant is liable to be rejected. In support of his contention that no appointment can be made in an aided institution ‘without prior sanction of the post’/prior creation of post, so also without prior approval of the competent authority to fill up that post even for a period of six months, learned counsel cites a decision of the Hon’ble High Court in the case of State of Orissa and others v. Nabin Kumar Beura reported in 2011 (1) OLR 149 wherein the Hon’ble Court in paragraph 12 and 13 held that : “12. On a detailed analysis of the case of Majhipada M.E. School (supra), the facts of that case are distinct from the facts of the present case as noted herein above. In so far as the issue of “prior approval” is concerned, it would be pertinent also to take note of the amendment brought by the State by the Orissa Act No.13 of 1994 requiring” prior permission” for establishment of educational institutions, since the State wanted to stop the mushroom growth of the educational institutions. Obviously, Orissa Act No.13 of 1994 was not available for consideration in the case of Majhipada M.E. School (supra) which was decided on 21.02.1992. We are of the view that the learned Single Judge failed to consider the legal requirements “prior to creation of the post”. Whenever an additional section teacher post is required, 1974 Rules itself required” prior sanction of the post” itself where-after only, consideration for filling up the post would arise. We are of the view that the learned Single Judge failed to consider the legal requirements “prior to creation of the post”. Whenever an additional section teacher post is required, 1974 Rules itself required” prior sanction of the post” itself where-after only, consideration for filling up the post would arise. In the present case admittedly the institution had never sought for any approval or creation of any Additional post and consequently, it had no right to fill up the said post and that too by appointing the respondent without prior approval and whose name does not find place in the Select list prepared by the Selection Board. 13. What is most important to note here that the respondent was appointed in the year 1992 as an Additional Section teacher much after the school in question had already come to the fold of Grant-in-aid and therefore, the institution was receiving aid prior to the date of appointment of the respondent. Admittedly, therefore 1974 Rules would apply to the respondent. In the present case, it is the admitted case of the parties that no approval either for “creation of the post” or for “appointment of Additional teacher” was ever sought for nor approved. Rule-5 (8) clearly mandates that all appointments in aided institutions shall be made from the list provided by the Selection Board. The Managing Committee could make temporary appointment for a maximum period of six months but that too, after approval of the Inspector of Schools. In the present case, no such approval was granted and subsequent to the disposal of the earlier writ application i.e., OJC No.7213 of 1997 on 14.7.1997, the Inspector of Schools came to reject the representation of the respondent. Therefore, while the facts of the present case is clearly distinct from the facts dealt with in Majhipada M.E. School’s case, we are of the view that the learned Single Judge erred in misconstruing the judgment of this Court in the aforesaid case by holding that post facto approval would be obtained as a matter of right. Therefore, while the facts of the present case is clearly distinct from the facts dealt with in Majhipada M.E. School’s case, we are of the view that the learned Single Judge erred in misconstruing the judgment of this Court in the aforesaid case by holding that post facto approval would be obtained as a matter of right. We are further of the view that the learned Single Judge also erred in directing the “creation of a post” since the competency for creation of a post lies only with the authority vested with such authority under the Act and such a direction in the absence of any application being made by the institution for creation of the post was clearly opposed the stipulation contained in the 1974 Rules.” As such since 1974 Rules is applicable to all Educational Institutions i.e. both High Schools and M.E. Schools the ratio of this decision shall also be applicable to the case of the applicant. In support of his contention that requisitioning of names of candidates from the Employment Exchange and inviting names from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation are mandatory to fill up a post in a recognized/an aided institution, Mr. Tripathy, learned Standing counsel cites a decision of the Hon’ble Supreme Court in the case of State of Orissa and another versus Mamata Mohanty, reported in (2011) 2 SCC (L&S) 83 : (2011) 3 (SCC) 436 wherein in paragraph 35, 36 and 37 the Hon’ble Court held as follows : “Appointment/employment without advertisement 35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response there to should be considered fairly. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response there to should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution (vide Delhi Development Horticulture Employees” Union-vrs-Delhi Admn.), State of Haryana-vrs-Paira Singh, Excise Supdt.-vr-K.B.N. Visweshwara Rao, Arun Tewari-v-Zila Mansavi Shikshak Sangh, Binod Kumar Gupta-v-Ram Ashray Mahoto, National Fertilisers Ltd.-v-Somvir Singh, Telecom District Manager-v-Keshab Deb, State of Bihar-v-Upendra Naryaan Singh and State of M.P.-v-Mohd. Abrahim. 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or adhoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution of India. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirements is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit. 37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non-est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.” Even though this case is relating to a Lecturer appointed in a College, but since the college in question was an aided educational institution and the educational institution in which the applicant is said to have been appointed is also an aided educational institution, the principle decided by the Hon’ble Supreme Court shall also cover the fate of the applicant in this O.A. Since the appointment of the applicant is beyond the prescribed yardstick/sanctioned post and the school in which the applicant was working had already been taken over by the Government as per Resolution dated 12.5.1992 with effect from 1.4.1991, there is no illegality or irregularity in the impugned order dated 23.2.1994 (Annexure-4), which would call for any interference by this Tribunal and also accordingly the prayer as has been made by the applicant in this O.A. is liable to be rejected in limine. 5.As it appears, the subject matter of this case has already been finally decided by the Hon’ble Supreme Court in Civil Appeal No.15712/1996. One Sukanti Devi, who was appointed as a Hindi Teacher in Pichukuli M.E. Schools by the Managing Committee on 25.1.1989 when it was an aided institution had approached the Hon’ble High Court in OJC 4822/1992 with a prayer for a direction to the opposite parties for approval of her appointment as Hindi Teacher. The said OJC was disposed of without expressing any opinion about the merits of the case vide order dated 14.1.1992 with a direction to the Director, Secondary Education, Orissa (opp.party No.2) to deal with the case of the petitioner after taking into consideration the Annexure-4 within three months. The said OJC was disposed of without expressing any opinion about the merits of the case vide order dated 14.1.1992 with a direction to the Director, Secondary Education, Orissa (opp.party No.2) to deal with the case of the petitioner after taking into consideration the Annexure-4 within three months. Pursuant to the said order of the Hon’ble High Court the Director considered the case of the said Sukanti Devi and rejected her prayer for approval of her appointment as against the post of Hindi Teacher vide order dated 23.4.1993 on the ground that there being no post of Hindi Teacher in the staffing pattern of M.E. School, the appointment of such Hindi Teacher was against a non-sanctioned post and as such the expenses towards salary of such a teacher were to be borne by the concerned Managing Committing of the school and not by the Government. Thereafter she had approached this Tribunal in O.A. 1499(c)/1993 challenging the said order of rejection dated 23.4.1993 and a Division Bench of this Tribunal disposed of the said O.A. vide their order dated 2.3.1995 with a direction to the Director, Secondary Education, Orissa (respondent No.2) to appoint the applicant in any available or future vacancy of third teacher in M.E. School, in the category to which she belongs, keeping in mind the provisions of the ORV Act and Rules, and in case she does not possess the requisite training qualification, she be allowed to clear the same within the prescribed limit. Challenging the order of this Tribunal dated 2.3.1995 in O.A.1499/1999 the State of Orissa and others had filed Civil Appeal No.15712/1996 (S.L.P.(c) No.13435 of 1996) before the Hon’ble Supreme Court. The Hon’ble Supreme Court vide order dated 2.12.1996 allowed the said civil appeal with the following observation : “The only question is; whether the direction issued by the Tribunal to appoint him in future vacancy is valid in law ? It is seen that the third respondent came to be appointed in a third post as Hindi Teacher which was not sanctioned post; nor was the need for such an appointment recognized by the management. It is also stated that he was not qualified for the post. We need not go into the question of his qualification. It is seen that the third respondent came to be appointed in a third post as Hindi Teacher which was not sanctioned post; nor was the need for such an appointment recognized by the management. It is also stated that he was not qualified for the post. We need not go into the question of his qualification. Suffice it would be to state that the Government in their letter dated May 1, 1992 have stated as under : “I am directed to invite a reference to Govt. in Education Department Letter No.13409 dated 17.3.1992 and to inform you that Hindi being a non-examinable subject in M.E. Schools, there is no neek (need) to allow the existing Hindi teachers in M.E. Schools to continue further. Therefore, it was decided that the Hindi teachers who are ..... in M.E. Schools will be adjusted against the third post of teachers in M.E. Schools provided they possessed Matric C.T. Qualification. In case any of them not ..... C.T. Qualification he should be given chance to acquire C.T. Qualification as in service candidate by summer vacation..... he will be allowed untrained scale of pay till then. In case any one is non-Matric he should be given the chance to acquire an equal C.T. Qualification. In case of former, the qualification would be acquired within three years for issue of order and in case the non-Matriculation qualification should be acquired within period of five years.” In view of the above, the Tribunal was not right in giving the direction.” 6.Considering the submissions made by the learned counsel for both the parties, as it appears that the applicant was said to have been engaged as a (Temporary) Hindi Teacher by the Secretary of School vide letter dated 4.11.1989 (Annexure-1) as against a non-sanctioned post/unapproved post. Since there was no substantive/sanctioned post available for engagement of the applicant as a Temporary Hindi teacher in Barbhata M.E. School, Barbhata and no permission was granted by the competent authority for such engagement of the applicant prior to the date of his appointment nor proper procedure has been followed by the authority concerned for selection and appointment of the applicant and as such the appointment of the applicant was bad from its inception, so also since the applicant not being an approved teacher of the school in question and he was not appointed by the Secretary as against any sanctioned post, his services was not taken over by the Government when the school in which the applicant was said to be working was taken over. As such keeping in view the decision of the Hon’ble Supreme Court dated 2.12.1996 in Civil Appeal No.15712/1996 and other decisions of the Hon’ble Supreme Court and Hon’ble Court of Orissa as quoted above, no direction can be issued to the concerned authority to approve the appointment of applicant with effect from 6.11.1989 or adjust the applicant as against any 3rd teacher post in the same school or in any other Government M.E. School. In view of the above, I am of the considered view, no illegality or irregularity has been committed by the Director, Elementary Education in his order dated 23.2.1994 (Annexure-4) which would call for any interference by this Tribunal and accordingly I am not inclined to entertain the prayer as has been made by the applicant in this O.A.. The O.A. is accordingly disposed of. Since the O.A. is disposed of, all interim orders passed during the pendency of the O.A. stand vacated. O.A. disposed of.