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2012 DIGILAW 237 (ORI)

SRI RAMESH CHANDRA NAYAK v. STATE OF ORISSA

2012-05-08

M.M.DAS

body2012
JUDGMENT : M.M. Das, J. - The appellant has filed this appeal under section 24-B of the Orissa Education Act, 1969 against the judgment and order dated 27.12.2010 passed by the State Education Tribunal in G.I.A. Case No.227 of 2008. The respondent no.5 originally filed O.J.C. No.2098 of 1993 before this Court with a prayer to quash the order passed by the Superintendent, Sanskrit Studies-opposite party no.3 in the writ petition by which the present appellant was treated to be a trained graduate teacher with effect from 01.03.1990 and for declaration that the petitioner (the present respondent no.5) to be continuing against the TGT post with effect from 01.06.1989 and to further direct the opposite parties to accord approval of the appointment of the petitioner (respondent no.5 herein) against the Trained Graduate Post with effect from 01.03.1990 and to release the salary component to him regularly in accordance with Rule-9 of the Recruitment Rules. 2. This Court by order dated 26.03.2008 finding that the dispute is covered by the provisions under section 24-B of the Orissa Education Act, 1969 and the writ application was filed before amendment of the said Section, on the prayer of the petitioner (present respondent no.5) following the ratio in the case of Smt. Rama Panigrahi v. State of Orissa and others, 2003 (I) OLR 438 transferred the writ petition to the State Education Tribunal for disposal in accordance with law expeditiously. The said O.J.C. No.2098 of 1993 on being transferred to the Tribunal was registered as GIA Case No.227 of 2008. 3. It appears that Sovakar Sanskrit Vidyalaya, Avana in the District of Balasore was initially established with a Prathama course (equivalent to M.E. Standard) in the year 1969. Subsequently, it was given recognition for Madhyama course equivalent to H.S.C. standard in the year 1975. It is an admitted case that respondent no.5 having B.A. qualification was appointed as an Assistant Teacher by the Managing Committee and joined the post on 25.10.1976. The appellant was appointed as an Assistant Teacher on 01.10.1980. Both the appellant and the respondent no.5 were untrained hands at the time of their appointment. 4. Mr. Swain, learned counsel for the appellant submitted that the appellant was appointed as Assistant Teacher against a Trained Graduate Post and he having acquired B.Ed. The appellant was appointed as an Assistant Teacher on 01.10.1980. Both the appellant and the respondent no.5 were untrained hands at the time of their appointment. 4. Mr. Swain, learned counsel for the appellant submitted that the appellant was appointed as Assistant Teacher against a Trained Graduate Post and he having acquired B.Ed. qualification in the year 1985, the Managing Committee of the Sanskrit Toll, in question, while submitting the staff position for recognition of Madhyama course, recommended the name of the appellant against a Trained Graduate Post and the name of respondent no.5 against a trained Intermediate post, as the respondent no.5 has not acquired B.Ed. qualification at the time of inspection of Madhyama Wing in the year 1987, which fact is evident from the inspection report of the Superintendent of Sanskrit Studies dated 29.07.1987. He further submitted that as per the prescribed yardstick, for Madhyama Toll, posts of two teachers, one Trained Graduate and one I.A. C.T. Teacher, are admissible. The respondent no.5 acquired B.Ed. qualification much later, i.e., in the year 1988. On 30.05.1992, the Managing Committee of the School illegally recommended the name of the respondent no.5 against the Trained Graduate Post and the appellant against the Intermediate Post for which the Superintendent of Sanskrit Studies, Orissa by his letter dated 30.05.1992 directed the Secretary of the Managing Committee to explain as to how the name of the appellant, a senior qualified teacher, has not been recommended against the post of a Trained Graduate Teacher. The Superintendent of Sanskrit Studies by his letter dated 03.07.1992 wrongly approved the appointment of respondent no.5 against the Trained Graduate Post although he was never appointed against such post nor he acquired B.Ed. qualification by the time when Madhyama stream was opened. When such mistake was brought to the notice of the Superintendent of Sanskrit Studies by placing the inspection report, he by his letter dated 19.10.1992 called upon the Secretary of the Managing Committee to explain under what circumstances the position shown in inspection report was wilfully changed and the appellant has been shown against a Trained Intermediate post whereas the respondent no.5 was shown as the Trained Graduate Teacher. The Secretary of the Managing Committee having not clarified the position, the Superintendent of Sanskrit Studies by letter dated 17.02.1993 recalled the previous order dated 03.07.1992 and approved the appointment of the appellant against the Trained Graduate Post with effect from 01.03.1990. This order was challenged by the respondent no.5 before this Court in the aforementioned O.J.C., which was subsequently transferred to the Tribunal. The Tribunal in the impugned judgment came to the conclusion that the respondent no.5, who was the petitioner before the Tribunal should be considered to have been appointed to the Trained Graduate Post and when allowing the GIA case directed to allow the petitioner (respondent no. 5 herein) to continue against the Trained Graduate Post to which post his services were approved earlier and he was allowed to draw the scale of pay of a Trained Graduate Teacher. 5. Mr. Swain further submitted that Madhyama wing was opened and got recognition in the year 1987. The appellant was in possession of the requisite qualification, i.e., B.A. B.Ed. whereas the respondent no.5 acquired the B.Ed. qualification in the year 1988, which is much after the appellant acquiring such qualification. He further contended that the inspection report, which was placed before the Tribunal showing that the appellant was appointed to the post of a Trained Graduate Teacher has not been considered by the Tribunal in proper perspective and the Tribunal has also not considered the letters of the Superintendent of Sanskrit Studies dated 30.05.1992 and 19.10.1992 even though those documents were placed before the Tribunal. He relied upon the judgment of this Court in the case of Nilamani Mishra v. State of Orissa and others, 1990 (II) OLR 422 in support of his contention that the appointment of a teacher, who is not a Trained Teacher against a Trained Graduate Post does not make the appointment into the cadre and only after acquisition of B. Ed. qualification, he will enter into the cadre of a Trained Graduate Teacher. He further submitted that similar view was also taken by this Court in the cases of Ananda Sahoo v. State of Orissa and others, 32 (1990) OJD 60 and Prafulla Kumar Das v. State of Orissa and Others, 85 (1988) CLT 300. qualification, he will enter into the cadre of a Trained Graduate Teacher. He further submitted that similar view was also taken by this Court in the cases of Ananda Sahoo v. State of Orissa and others, 32 (1990) OJD 60 and Prafulla Kumar Das v. State of Orissa and Others, 85 (1988) CLT 300. Relying upon the decision in the case of Managing Committee, Mahavir Ucha Bidyapitha v. Baishnab Charan Nayak and others, 46 (1978) CLT 436, he submitted that the approved staffing pattern does not admit of untrained teachers, which gives preference only to trained teachers and untrained teachers can have no claim over such post. According to Mr. Swain, appointment of untrained teachers against a trained graduate post is contrary to section 7-B(1) of the Orissa Education Act as the said provision clearly provides that in a recognized institution only qualified teachers/trained teachers are eligible to be appointed. He also relied upon various other decisions in support of his contention that an untrained teacher, if appointed to meet temporary exigencies, the moment a trained teacher is available, the untrained teacher is to make room for him. The arbitrary decision, according to Mr. Swain, of the Managing Committee cannot be said to be a valid decision as has been held in the case of Bikram Kumar Parida v. State of Orissa and others, 32 (1990) O.J.D. 79. He, therefore, contended that in view of the settled position of law the judgment of the Tribunal is unsustainable and is bound to be set aside. 6. Mr. J.K. Rath, learned senior counsel appearing for the respondent no.5, on the contrary, contended that both, the appellant and the respondent no.5 on the date of their appointments were untrained. The respondent no.5 was admittedly appointed earlier to the appellant and none of them were appointed to any particular post. The Managing Committee is the competent authority to fix the inter se seniority of the employees. Law is well settled in this regard. He relied upon the judgment in the case of Sarat Kumar Mishra v. State of Orissa and others, 55 (1993) C.L.T. 446, where this Court has held that seniority is a matter to be decided by the Managing Committee and the educational authorities have no role to play in the fixation of seniority and the appointment of a teacher made by the Managing Committee against a post.. This view, according to Mr. Rath, has been reiterated in the case of Parsuram Nayak v. State of Orissa and others, 65 (1988) CLT Notes 55, where this Court held that the Inspector of Schools has no role to play while granting Grant-in-Aid to the employees of an educational institution except approving the same for payment and cannot alter the position as assigned by the Managing Committee. Mr. Rath, contended that the Managing Committee having decided in its meeting held on 26th June, 1986 that the respondent no.5 is to be treated as the first Assistant Teacher and the appellant as the second Assistant Teacher. The decision of the Managing Committee having been communicated to the educational authority and further by resolution dated 30th April, 1988, the Managing Committee having resolved to place respondent no.5 as trained graduate teacher and the appellant as trained Intermediate Teacher and again as per the resolution of the Managing Committee dated 19th May, 1990 for clarifying the query made by the Superintendent of Sanskrit Studies, the Managing Committee having clarified that the respondent no.5 was appointed against B.A. B. Ed. post and the appellant, who was teaching Science and Mathematics was appointed against the I.A. C.T., there was no occasion for the respondent no.3-Superintendent of Sanskrit Studies to sought for further clarification on 09.12.1993. The said letter of the respondent no.3 was placed before the Managing Committee and the Managing Committee resolved on 17.12.1992 that it has already taken repeated decisions that respondent no.5 was the Trained Graduate Teacher and the appellant was the Trained Intermediate Teacher. On the basis of such decision of the Managing Committee, the competent educational authority accorded approval to the respondent no.5 as the Trained Graduate Teacher. Mr. Rath, therefore, submitted that the Tribunal has rightly come to the decision in favour of the respondent no.5 declaring him to have been appointed against the Trained Graduate Post and the appellant against Trained Intermediate Post and such judgment is not required to be interfered with in this appeal. 7. Mr. Rath, therefore, submitted that the Tribunal has rightly come to the decision in favour of the respondent no.5 declaring him to have been appointed against the Trained Graduate Post and the appellant against Trained Intermediate Post and such judgment is not required to be interfered with in this appeal. 7. Coming to the impugned judgment passed by the Tribunal, it is seen that the learned Tribunal after noting the respective cases of the parties and considering the contentions of the learned counsel for the respective parties concluded as follows: "In the case in hand, besides that the petitioner was appointed against a trained graduate post though was untrained, he acquired the trained qualification by the time the institution was taken into grant-in-aid fold in the year 1992 w.e.f. 1.6.1989. His appointment against the trained graduate post was approved and he was drawing in the said scale. Pending that when the Managing Committee in the controversy on inter se seniority between the petitioner and O.P. No.5 decided the petitioner senior to O.P. No.5 and that has been accepted by the O.P. No.5, after long lapse of time, it is not proper on the part of the O.P. No.3 to take up the matter of his own and decide the same against the settled principle. Therefore, in the aforesaid circumstances, deciding to release grant in aid in respect of T.G.T. post in favour of O.P. No.5, who was appointed against trained intermediate post and pulling down the petitioner from trained graduate post to trained intermediate post is against the principle of law and is gross violation of natural justice this is liable to be set aside." Concluding thus, he allowed the case of the respondent no.5 and directed the State and its authorities, being opposite party nos.1 to 3 before him to allow the respondent no.5, who was the petitioner before the Tribunal, to continue against the Trained Graduate Post in respect of which his service was earlier approved and he was allowed to draw the scale of pay. The above conclusion of the learned Tribunal is in tune with the law laid down by this Court in the cases of Sarat Kumar Mishra (supra) and Parsuram Nayak (supra). 8. This Court finds neither any illegality or impropriety in the impugned judgment nor any error of fact or of law therein. The above conclusion of the learned Tribunal is in tune with the law laid down by this Court in the cases of Sarat Kumar Mishra (supra) and Parsuram Nayak (supra). 8. This Court finds neither any illegality or impropriety in the impugned judgment nor any error of fact or of law therein. This Court also finds that the learned Tribunal has considered all the materials produced before him appropriately while coming to the above conclusion. Therefore, this Court, while finding that the said judgment is not susceptible to be interfered with, comes to the conclusion that the appeal has no merit. 9. The FAO is accordingly dismissed.