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2015 DIGILAW 124 (ORI)

Jatadhari Samal v. State of Odisha

2015-02-24

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. The petitioner, who was working as Peon in Jagannath Bidyaniketan, Kotang, in the district of Puri filed this petition challenging the order of Inspector of Schools- opposite party no.3 rejecting his representation for approval of appointment of 4th peon of the School. 2. The short fact of the case, in hand, is that the petitioner was appointed as 4th peon on 01.10.1986, i.e., prior to the revised yardstick came into force w.e.f.27.03.1992. When the petitioner’s case was recommended for approval as a 4th peon, his case was rejected on the ground that as per the revised yardstick dated 27.03.1992 the roll strength of the School was less than 500 and therefore, his appointment is beyond the yardstick. As per the yardstick dated 08.07.1981, the post of peon is justified where the roll strength of the School is 100 or exceeds 100 and the institution in question is aided, has become eligible to receive grant-in-aid w.e.f.01.07.1984. As per the yardstick dated 19.03.1992 enforceable from 01.01.1992, three Class-IV employees are admissible when the roll strength is less than 500 and where the roll strength exceeds 500, one post of Daftary is admissible. Therefore, 4th post of peon has not been created by the Government for the School. Since the petitioner has been appointed as Class-IV employee by Managing Committee prior to 01.02.1992, the question of according approval to the post of 4th peon does not arise. Hence this petition. 3. Mr. A.K. Mohanty-A, learned counsel for the petitioner strenuously urged that the reasons assigned for not approving the post of the petitioner as 4th peon is not germane to be considered in view of the fact that the revised yardstick of 27.03.1992, which was enforced from 01.01.1992 has no application to the present context as the petitioner was appointed as a 4th grade employee on 30.11.1986 under prevalent yardstick dated 08.07.1981. Under the said yardstick, where the school is having roll strength of 100 or exceeds 100, one post of 4th peon is admissible against which the petitioner was appointed. Therefore, the reason assigned in the impugned order, vide Annexure-1 cannot sustain, consequentially, the petitioner is entitled to get all the benefits as admissible to the post. 4. Mr. A.K. Pandey, learned Standing Counsel for School and Mass Education Department states that the petitioner has never been appointed against the post of 4th peon. Therefore, the reason assigned in the impugned order, vide Annexure-1 cannot sustain, consequentially, the petitioner is entitled to get all the benefits as admissible to the post. 4. Mr. A.K. Pandey, learned Standing Counsel for School and Mass Education Department states that the petitioner has never been appointed against the post of 4th peon. From the proceeding book which has been submitted by the Headmaster, it reveals that the petitioner was appointed as a Laboratory Bearer vide Managing Committee Resolution No. 20 dated 30.09.1986 and subsequently joined in the School on 01.10.1986. The Headmaster submitted the original Employment Exchange Card, Managing Committee Resolution Book, appointment order and joining report of the petitioner. As per the said documents, the petitioner has been appointed as a Laboratory Bearer on 30.09.1986 and subsequently, joined on 01.10.1986. Pursuant to the order dated 22.10.1998, the case of the petitioner was reconsidered. As per the yardstick dated 08.07.1981, three class-IV employees are admissible for non-government Secondary Schools and where the roll strength exceeds 100, one post of Duftary is admissible. But the petitioner having been appointed as a Laboratory Bearer in contravention of the Government letter dated 08.07.1981, his service is not entitled be approved by the competent authority. As per the yardstick dated 27.03.1992 which has come into force w.e.f.01.01.1992, three numbers of Class-IV employees were admissible to the School and where roll strength is 500 or more, one post of Duftary is admissible. No materials have been produced before the authority granting promotion to the senior most person to the post of Duftary so that in the consequential vacancy the petitioner could be adjusted nor the appointment of the petitioner indicates that he was appointed against the post of 4th peon. In absence of any materials available on record, the reasons assigned by the authority are wholly and fully justified and therefore, this Court may not interfere with the same. 5. Considering the contentions raised by the learned counsel for the parties and after going through the materials available on record, it appears that Jaganath Bidyaniketan, Kotang has been established by the local public in the year 1984 and got provisional recognition on 1.10.1985. 5. Considering the contentions raised by the learned counsel for the parties and after going through the materials available on record, it appears that Jaganath Bidyaniketan, Kotang has been established by the local public in the year 1984 and got provisional recognition on 1.10.1985. The school became eligible to receive grant-in-aid w.e.f.1.3.1991 and received full salary cost under the grant-in-aid principle in the year 1995, i.e., w.e.f.1.6.1994, thereby the school became an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act. Admittedly, vide Annexure-5, the petitioner was appointed as Laboratory Bearer (4th Grade) in the scale prescribed by the Government with usual D.A. and A.D.A. vide letter dated 30.9.1986. Consequently, the petitioner joined in service on 1.10.1986 vide Annexure-6. As per letter No.28465/EYS dated 8.7.1981 on the subject fixation of standard staff for the non-Government secondary schools in Annexure-4 as per clause 9 for a three class school, three posts of peons are sanctioned, namely, (i) office peon- one, (ii) Science Attendant- one, and (iii) Night Watcher-cum-sweeper- one. Under Clause (C)(ii) where the roll strength of the school exceeds 100, one post of Daftary is admissible. Admittedly, the school had already appointed three peons as per the letter in Annexure-4. It is the further case of the petitioner that he was appointed as Laboratory Bearer (4th Grade) which is a non-existent post under the yardstick vide Annexure-4. No materials have been produced before this Court indicating that out of three peons, who were continuing in one school has been promoted to the post of Daftary and against the consequential vacancy the petitioner has been engaged as Laboratory Bearer (4th Grade). There is nothing on record to substantiate the fact that the roll strength of the school exceeded 100 entitling for post of Daftary and out of three peons, already engaged, one has been appointed/ promoted as Daftary and against the consequential vacancy, the petitioner has been given appointment. Therefore, the claim made by the petitioner that he has been appointed under the yardstick dated 8.7.1981 in Annexure-4 against the post of 4th peon is absolutely misconceived one. Since the Government has not crated the 4th post of peon, the appointment of the petitioner against such post and seeking approval of the post is not justified. Therefore, the claim made by the petitioner that he has been appointed under the yardstick dated 8.7.1981 in Annexure-4 against the post of 4th peon is absolutely misconceived one. Since the Government has not crated the 4th post of peon, the appointment of the petitioner against such post and seeking approval of the post is not justified. Therefore, since the 4th post of peon has not been created by the Government against which the petitioner claims for approval and by virtue of the order passed by the Managing Committee if the petitioner is continuing against such post, the authorities, namely, opposite party no.3 is justified in rejecting the claim of the petitioner for approving his post vide Annexure-1. Reliance has been placed on the office order dated 7.5.2008 issued by the Government of Odisha, School and Mass Education Department wherein reference has been made to the judgment dated 29.8.2003 of the apex Court in Civil Appeal No.6844 of 2003 (State of Orissa v. Rajendra Kumar Das and another and batch of 4 other C.As.). The above mentioned office order having been issued on 7.5.2008, the same is applicable prospectively and not retrospectively. However, considering the length of service rendered by the petitioner, it is left open to the authority to consider the case of the petitioner to adjust him in any suitable vacancy and extend the benefits admissible in accordance with law. 6. With the aforesaid observation and direction, the writ petition stands disposed of. No cost.