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2016 DIGILAW 1105 (ORI)

Ajaya Kumar Pattnaik v. State of Orissa

2016-11-16

B.R.SARANGI, VINEET SARAN

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JUDGMENT : B.R. SARANGI, J. This intra-Court appeal has been preferred by the writ petitioner assailing the order dated 24.02.2016 passed in W.P.(C) No. 2858 of 2016, whereby learned Single Judge has declined to interfere with the decision taken by the Collector-cum-Chief Executive Office, Zilla Parishad, Khurda disengaging him from contractual service as a Junior Teacher, in view of the resolution date 31.05.2006 issued by the Government of Odisha in the Department of School and Mass Education. 2. This case has a checkered career. The factual matrix of the case is that the appellant applied for engagement as Sikshya Sahayak pursuant to advertisement made in accordance with the resolution dated 31.05.2006 of the Government of Odisha, Department of School and Mass Education. On being selected, he was engaged as Sikshya Sahayak at Bhimpur Primary School by the Collector-cum-Chief Executive Officer, Zilla Parishad, Khurda on 23.12.2006, where he joined on 26.12.2006. He was also allowed to discharge the duty of Headmaster in-charge pursuant to order dated 17.09.2007 passed by the Block Development Officer, Jatni. The Joint Secretary to Government, School and Mass Education Department issued a notification/circular dated 25.01.2010 relating to appointment/disciplinary authority of Sikshya Sahayak, Junior Teacher and Zilla Parishad Teacher under the control of Collector-cum-Chief Executive Officer, Zilla Parishad of the district in all over the State. 3. On a complaint, being made by the Ward Member and others, to School Student Helpline (SSH), OPEPA, School and Mass Education in Complaint No. 3139 dated 08.07.2011 and also the grievance made before the Secretary, School and Mass Education in Grievance Case No. 785/2381 dated 23.07.2011, a transfer order was issued by the District Inspector of School, Bhubaneswar transferring the appellant from Bhimpur Primary School, Jatni to Jagannath Rath Nodal U.P. School, Taraboi on 04.08.2011. The appellant remained on medical leave from 05.08.2011 to 29.08.2011. While he was continuing on leave, on 22.08.2011 a Notification/Circular was issued by the Director of Elementary Education, Odisha to all the District Inspector of Schools in the State of Odisha regarding ban period of transfer of teachers at elementary level from 15.06.2011. However, challenging the said order of transfer dated 04.08.2011, the appellant preferred W.P.(C) No. 22911 of 2011. This Court passed an interim order granting stay of the order of transfer dated 04.08.2011. Consequentially, the appellant submitted his joining report on 03.09.2011 after the medical leave. 4. However, challenging the said order of transfer dated 04.08.2011, the appellant preferred W.P.(C) No. 22911 of 2011. This Court passed an interim order granting stay of the order of transfer dated 04.08.2011. Consequentially, the appellant submitted his joining report on 03.09.2011 after the medical leave. 4. As the things stood thus, on the basis of the complaint made by the Ward Member and others to School Student Helpline (SSH), OPEPA, School and Mass Education Department, an enquiry was conducted on 26.08.2011 and the enquiry report was submitted by the Deputy Director, School Student Helpline (SSH), OPEPA, School and Mass Education Department to the Secretary, School and Mass Education Department. The Secretary, School and Mass Education Department passed an order on 09.09.2011 directing stoppage of salary of the appellant for August, 2011 and subsequent months until further orders and to start with a disengagement process immediately with a further direction to the District Inspector of School, Bhubaneswar to lodge FIR against the appellant, which was communicated to the Deputy Director (Admn.) OPEPA, Bhubaneswar for implementation. Consequentially, the same was communicated to the District Project Coordinator (DPC), Sarva Sikshya Abhijan (SSA), Khurda on 12.09.2011 to put an end to the service of the appellant. 5. The District Project Coordinator (DPC), Sarva Sikshya Abhijan (SSA), Khurda framed charges and issued a show cause calling for explanation from the appellant on 15.09.2011. In response to the same, the appellant submitted his explanation along with relevant documents on 30.09.2011. Against such framing of charges, the appellant approached this Court by filing W.P.(c) No. 27347 of 2011, which was disposed of vide order dated 25.10.2011 with a direction to close the proceeding by six weeks. During pendency of the writ petition, on 19.10.2011 hearing was conducted by the District Project Coordinator (DPC), Sarva Sikshya Abhijan (SSA), Khurda. But, while he was so continuing, on completion of three years of service as Sikshya Sahayak, he was engaged as Junior Teacher on contractual basis on 21.11.2011. 6. The writ application bearing W.P.(C) No. 22911 of 2011, which was filed challenging the order of transfer dated 04.08.2011, was disposed of by this Court by quashing the said order. Consequentially, the appellant was allowed to join at Bhimpur Primary School, Jatani on 07.02.2012 by the Block Education Officer, Jatani. 6. The writ application bearing W.P.(C) No. 22911 of 2011, which was filed challenging the order of transfer dated 04.08.2011, was disposed of by this Court by quashing the said order. Consequentially, the appellant was allowed to join at Bhimpur Primary School, Jatani on 07.02.2012 by the Block Education Officer, Jatani. While the appellant was discharging his duty w.e.f. 09.02.2012, he was issued with a disengagement order passed by the Collector-cum-Chief Executive Officer, Khurda on 21.02.2012. Challenging the same, the appellant fled W.P.(C) No. 4977 of 2012 on 9.03.2012 and this Court, after hearing the parties, quashed the disengagement order passed on 21.02.2012 and remitted the matter to the Collector, Khurda to consider it independently without being influenced by the order of the Secretary, School and Mass Education Department passed earlier. In compliance of the same, the Collector, Khurda passed order dated 14.10.2015, which the appellant challenged in W.P.(C) No. 2858 of 2016, but at the stage of fresh admission, learned Single Judge did not feel inclined to interfere with the order impugned and disposed of the same vide judgment dated 24.02.2016. Hence, this appeal. 7. Mr. H.S. Pati, learned counsel for the appellant strenuously urged that the order of transfer dated 04.08.2011, which was the subject matter of challenge in W.P.(C) No. 22918 of 2011, having been set aside by this Court and the appellant having been allowed to continue at Bhimpur Primary School, where the appellant had been continuing w.e.f. 09.02.2012, subsequent disengagement order passed by the Collectorcum- Chief Executive Officer, Khurda on 21.02.2012, just after 11 days of resuming duty, cannot sustain in the eye of law. It is further urged that the appellant having not been given an opportunity of hearing, the order of disengagement passed on 21.02.2012 is illegal, arbitrary and suffers from violation of principle of natural justice. It is further urged that the appellant, who was initially engaged as Sikshya Sahayak and, on completion of three years of service, he having been allowed to continue as Junior Teacher on contractual basis by the Collector-cum-Chief Executive Officer, Zilla Parishad, Khurda, subsequent order of disengagement passed by him also cannot sustain in the eye of law. 8. Mr. It is further urged that the appellant, who was initially engaged as Sikshya Sahayak and, on completion of three years of service, he having been allowed to continue as Junior Teacher on contractual basis by the Collector-cum-Chief Executive Officer, Zilla Parishad, Khurda, subsequent order of disengagement passed by him also cannot sustain in the eye of law. 8. Mr. A.K. Pandey, learned Standing Counsel for School and Mass Education Department substantiated the action of the authority stating inter alia the order impugned has been passed in compliance of the principle of natural justice and, thereby, no illegality or irregularity has been committed in disengaging the appellant in terms of the resolution passed on 31.05.2006. It is further contended that the appellant having been continuing on contractual basis as a Junior Teacher, no right accrued in his favour to continue the post and his engagement is purely in compliance of the resolution dated 31.05.2006 passed by the Government of Odisha in the School and Mass Education Department. The appellant having acted in gross violation of such resolution, the steps have been taken and, as such, the order of disengagement is wholly and fully justified and does not warrant any interference by this court at this stage. It is further urged that the counsel, who is appearing for the appellant, was not his counsel in the writ petition. As such, what was argued before the writ Court is not made known to the present counsel. Therefore, any contention raised in appeal by him, cannot sustain in the eye of law. 9. We have heard Mr. H.S. Pati, learned counsel for the appellant and Mr. A.K. Pandey, learned Standing Counsel for School and Mass Education Department and perused the records. With the consent of learned counsel for the parties, we dispose of the appeal at the stage of fresh admission. 10. Pursuant to Article 243G of the Constitution of India, as inserted by the Constitution (73rd Amendment) Act, 1992 conferring powers to hand over the elementary education to the control of Zilla Parishad and other Panchayati Raj institutions, Government has issued a resolution on 31.05.2006 with regard to engagement of Sikshya Sahayaks (SSs) under Zilla Parishads as per the requirement under the programme of Elementary Education and SSA and the service of Sikshya Sahayaks will be placed with Village Education Committee. Clause 4.4 of the said resolution, being relevant for the purpose of the case, is quoted below: “4.4. Orders of engagement shall be issued by the Zilla Parishad through its Chief Executive Officer-cum-Collector of the District. The engagement will be on an annual contract basis. Contract will be renewed in subsequent years depending on the performance of the candidate. While renewing the contract of the Sikshya Sahayaks (SSs), the Zilla Parishad/Collector-cum-CEO, Zilla Parishad must see that the VEC of the concerned school has given positive certificate in his/her favour about regular attendance and satisfactory teaching. The Sikshya Sahayak (SS) can be removed from engagement with 30 days prior notice, if she/he violates the conditions of the contract or is considered unsuitable later on by the authorities or on the basis of adverse report of the VEC.” On perusal of the aforementioned provision it clearly elucidates that nature of appointment of the Sikshya Sahauyaks is purely of an annual contractual basis, but the said contract will be renewed in subsequent years depending upon the performance of the candidate. While renewing the contract of the Sikshya Sahauyaks, the Collectorcum- C.E.O.-Zilla Parishad must see that the Village Education Committee of the concerned school has given positive certificate of the performance, more particularly about regular attendance and satisfactory teaching and that a Sikshya Sahayak can be removed from engagement with thirty days prior notice, if he/she violates the conditions of the contract or on the basis of the adverse report of the Village Education Committee. 11. The resolution dated 31.05.2006 also contemplates that a Sikshya Sahayak, after completion of satisfactory engagement, will be eligible for appointment as Junior Teacher by the Zilla Parishad on contractual basis with consolidated remuneration of Rs.3,000/- per month. After completion of three years of satisfactory engagement as Junior Teacher, he/she will be granted an increase in remuneration of Rs.500/- subject to the conditions mentioned in clause-9 and it is only thereafter if a Junior Teacher completed 5 years of continuous service of engagement, he/she will be eligible for appointment of regular primary school teacher by the Zilla Parishad. After completion of three years of satisfactory engagement as Junior Teacher, he/she will be granted an increase in remuneration of Rs.500/- subject to the conditions mentioned in clause-9 and it is only thereafter if a Junior Teacher completed 5 years of continuous service of engagement, he/she will be eligible for appointment of regular primary school teacher by the Zilla Parishad. The Junior Teachers of Zilla Parishad on rendering satisfactory service, as reviewed every three years, can continue in service but not beyond 58 years of age as per Clause 12.1 of the said resolution, which read as follows: “The Junior Teachers of Zilla Parishads on rendering satisfactory service as reviewed every 3 years can continue in service but not beyond 58 years of age” In view of the aforesaid provision, the engagement of Sikshya Sahayak or Junior Teacher is purely contractual and subject to review on rendering satisfactory service. 12. There is no dispute with regard to the factum of engagement of appellant as Sikshya Sahayk and his subsequent continuance as Junior Teacher on contractual basis, which is a tenure engagement in terms of the resolution dated 31.05.2006. 13. In Union of India v. Tulsiram Patel, AIR 1985 SC 1416 the apex Court held that: “Since tenure means the period for which an incumbent of an office holds it, it would follow that the precise tenure would depend upon the terms and conditions of the appointment.” In Union of India v. Brahma Dutt Tripathi, (2006) 10 SCC 220 , the apex Court held that: “Extension of tenure is subject to requirement of service as per terms of appointment.” In view of the engagement order issued in favour of the appellant, it clearly indicates that it is a contractual engagement and its basis depends on the express and/or implied terms of the contract. 14. Now, reverting back to the impugned judgment, it is seen that the learned Singe Judge, while considering the position of contractual engagement, has relied upon the judgments of the apex Court in Director, Institute of Management Development, U.P. v. Smt. Pushpa srivastav, (1992) 4 SCC 33 , Vidyavardhaka Sangha and another v. Y.D. Deshpande and others, (2006) 12 SCC 482 and State Bank of India & Ors. v. S.N. Goyal, JT 2008(6) SC 298. v. S.N. Goyal, JT 2008(6) SC 298. The principles laid down therein are clearly applicable to the present context, as the appellant was admittedly engaged on contractual basis initially as Sikshya Sahayak and subsequently as Junior Teacher in terms of the resolution of the Government dated 31.05.2006. 15. As already discussed above, continuance of Sikshya Sahayak or Junior Teacher is dependent upon rendering of satisfactory service. But, in the instant case, the appellant has failed in discharging his duty in efficient manner and has violated the terms and conditions of engagement and he has neglected in his duty and caused disobedience to the Government orders touching the integrity with pecuniary interest, on account of which a show cause notice was issued by the District Project Coordinator, to which the appellant responded by filing an explanation and on consideration of the same the Collector-cum-CEO, Zilla Parishad, Khurda passed an order on 21.02.2011 by disengaging the appellant from service, which was the subject-matter of challenge before this Court and consequentially the same was quashed by remitting the matter to the Collector-cum-CEO, ZIlla Parishad to take a fresh decision by applying independent mind and without being influenced by any observation made by the Commissioner-cum-Secretary, School and Mass Education Department, vide order dated 21.02.2012 passed in W.P.(C) No.4977 of 2012. 16. In compliance of order dated 21.02.2012, the Collector-cum- CEO, Zilla Parishad by affording opportunity and considering the explanation submitted on 30.09.2011 and after going through all the relevant records from the personal file maintained at the Sarva Sikhya office and also inquiry report of the OIC, School Student Helpline dated 20.06.2011 on the allegation made by the villagers against the appellant, passed the order dated 14.10.2015, which was the subject-matter of challenge in W.P.(C) No.2858 of 2016. At the admission stage, the learned Single Judge having considered the contention raised by the learned counsel for the appellant and going through the reason assigned by the Collector-cum-CEO, Zilla Parishad in his order dated 14.10.2015 passed in compliance of the order passed by this Court dated 21.02.2012 in W.P.(C) No.4977 of 2012 has come to a definite finding that this Court cannot assume the power of appeal to reverse the finding of fact given by the Collector-cum-CEO, Zilla Parishad, who is the statutory authority whose subjective satisfaction is necessary for the further retention of the appellant in service. As such, the entire action having been taken in consonance with the terms of the resolution dated 31.05.2006 and particularly when further continuance of the appellant in service is dependent on review by the competent authority, it having exercised such power in consonance with the resolution, we find that no illegality or irregularity has been committed by the learned Single Judge in passing the impugned judgment and order. 17. So far as other contention raised by the learned Standing Counsel for School Mass Education Department that the conducting counsel herein was not the counsel in the writ Court, in regard to same we are not inclined to express any opinion, in view of the fact that we have already considered the matter on merits. 18. In view of the aforesaid facts and circumstances, we are not inclined to interfere with the judgment and order of the learned Single Judge dated 24.02.2016 passed in W.P.(C) No.2858 of 2016. Accordingly, the writ appeal stands dismissed. No order as to cost.