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2016 DIGILAW 627 (ORI)

Geetanjali Jagadev v. State of Orissa

2016-08-10

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. By this application under Article 226 of the Constitution of India, the petitioner challenges the order dated 6.6.1998 issued by the President, Gopabandhu English Medium School Committee, Water and Land Management Institute (hereinafter referred to as “WALMI”), Pratap Nagari, Cuttack vide Annexure-9 declining to regularize of her service. 2. Shorn of unnecessary details the short facts of the case of the petitioner is that Gopabandhu English Medium School (hereinafter referred to as “School”) was established, managed and financed by Water Resources Department, Government of Orissa. The petitioner is a science graduate. On being selected, she was appointed as an Assistant Teacher in the School on voluntary basis. She joined in the post on 2.9.1992. At the time of her joining, one Shri K.C. Swain, NMR Junior Assistant in WALMI, was provisionally posted as Principal of the School on voluntary basis in addition to his own duties. Vide order no.2560 dated 10.6.1993, Shri Swain was directed to work as Principal of the School. Though the petitioner was appointed in the year 1992 and continuing in the School, she had not been paid the salary. While the matter stood thus, the Deputy Director, WALMI, opposite party no.3, sent a letter to the President of the School on 12.5.1993 that the petitioner will be absorbed as a regular teacher after evaluating her performance. Accordingly, a proposal was sent by the School for regularization of the existing staffs. The Chief Engineer and Director, WALMI, opposite party no.2, by office order no.4565 dated 30.7.1994 created one post of Assistant Teacher with regular scale of pay of Rs.1400-2600/-vide Annexure-5. Though the post was created, but then Shri Swain, who was functioning as Principal of the School, was absorbed in the said post. The proposal was submitted by the opposite party no.2 on 16.9.1994 to the Survey Officer, D.I.C., Cuttack, Orissa in a proforma for All India Educational Service Report indicting the name of the petitioner as an Assistant Teacher. While continuing as an Assistant Teacher, she had undergone B.Ed. training and completed the course. The President of the School committee submitted the report on the performance and quality of teaching of the teachers and suggested to the opposite party no.3 for payment of consolidated salary of Rs.2470/-per month to the petitioner till regularization of her service. Since her service had not been regularized, she made series of representations to the authority. The President of the School committee submitted the report on the performance and quality of teaching of the teachers and suggested to the opposite party no.3 for payment of consolidated salary of Rs.2470/-per month to the petitioner till regularization of her service. Since her service had not been regularized, she made series of representations to the authority. While matter stood thus, she received the order on 6.6.1998 informing her the decision of the Governing Council of WALMI that only one Assistant Teacher would be entitled to the scale of pay and as such she is not entitled for regularization of service. She had been denied the honorarium. The further case of the petitioner is that she was appointed as Assistant Teacher on 2.9.1992, whereas Shri Swain was working as Junior Assistant on NMR basis was asked to manage the affairs of the Principal in addition to his own work. Since the post of Assistant Teacher is created, approved and sanctioned, she being the only appointee for the post, her services ought to have been regularized. Instead of regularizing her service, the opposite parties had taken steps for regularization of the services of Shri Swain in the said post. With this factual scenario, the writ petition has been filed. 3. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite party nos.2 and 3. The sum and substance of the case of the opposite party nos.2 and 3 is that Gopabandhu English Medium School was established in WALMI campus in the year 1992 in order to impart nursery education to the children of WALMI employees, who stay inside the campus. The School was set up on an experimental basis and was managed by a School Committee constituted by the Chief Engineer and Director, WALMI, opposite party no.2. The School was not managed, controlled or financed by the State Government. The Chief Engineer and Director, WALMI were the sole authority of the School. The opposite party no.2 constituted the School Committee to look after the day to day affairs and smooth functioning of the School. The School Committee had no administrative power at all. As per the staffing pattern, one Assistant Teacher was adequate to manage the School and teach the children. Accordingly, one NMR assistant was posted as Assistant Teacher in the School. The School Committee had no administrative power at all. As per the staffing pattern, one Assistant Teacher was adequate to manage the School and teach the children. Accordingly, one NMR assistant was posted as Assistant Teacher in the School. The petitioner was selected by the School Committee to work on voluntary basis and not by the Director, WALMI. It is further stated that in the 22nd Governing Council meeting of WALMI held on 24.12.1994, the Council desired to know the present strength of students enrolled in different classes of the School. It was pointed out that the total strength of students in three classes of LKG, UGK STD-I was only 27. The members of the Council resolved that it was not at all desirable to maintain the said School with meager strength of students by incurring huge expenditure, vide Annexure-C/2. It is further stated that pursuant to the decision of the 21st Governing Council meeting, the proposal for creation of one post of Assistant Teacher was approved. As per the staffing pattern, the primary classes had an Assistant Teacher. The post of Assistant Teacher had been filled up by the WALMI authority through an NMR Junior Assistant with requisite qualification. Pursuant to the 24th Governing Council meeting held on 12.12.1997, the post of Principal was abolished. After verification of the records, the opposite party no.2 came to a conclusion that since the total strength of students in the School was low, it was not at all desirable to maintain the School by incurring huge expenses. Under such circumstances, the Governing Council opined that except the post of Assistant Teacher, no other post of teacher was to be sanctioned in the School. In view of the same, the voluntary teachers were asked to exercise option for their continuance on voluntary basis or not. 4. A rejoinder affidavit has been filed by the petitioner. It is stated that under the WALMI project, there was a plan to set up a nursery School for imparting education to the little children of the staffs of the WALMI. The same was approved in the Governing Council meeting of WALMI held on 28.4.1992. The WALMI project is financed by the State Government. The School is a part of WALMI. The Chief Engineer and Director, WALMI are the sole authority of the School. The Governing Council is the authority of WALMI as well as the School. The same was approved in the Governing Council meeting of WALMI held on 28.4.1992. The WALMI project is financed by the State Government. The School is a part of WALMI. The Chief Engineer and Director, WALMI are the sole authority of the School. The Governing Council is the authority of WALMI as well as the School. The School Committee was constituted to look after the affairs of the School. The Committee appointed the petitioner as an Assistant Teacher on voluntary basis on the instruction/direction of the opposite party no.2. The matter was intimated by the President of the School Committee to the opposite party no.2 for regularization of service of all the voluntary teaching staff of the School. The opposite party no.4 had also recommended the name of the petitioner for payment of consolidated salary of Rs.2470/-till regularization of her service vide letter dated 24.6.1993. It is further stated that the Governing Council in its 21st Governing Council meeting dated 20.7.1994 approved for creation of two posts, i.e., Principal and Assistant Teacher with student strength of 20. In the next Council meeting held on 24.12.1994, the Council took a different view. The School was allowed to continue and in fact the School is functioning. It is further stated that the post of Assistant Teacher was created for the petitioner, but no action has been taken for regularization of service. Instead of regularizing her service, the post was filled up on ad hoc basis by one Shri K.C. Swain, NMR Junior Assistant, who was working as Principal of the School on NMR basis. Shri K.C. Swain was not appointed in due process of selection. His appointment had not been approved by the Governing Council or the President. 5. In course of hearing of the writ petition, an affidavit has been filed by the petitioner on 22.7.2016. It is stated that when the petitioner was appointed as Assistant Teacher, the post was not created. Therefore, the President of the School Committee had issued appointment order to the petitioner to work on voluntary basis as an Assistant Teacher. The Governing Council of WALMI in its 21st Governing Council meeting held on 20.7.1994 created one post of Principal and one post of Assistant Teacher in the School. The petitioner is working since 1992 and as such she is entitled to the benefit of approval and regularization of service. The Governing Council of WALMI in its 21st Governing Council meeting held on 20.7.1994 created one post of Principal and one post of Assistant Teacher in the School. The petitioner is working since 1992 and as such she is entitled to the benefit of approval and regularization of service. It is further stated that during pendency of the writ application, as per the data capture format under Unified District Information System for Education (U-DISE) published along with the School report card, the name of Gopabandhu English Medium School finds place in the website of the State Government and the name of Shri K.C. Swain and the petitioner are indicated as the teachers in the school. The School has been assigned a code number of 21121804752. The petitioner downloaded the same from the official website. Therefore, the School is continuing and the petitioner is also functioning as Assistant Teacher in the School. 6. An additional affidavit has been filed by the opposite party-WALMI on 26.7.2016. It is stated that the School do not exist w.e.f. April, 2002. As the number of students came down to four, on 23.03.2011 a policy decision was taken to close down the School. The policy decision was implemented on 12.4.2002. Thereafter S.C.B. Medical Public School was opened a new school w.e.f.5.5.2002 in the name and style of Gopabandhu Children’s Academy. After closure of the School, the services of the petitioner and K.C. Swain stood terminated. 7. Heard Mr. J.K. Rath, learned Senior Advocate for the petitioner and Mr. Bijan Ray, learned Senior Advocate and Mr. S.K. Nayak, learned Senior Advocate for the opposite parties. 8. Mr. Rath, learned Senior Advocate for the petitioner submitted that the petitioner was appointed as Assistant Teacher on the School on 2.9.1992 and continuing till today. When the petitioner was appointed, no post was created. In view of the same, she was appointed on voluntary basis. The Governing Council of the School in its 21st Council meeting held on 20.7.1994 created one post of Principal and one post of Assistant Teacher. Therefore, the services of the petitioner, who was appointed in the post of Assistant Teacher and continuing in the said post, ought to be regularized. He further submitted that the School in question is functioning till date. But then the opposite parties take a contrary stand to denude just claim of the petitioner. 9. Per contra, Mr. Therefore, the services of the petitioner, who was appointed in the post of Assistant Teacher and continuing in the said post, ought to be regularized. He further submitted that the School in question is functioning till date. But then the opposite parties take a contrary stand to denude just claim of the petitioner. 9. Per contra, Mr. Ray, learned Senior Advocate for the opposite parties submitted that the petitioner has no locus standi to maintain the writ petition. She was appointed as Assistant Teacher on voluntary basis. Further the School in question was closed w.e.f. April, 2002. Therefore, by efflux of time the writ petition has become infructuous. 10. The statement of facts and issues identifies three issues: (i) Whether the Gopabandhu English Medium School is functioning in the WALMI campus ? (ii) Whether the services of the petitioner can be regularized in the post of Assistant Teacher ? 11. Issue no.2 is dependent on issue no.1. In view of the same, issue no.1 is taken up. Issue No.1 12. Though Mr. Rath, learned Senior Advocate for the petitioner argued with vehemence that the School in question really exists, but on an anatomy of the pleadings of the parties and the documents, the submission is difficult to fathom. Be it noted that one Bhikari Charan Rout and four others including the petitioner have filed a writ petition being O.J.C. No.5428 of 2002 assailing the letter of the management of WALMI for discontinuance of admission of students into LKG, UGK and Standard-I classes in Gopabandhu English Medium School and the advertisement dated 3.2.2002 in the daily newspaper ‘The Samaj’ inviting the public enterprise/private organization/individual to take over the School. Pursuant to the direction made by a Division Bench of this Court in Misc. Case No.7096 of 2002 arising out of O.J.C. No. 5428 of 2002, the Registrar (Admn.) of this Court visited the School in question, held enquiry, recorded the statement of the witnesses for the petitioner including the petitioner and other independent witnesses. Thereafter he submitted a report with the following findings. Case No.7096 of 2002 arising out of O.J.C. No. 5428 of 2002, the Registrar (Admn.) of this Court visited the School in question, held enquiry, recorded the statement of the witnesses for the petitioner including the petitioner and other independent witnesses. Thereafter he submitted a report with the following findings. “(I) The Gopabandhu English Medium School is being run on the road side without any assistance from the WALMI Authorities; (II) The Principal of SCB Medical Public School does not look after the management and administration of this Gopabandhu English Medium School; (III) There has been fall in the management and administration as well as quality of education of the Gopabandhu English Medium School; (IV) The students of the Gopabandhu English Medium School are sitting in a pitiable condition on the road side, exposed to sun and rain to attend the classes. During heavy rain classes are being suspended at times; (V) The Gopabandhu English Medium School is without any management and administration at present. But the old students of the school continue to attend their classes in this school notwithstanding opening of a new school in another building by the Principal, SCB Medical Public School.” 13. The report shows that Gopabandhu English Medium School was without any management and administration. Another school, namely, S.C.B. Medical Public School had been opened. Gopabandhu English Medium School was being run on the road side. All the witnesses stated before the Registrar (Admn.) of this Court that the WALMI authorities locked the School building and the classes were going on the road side in front of the School. Krushna Chandra Swain, who was an Assistant Teacher in the School and became the Principal in charge of the School, stated that he continued to run the School in front of the School building. The students had attended the classes on road side in open air exposed to sun and rain and when it was not possible to take classes on the road side due to rain and bad weather, he used to take classes in his residence. The petitioner had also stated that during April, 2002, the WALMI authorities asked to discontinuance admission to all the classes. The said order was stayed by this Court. Despite the order of stay passed by this Court, the WALMI authorities locked the School gate and prevented the teachers and students from entering inside the School. The petitioner had also stated that during April, 2002, the WALMI authorities asked to discontinuance admission to all the classes. The said order was stayed by this Court. Despite the order of stay passed by this Court, the WALMI authorities locked the School gate and prevented the teachers and students from entering inside the School. The lock which was put prior to the order of stay had not been opened. Since then the students used to attend classes on road side being exposed to sun and rain. It is difficult to comprehend that the School is running on the road side and the students are exposed to sun and rain for the last sixteen years. The assertion of Krushna Chandra Swain that when it was not possible to take classes on the road side due to rain and bad weather, he used to take classes in his residence, is also difficult to fathom. 14. In view of the analysis made in the preceding paragraphs and on a cursory perusal of the affidavit filed by the Under Secretary to the Government of Odisha, Water Resources Department on 23.3.2011, the conclusion is irresistible that Gopabandhu English Medium School has been closed in April, 2002 and not in existence. 15. Since the School in question does not exist, the question of regularization of the services of the petitioner does not arise. Accordingly, the writ application is dismissed. There shall be no order as to costs.