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2018 DIGILAW 629 (ORI)

Balaji Sahu v. State of Odisha

2018-06-29

D.DASH

body2018
JUDGMENT These two appeals as at ‘A’ and ‘B’ have been filed under Section 24(C) of the Orissa Education Act, 1969 (for short, ‘the Act’). Both the appeals arise out of the Grant-in-Aid Case initiated by the appellant of the above appeal at ‘A’ disposed of by the learned State Education Tribunal, Bhubaneswar by order dated 16.03.2016. The other appeal at ‘B’ has been filed by the State. Therefore, those have been heard together for their disposal by this common judgment. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned before the Tribunal. 3. The case of the petitioner (appellant) of appeal at (A) is that being duly selected through proper selection process, on 27.12.2006, he was appointed as Sastri Pandit in Nilachal Narayan Ayurved Chatuspati, Puri which is an Aided Educational Institution within the meaning of section 3(D) of the Act imparting education upto Madhyama level. He joined on 01.01.2007. The petitioner thus having joined in the post continued as such and was also appointed as an Assistant Examiner by the Board of Secondary Education, Orissa, Cuttack. It is stated that the post of Sastri Pandit as against the Madhyama Stream is admissible for the institution as per the prescribed yardstick. In view of that, the Managing Committee of the institution (opposite party No. 5) recommended the case/claim of the petitioner for approval of his appointment and release of the salary under direct payment scheme. In response to the same, the Superintendent of Sanskrit Studies, Odisha (opposite party no.4) informed about the restrictions. The Opposite party No. 4 while informing the Head Pandit-cum-Secretary of the Institution vide letter dated 26.12.2011 that the State Government having imposed restriction on making adhoc appointment, pointed out that the petitioner’s appointment is not valid. Being aggrieved by the aforesaid communication, the petitioner made a representation to the opposite party No. 1. Since no action was taken upon the said representation, he filed the above noted Grant-in-aid Case before the State Education Tribunal questioning the order as regards non-approval of his service and non-payment of salary. 4. It is stated that as per the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational) Institution Rules, 1974 (for short called, ‘the 1974 Rules’), the opposite party no. 4. It is stated that as per the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational) Institution Rules, 1974 (for short called, ‘the 1974 Rules’), the opposite party no. 5 has got the power to make adhoc appointment and as such when the Selection Board candidates were not available for the Institution, which is a Sanskrit Institution, there was no option left for the opposite party No. 5 but to appoint the petitioner as Shastri Pandit. This appointment is said to have been done by following due process of selection and as such it is said that the appointment is not invalid or illegal. He further stated that he has a right to continue against an admissible post that he presently holds and is entitled to get the salary under Direct Payment Scheme as provided in Rule 9 of the 1974 Rules and the impugned order having been passed without taking into consideration all these above, is liable to be set at naught. It has further been stated that in view of the provision of 1974 Rules, authorizing the opposite party No. 5 to make appointment, the executive instruction of the Government, even if, there was any curtailing such power of opposite party No. 5, particularly, during non-availability of the candidate from the Selection Board, cannot override the Rule. Therefore, the prayer is to quash the order whereby the petitioner’s claim was not duly considered. It has also been stated that the petitioner has completed five years of continuous service in the post having requisite qualification and the post as such is admissible as per the provided yardstick. It has been stated that in similar cases, the opposite parties have allowed similar benefit, as is now claimed by the petitioner and as such the refusal of the benefit to the petitioner amounts to an act of discrimination and suffers from the vice of arbitrariness. 5. The opposite party no. 5 in the counter has supported the appointment and continuance of the petitioner in service in the Institution. The opposite party No.4 in reply has questioned the validity of the appointment of the petitioner. It is stated that, if at all, the petitioner has been appointed by the Managing Committee the resolution has not been cited in support of the same. The opposite party No.4 in reply has questioned the validity of the appointment of the petitioner. It is stated that, if at all, the petitioner has been appointed by the Managing Committee the resolution has not been cited in support of the same. So, it is stated that the appointment of the petitioner has rightly been not approved. While traversing the petition averments, it is stated that the opposite party No. 4 has never recommended the case of the petitioner and as such it is not correct to say so. As per rule-5 of the 1974 Rules, the Secretary of the Managing Committee of the Institution was required to submit an application to the State Selection Board with the copy to the concerned Inspector of Schools for the appointment in the vacancy in the teaching post which has not been done in the case and so also other follow up formalities have not been taken up. The Government being the final authority to take a decision in the matter, the same has not been taken in the case. That apart, before making any appointment, the Managing Committee although is requires to obtain the prior permission from the competent authority, the same has not been taken in the case of the petitioner. 6. The Tribunal in the backdrop of rival case as projected before it, going to decide the claim of the petitioner as regards the approval of his appointment and payment of salary under Direct Payment Scheme has first of all found that the Managing Committee of the Institution (opposite party No. 5) has not taken prior approval of the authority in the matter of appointment of the petitioner and has not sought for the assistance of the Selection Board as required under the Rules. With such factual finding, the Tribunal applying the ratio of the decision in case of State of Orissa and Others Vrs. Nabin Kumar Beura, 2011 (1) OLR 149 , has rejected the claim of the petitioner. But then following the course adopted the said case, it has directed the opposite parties without of course indicating specifically, whether it is the State-Opposite party or Managing Committee of the Institution-opposite party, to pay the admissible arrear salary to the petitioner towards the period, he has already rendered the service. But then following the course adopted the said case, it has directed the opposite parties without of course indicating specifically, whether it is the State-Opposite party or Managing Committee of the Institution-opposite party, to pay the admissible arrear salary to the petitioner towards the period, he has already rendered the service. The petitioner has thus been aggrieved by the rejection of his principal claim as regards approval of his appointment and payment of salary under Direct Payment Scheme has filed the appeal as at ‘A’. 7. The State has called in question the judgment on the score of directing the opposite parties to pay the salary to the petitioner for the period that he has already served asserting that once the appointment of the petitioner has been found to be in contravention of the provisions of the Act and Rules holding the field, the Tribunal could not have held the petitioner’s entitlement to salary for the period of service as covered more particularly saddling the liability on that account upon the opposite party-State. The State also claims that in any event, there arises no liability in the matter of payment of salary to the petitioner in so far as the State is concerned. 8. Learned counsel for the petitioner (appellant of the appeal at ‘A’) submitted that the Tribunal has refused to interfere with the order dated 26.12.2011 passed by the opposite party No. 4 mainly on the ground that prior approval was not obtained as provided under Rule 5(8) and (9) of the 1974 Rule for appointing the petitioner against the post of Sastri Pandit in the said Aided Institution. It is further submitted that the Tribunal in that view of the matter having relied upon the ratio of the decided case of Nabin Kumar Beura (supra) has rejected the prayer of the petitioner for approval of his service. It was submitted that rule-4 to 7 including rule 5(8) and (9) of the 1974 Rules have been repealed on 01.10.1992 and, therefore, the said rules have no application to the case of the petitioner as he was appointed on 27.12.2006 which is much after the repeal. It was submitted that rule-4 to 7 including rule 5(8) and (9) of the 1974 Rules have been repealed on 01.10.1992 and, therefore, the said rules have no application to the case of the petitioner as he was appointed on 27.12.2006 which is much after the repeal. It was submitted that the Tribunal has wrongly applied the provisions of rule 5(8) and (9) in so far as the petitioner’s case is concerned and has held that since the petitioner was appointed without prior approval, his appointment is in contravention of the said rules and as such illegal. Inviting attention of this Court to the factual settings of that Nabin Kumar Beura’s case, he submitted that Sri Beura was appointed on 19.07.1992 which is prior to the repeal of rule 5(8) and (9) of that Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational Institutions) Rule, which was made on 01.10.1992 and for that reason the Hon’ble Court in para-13 of the said judgment having taken note of the rule 5(8) and (9) of that 1974 Rules which were in force at the time of appointment of Sri Beura has held that the same having been made without prior approval, his appointment is bad in law and therefore the Court simply issued a direction to pay the salary of Sri Beura. He contended that the ratio decided in case of Nabin Kumar Beura (supra) has no application to the case in hand. He next submitted that as per the decision of this Court in Itisree Ray Vrs. State of Orissa and Others, 1997 (II) OLR 232, the Division Bench at para-7 and 8 relying upon various cases decided by the Court including the case of Arnapurna Panda Vrs State of Orissa and Others in OJC No. 55 of 1990 decided on 17.04.1990 as also Rule 8(2)(a) of 1974 Rules which is still in force has held that the Managing Committee has the power to give adhoc appointment in terms of 2(8)(a) of 1974 Rules pending appointment for a Selection Board Candidate and during that period the teacher is entitled to get the salary under the Direct Payment Scheme. Referring to para-7 of the said judgment of Arnapurna Panda (supra), it has been held that when the statute provides for an adhoc appointment, the State Government cannot issue executive instruction imposing the ban on appointment and such executive instruction cannot override the rule. In view of that, he urged that the Tribunal ought to have quashed the order relying upon the ratio of decision in case of Itisree Ray (supra) which is squarely applicable to the instant case and the petitioner has a right to continue against the post of Sastri Pandit in that Institution on adhoc basis till replacement by a Selection Board Candidate. According to him, the Tribunal failed to appreciate the judgment in case of Itisree Ray (supra) in its proper prospective and has erroneously held that the same does not come to the aid of the petitioner in so far as his claim in concerned. Referring to the decision in case of Pravati Kumari Udyasingh Vrs. State of Orissa, 1998 (1) OLR 520, he submitted that in that case the judgment of Itisree Ray (supra) having been relied upon, the Court directed the Managing Committee to allow the appellant therein to continue on adhoc basis till his replacement by a Selection Board Candidate. He submitted that the decision of Pravati Kumari Udyasingh (supra) has been confirmed by the Hon’ble Apex Court and so also the decision in case of Itisree Ray (supra) has not been interfered with. He next contended that even after repeal of rule-5 of Rule 1974 on 01.10.1992 although in respect of Colleges, the Selection Board Rules, 1992 have come into force and so far as regular appointment in the Schools are concerned, the Orissa Selection Board Education Rule, 1994 have came into force for regular appointment through Selection Board, yet no Selection Board Rules have been enacted in respect of Sanskrit Institutions, even till date and for that the adhoc appointments are being made even till now. In view of all these, he urged to quash the impugned judgment of the learned Education Tribunal and issue necessary directions as prayed for by the petitioner. 9. Learned Standing Counsel for the School and Mass Education Department submits all in favour of the judgment passed by the learned Education Tribunal. In view of all these, he urged to quash the impugned judgment of the learned Education Tribunal and issue necessary directions as prayed for by the petitioner. 9. Learned Standing Counsel for the School and Mass Education Department submits all in favour of the judgment passed by the learned Education Tribunal. He further contended that when the appointment of the petitioner has been held to be bad in law and as such illegal being in contravention of the provision of the Act and Rules, the direction to pay the salary to the petitioner for the period that he has served as such is untenable. He submitted that the Tribunal has rightly applied the ratio of the case of Nabin Kumar Beura (supra) in negating the petitioner’s principal prayer. According to him, the Tribunal is at fault having not specifically directed as to which of the opposite parties has to shoulder the burden of paying the salary to the petitioner for the period, he has served and according to him, in any case, the State cannot be saddled with the liability on that score and that needs clarification with specific direction on that score. 10. In view of the above rival submissions, the first consideration arises as to whether the Tribunal has rightly refused to issue a direction to approve the service of the petitioner in the said Institution as prayed for and the finding on that score if would receive affirmation or rejection. Then only the next question regarding the tenability of the order of the learned Tribunal as regards payment of salary and if so which of the opposite party is to shoulder the said burden would arise for being addressed and answered. Admittedly the institution in question has been notified as an Aided Institution before the date of appointment of the petitioner and his joining on 01.01.2007 pursuant to the order dated 27.12.2006 of the Managing Committee of the Institution (opposite party No. 5). Sub-Rule (5),(6),(7),(8) and (9) have been repealed with effect from 01.10.1992 and admittedly at the time of appointment of this petitioner, the said Rules as those stood earlier were not in force. The joining of the petitioner and his continuance in that post for all these period is not in dispute. In case of Pravati Kumari Udyasingh (supra), the appointment was made on a stopgap arrangement until sponsoring of a Selection Board Candidate. The joining of the petitioner and his continuance in that post for all these period is not in dispute. In case of Pravati Kumari Udyasingh (supra), the appointment was made on a stopgap arrangement until sponsoring of a Selection Board Candidate. This having been taken note of, the Tribunal had said that the appointment of the present petitioner here in the case has not been made as a stopgap arrangement due to non-availability of a sponsored Selection Board Candidate and rather has been made on a regular basis and next it has taken note of the fact that the opposite party No. 4 has not given any requisition to the Selection Board showing the necessity of filling the vacancy against which the petitioner has been appointed. In that way said case of Pravati Kumari Udyasingh (supra) has been distinguished. Placing on record the case of Majhipada M.E. School vs. State of Orissa and others 1992 (1) OLR 447 the Tribunal has stated that the Assistant Teacher therein was appointed temporarily and continued as such till he was appointed as the Headmaster of the School, first on adhoc basis and then permanently by order dated 04.04.1987 and the School received the Grant-in-Aid on 01.08.1987. So in that case, the claimant had been appointed prior to the School being notified as an Aided Institution and therefore, the Managing Committee having terminated the service of the claimant, the Tribunal set it at naught as it was not with the prior approval of the Competent Authority which was upheld. Therefore, it has been said by the Tribunal that the said case does not come to the aid of the present petitioner. The Tribunal in the instant case has found the petitioner to have been appointed after the Institution was notified as an Aided Institution and without obtaining any prior approval and without seeking of the Selection Board as required under the Rules and for placement of a candidate. Therefore, it has found the case of the petitioner to be squarely covered by the ratio decided in case of Nabin Kumar Beura (supra). In view of the repeal of rule 5(8) and (9) with effect from 01.10.1992, here the petitioner’s appointment cannot be said to be per se illegal. Therefore, it has found the case of the petitioner to be squarely covered by the ratio decided in case of Nabin Kumar Beura (supra). In view of the repeal of rule 5(8) and (9) with effect from 01.10.1992, here the petitioner’s appointment cannot be said to be per se illegal. In case of Nabin Kumar Beura, (supra) the appointment was on 19.07.1992 which is prior to the repeal of rule 4 to 7 including rule 5, 8 and 9 of the 1974 Rules which were holding the field then at the relevant point of time. This Court in that case has relied upon the non-repealed provision contained in rule 5 and 8 of the 1974 Rules. In case of Itisree Ray (supra), this Court relying upon the case of Arnapurna Panda (supra), as also Rule 8(2)(a) of the 1974 Rules, now also in force has found the Managing Committee to be having the power to give adhoc appointment in terms of the said rule pending appointment of a Selection Board Candidate and has accordingly held that the teachers concerned are entitled to get the salary under the Direct Payment Scheme. This Court relying upon the judgment in case of Itsree Ray (supra) and referring to the same, in that case of Pravati Kumari Udyasingh (supra) has directed the Managing Committee to allow the applicant therein to continue on adhoc basis till her replacement by a Selection Board Candidate. 11. Fact also remains that even after the repeal of rule 5 with effect from 01.10.1992 altough in respect of Colleges, the Selection Board Rules, 1992 and in respect of Schools the Selection Board Rules, 1994 have come into force in so far as the regular appointments are concerned, through Selection Board, no such Selection Board Rules have been enacted in respect of Sanskrit Institutions in the State. Therefore, the appointment of such teaching staff in the Institution by the Managing Committee has to be taken to be on adhoc basis as otherwise for such non-framing of the Rules, the Aided Institution’s functioning in imparting education cannot come to stand still or even closure which is more so, as in case of one admissible post, as in this case where the factual aspect of the case that this petitioner is the only Sastri Pandit working in the said institution is not in dispute. Moreover, the opposite party No.4 having come to know about this state of affair as to the appointment of the petitioner as Sastri Pandit in that Aided Institution as yet has taken no step at all to fill up the same as per the provisions of Act and Rules, which admittedly is the only admissible post as per yardstick on the face of the factual position that the Institution has been continuing to run with the compliance of all the other mandatory legal formalities meant for the purpose. Keeping in view all the aforesaid, the conclusion of the Tribunal relying upon the ratio of the decision in case of Nabin Kumar Beura (supra) that the appointment of the petitioner is illegal, in my considered view cannot sustain. 12. For the aforesaid discussion and reasons, the impugned judgment passed by the State Education Tribunal is hereby set aside and accordingly, the appeals stand disposed of directing the opposite parties (respondents) to approve the appointment of the petitioner against the post of Sastri Pandit in the said Institution with effect from the date of his joining with his entitlement to all the admissible financial and other benefits and so as to continue as such till he is replaced by posting of the Selection Board Candidate in his place. Appeals disposed of.