Orissa High Court
Bibekananda Das vs State Of Orissa And Ors. on 27 June, 1997
Equivalent citations: 1997(1)ALT(CRI)11, 1997(II)OLR122
Author: S.C. Datta
Bench: S.C. Datta
JUDGMENT R.K. Patra, J.
1. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner who is an assistant teacher, prays for a direction to the opp. parties to release his salary, arrears as well as current, in the pay scale of untrained graduate teacher with effect from the date of his appointment. He has also sought for an appropriate writ for quashing the office order No. 1657 dated 8.2.1996 (Annexure-5) by which the Inspector of Schools has disapproved his appointment against the additional section on the ground that he does not possess the prescribed qualification to hold the post of trained graduate teacher.
2. For appreciation of the controversy raised in the case, briefly facts may be noted.
The petitioner came to be appointed as an assistant teacher on 3.11.1989 against an additional section of Class-X in Pipli High School which is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, 1969. He joined the service on 6.11.1939. At that time, he was a B.Sc. but was not trained. A circular has been issued by the State Government fixing the standard staff for a non-government High School according to which a trained graduate teacher is admissible to each of the additional section in Classes VIII to X. The circular further provides that for every additional section of Classes VIII to X taken together, one additional trained graduate teacher is admissible. Following the increase of roll strength in the school, the Managing Committee created an additional section in Class-X against which the petitioner was appointed. According to the petitioner; there is no bar for appointment and continuance of an untrained graduate teacher against a trained graduate post but so long as he is not trained, he would only be entitled to draw untrained graduate teacher scale of pay. The State Government in the department of School and Mass Education letter No. 17696 dated 1.6.1995 (Annexure-4) accorded its approval of the posts of additional section teachers in non-government aided High Schools in the State with effect from 7.6.1994 on the basis of the yardstick and roll strength as per the list enclosed to the said letter. At serial No. 10 of the list, the name of the petitioner finds place against Pipli High School, Pipli. The allegation of the petitioner is that although the State Government approved the post against which the petitioner was appointed, the Inspector of Schools has not released his salary in the scale of pay of untrained graduate teacher. He therefore prays for a direction to. release his salary, arrears as well as current, in the untrained graduate scale of pay with effect from the date of his appointment.
During the pendency of this petition, the Inspector of Schools issued office order No.1657 dated 8.2.1996 (Annexure-5) disapproving the appointment of the petitioner against the additional section on the ground that he has not acquired the prescribed qualification to hold the trained graduate teacher post. Consequently, the petitioner has made a prayer for amendment of the petition (vide Misc. Case No.9529 of 1996) to quash the said order. His prayer to amend the prayer was allowed by order dated 6.1.1997.
3. Counter affidavit has been filed on behalf of the opp. parties 1 to 3. The main thrust of objection taken in the counter affidavit is that the additional section was not created by the Government at the time of the petitioner's appointment and as he does not possess the requisite qualification, the Inspector of Schools rightly disapproved his appointment in view of the Government letter No. 1074/EYS dated 5.1.1991 (Annexure-C/3) and the Director's letter No.22345 dated 17.7.1995 (Annexure-B/3).
4. The learned counsel raised the following contentions in support of the petitioner's case :
(i) There is no bar for appointment of an untrained (graduate) teacher against a trained graduate post in a non-government aided High School. By such appointment, he will not, however, be eligible to draw trained graduate scale of pay but would be entitled to draw untrained graduate scale of pay; and
(ii) The State Government having approved the post of the petitioner against which he was appointed as per Government letter at Annexure-4, the Inspector of Schools went beyond his jurisdiction in disapproving his appointment basing on the Government letter dated 5.1.1991 (Annexure-C/3) in as much as the said Government letter is not available to be utilised against the petitioner, the same having been issued after his appointment.
In support of the aforesaid contention, the learned counsel for the petitioner placed reliance on different rules made under the provisions of the Orissa Education Act, 1969 and a number of decisions rendered by this Court. The learned Additional Government Advocate on the other hand submitted that the petitioner being admittedly an untrained hand, the Inspector of Schools rightly disapproved his appointment.
5. Before examining the rival contentions raised by the counsel for the parties, it would be appropriate to refer to certain undisputed facts. The Government in the Department of School and Mass Education letter No. 17696 dated 1.6.1995 (Annexure-4) approved a number of posts of additional section teachers with effect from 7.6.1994 in different schools as per the list enclosed to the said letter on the basis of the yardstick and roll strength of each school as on 7.6.1994. The concerned Inspector of Schools were instructed to approve the appointment of the incumbents reported to be continuing against such post subject to the fulfilment of three criteria referred to therein. At serial No.10 of the list enclosed to the said letter, the name of the petitioner finds place -There is clear mention that the petitioner was appointed in Pipli High School, Pipli on 6.11.1989 with his qualification as B.Sc.
6. Let us first examine if these are rules governing conditions of service for appointment as teachers in non-government aided High School, Rule 7(c) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (in brief, 1974 Rules') provides that the age and qualifications for appointment as teacher and for other posts would be the same as for similar or corresponding posts in educational institutions established and maintained by Government. It means that the conditions of eligibility for appointment to the posts of teachers and other posts in the State Civil Service would be applicable for appointment of teachers and for other posts in the said (non-government) educational institutions. The Orissa Subordinate Education Service (General Branch) Rules, 1972 (in brief, '1972 Rules') regulated the method of recruitment and conditions of service of the persons appointed to the posts of teachers and equivalent posts in Class-Ill of the State Civil Services. It may be mentioned here that the aforesaid 1972 Rules have now been repealed by a set of Rules called the Orissa Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 (in brief, '1993 Rules'). It was stated and admitted at the bar that after commencement of the aforesaid 1993 Rules (i.e. December 18, 1993) no person can be appointed as a teacher in a government as well as in a non-government (aided) High School without having the training qualification (B. Ed. degree or any other degree equivalent to it). Rule 7(d) of the 1972 Rules provided that the candidate must have passed the Bachelor's Degree or an equivalent examination of a recognised university. Rule 23 of the 1972 Rules dealt with maintenance of gradation list of persons appointed to the service. Under Sub-rule (2) thereof, the gradation list was required to be maintained in two parts, i.e. first part consisting of names of persons holding the degree of Bachelor in Education (B. Ed.) and second part consisting of names of persons who do not possess the degree of Bachelor of Education (B. Ed.). Rule 20 (2) of the 1972 Rules declared that a probationer who was a trained graduate would draw pay at the minimum of the time scale prescribed to untrained teachers from the date he joined the service. From the aforesaid, it would appear that there was no legal bar for appointment of an untrained teacher. Had there been any such bar, there would not have been any provision for maintenance of two gradation lists, one consisting of names of persons holding the B. Ed. degree and the other consisting of names of persons who do not possess such degree. The further provision that an untrained hand is eligible to draw untrained scale of pay reinforces that the 1972 Rules contemplated appointment of untrained hand subject to fulfilling of other eligibility criteria.
7. At this stage, let us revert to 1974 Rules. The proviso contained to Sub-rule (1) of Rule 16 states that the period of probation of an untrained teacher may be extended for a period not exceeding one year. Sub-rule (2) of Rule 16 thereof provides that no teacher who has not undergone the training prescribed for the post shall hold the post substantively, provided that an untrained teacher having not less than ten years of service shall undergo condensed in-service training provided by the Government and after successful completion of such training shall be eligible for confirmation and shall be entitled to draw salary of a trained teacher, provided further that a teacher attaining the age of 48 years shall be exempted from undergoing the training and shall be entitled to financial benefits of a trained teacher. Reading of the aforesaid provisions would show that the 1974 Rules contemplate appointment of an untrained teacher in aided (non-government) educational institutions.
8. In the foregoing paragraph, we have noted that after the coming into force of the 1993 Rules, there would be no scope for appointment of a person as a teacher without training qualification (B. Ed.) The 1993 Rules envisage two grades in the service junior grade and senior grade. The junior grade of service consists, inter alia, posts of assistant teachers of High Schools. Recruitment to the post in the junior grade of service is made by direct recruitment and promotion is provided in Rule 4. Rule 8(b) provides that a candidate must have obtained Bachelor's degree in Articles, Science or Commerce along with a degree of Bachelor of Education from a recognised University. This indicates that no person can be recruited to the service unless he possesses amongst other qualifications the degree of Bachelor of Education. We have referred to the 1993 Rules because some of the provision contained therein throw light on the issue involved in the present case. Although 1993 Rules have repealed the 1972 Rules, the position obtained or prevailing under the 1972 Rules has been allowed to continue under the 1993 Rules. Rule 28 of the 1993 Rules provides that gradation list of persons not holding degree of Bachelor of Education maintained before the commencement of the said Rules shall continue, to be maintained. Rule 30 of 1993 Rules even exempts an untrained teacher belonging to the junior grade service from undergoing training but he will not be placed in the gradation list of persons holding the degree of Bachelor of Education. For all the aforesaid reasons, we have no hesitation to hold that prior to the commencement of the 1993 Rules, an untrained teacher was eligible to be appointed against the trained graduate post with a restriction that he would not be entitled to draw trained graduate scale of pay.
9. At this juncture we may deal with the instruction issued by the Government in letter No.l074/EYS dated 5.1.1991(Annexure-C/3). On perusal of the aforesaid letter it would appear that the Government took note of the position that untrained teachers were being appointed in non-government (aided) High Schools and after taking note of such position, the Government clarified as follows :-
".....that henceforward untrained teachers should not be entertained in any Govt. High Schools......"
The direction of the Government in the said letter being prospective, it cannot be made applicable against the petitioner as he was appointed prior to the issuance of the letter.
10. Let us now turn to some of the Judgments and orders of this ourt referred to by the counsel for the parties.
In Sarat Chandra Sahoo v. State of Orissa, (O.J.C.No.3233 of 1989 disposed of on 10.7.1990) one of the questions which fell for consideration was whether under 1972 Rules, an untrained graduate could be appointed in the Junior Grade (Assistant Teacher). In paragraph-5 of the Judgment, the Court opined that there is no requirement in the 1972 Rules that appointment to the junior grade shall necessarily be of only trained graduates. By referring to Rule 7 and Rule 14 (2) of the 1972 Rules the Court held that requirement to the posts may be either of trained graduate or of untrained graduate.
Gouri Devi v. State of Orissa (O.J.C. No. 1024 of 1990 disposed of on 17.6.1993) the ratio of Sarat Chandra Sahoo (Supra) was followed "and by referring to another case in Muralidhar Pati v. State of Orissa (O.J.C. No.6165 of 1991 decided on 11.9.1992) this Court observed that there is no bar on the part of the Inspector in giving approval to the appointment of an untrained teacher though while approving he may insert a condition that the appointee unless acquires B. Ed. qualification within a specified period may be replaced by a trained hand. The Court observed that appointment of a teacher having graduate qualification may be lawfully approved and reasonable time may be granted to him for acquiring B. Ed. qualification, as B. Ed, qualification is necessary for a candidate to fill a permanent post of assistant teacher in a High School.
Anusuya Prusty v. State of Orissa (O.J.C.No.4972 of 1994 disposed of on 10.11.1994) the petitioner's grievance was with regard to non-payment of her monthly salary for a specified period. The claim was opposed by the State and its officials on the following two grounds:
(i) As she had not acquired the qualification of a trained graduate, she was not entitled to receive trained graduate scale of pay; and
(ii) She was ineligible to be appointed in view of the Government letter No. 1074/EYS dated 5.1.1991 (Annexure-C/3) in the present case.
The Court held that although the petitioner had not acquired the prescribed qualification of a trained graduate, she cannot be denied the untrained (graduate) scale of pay for the period in question. Regarding letter dated 5.1.1991 (Annexure-C/3), the Court held that it cannot operate as a bar against the petitioner as she was appointed prior to the issuance of the said letter.
The State Counsel on the other hand, by referring to order dated 1.2.1994 passed on O.J.C. No. 2564 of 1993 (Smt. Bindulata Mohanta v. State of Orissa) contended that the petitioner's appointment has rightly been dis-approved. In that case, the petitioner sought for a direction to approve her appointment against the sectional post. The Court found that before her appointment as a section teacher, the Managing Committee did not seek permission from the education authority for creation of sectional post on the basis of the roll strength of a particular class. In that view of the matter, the Court observed that the Managing Committee was not justified in appointing the sectional teacher by creating posts and passing on the financial burden on the educational authority. The said case is distinguishable in view of the clear fact that the State Government have already approved the post of the additional section teacher held by the petitioner in letter No.17696 dated 1.6.1995 at Annexure-4.
11. From the foregoing discussions, the following conclusions unhesitatingly emerge :
(i) During the relevant time, an untrained (graduate) teacher was eligible to be appointed as an assistant teacher in a non-government (aided) High School. He was not eligible to receive trained (graduate) scale of pay. Untrained (graduate), scale of pay, however, was admissible to him. The petitioner being a pre 1993 appointee, his appointment cannot be dis-approved merely because he does not possess the training qualification (B. Ed.)
(ii) the Government instructions contained in letter No. 1074/ EYS. dated 5.1.1991 at Annexure-C/3 cannot be a bar against the petitioner in view of the fact that he was appointed on 6.11.1989 prior to the issuance of the said letter; and
(iii) the State Government has already approved the post (with petitioner's name) against additional section in Pipli High School, Pipli.
12. In the result, we allow this petition by quashing the office order No.1657 dated 8.2.1996 (Annexure-5) passed by the Inspector of Schools, Puri so far as it relates to the petitioner. The Inspector of Schools is directed to approve the appointment of the petitioner with effect from 6.11.1989 and pay him the scale of pay of an assistant teacher (untrained graduate) with effect from the said date. The arrears if not already paid may be calculated and paid to him within a period of four months of receipt of writ. The Inspector of Schools will continue to pay to the petitioner the current salary in the untrained graduate scale of pay. We make it clear that the Inspector of Schools will give the petitioner reasonable time to enable him to acquire the B.Ed. qualification (unless he gets exemption under the relevant rules).
There would be no order as to costs.
S.C. Datta, J.
13. I agree.