Orissa High Court
Jagannath Sahoo vs State Of Orissa And Ors. on 16 March, 1995
Equivalent citations: 1995(I)OLR582
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. The orders of the State Government communicated in the letter dated 7-3-1991 of the Special Officer-cum- . Deputy Secretary to Government to the Director, Secondary Education . Orissa (Annexure-8) and in the letter dated 9-6-1993 of the Deputy Secretary to Government in the Department of Schools and Mass. Education to the Director, Secondary Education, Orissa (Annexure -10) and the order of the Deputy Director (NGS) Orissa dated 9-11-1993 (Ahnexure-1 1) are sought to be quashed in this application filed under Articles 226 and 227 of the Constitution of India.
2. The controversy raised in this case relates to inter se seniority between the petitioner, Jagannath Sahoo and opp. party No. 5, Gayadhar Majhi as trained graduate teacher and promotion to the post of Headmaster of the 0.T.M. High School at Choudwar, an aided educational institution within the meaning of Section 3 (b) of the Orissa Education Act Both of them were Assistant Teachers of the said school. In the order as per Annexure-8, the State Government decided that opp. party No. 5 being senior to the petitioner should remain in charge as Headmaster of the School until further orders. In the order as per Annexure-10, the Government decided that opp. party No. 5 is eligible to draw Headmaster's scale of pay with effect from 1-8-1985 and in the order of the Deputy Director (NGS), Orissa as per Annexure-11, opp. party No. 5 was provisionally promoted to the post of Headmaster with effect from 1-8-1985 under Rule 8(2)(b) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of the Aided Educational Institutions) Rules, 1974 ( hereinafter referred to as 'Recruitment Rules').
3. The relevant facts necessary for determination of the point in dispute may be stated thus :
On being appointed by the Managing Committee, the petitioner joined as sectional trained graduate teacher on 20-8-1986 and has been continuing in the post since then. Opp. party No. 5 joined as a trained graduate teacher on 18-7-1966 and continued as such till 1-3-69 when the conversion trained graduate post, which he was holding was abolished. Thereafter, he drew the scale of pay admissible to a trained Intermediate teacher till 27-1-1975, when he was adjusted in the newly created 5th trained graduate post in the school and since then he has been drawing trained graduate scale of pay. On 1-8-1985 the Managing Committee decided to promote him to the post of Headmaster and recommended his case to the Director for approval. He (opp. party No. 5) remained as in-charge Headmaster of the School. When the petitioner represented to the Inspector of Schools, Cuttack-I Education Circle and the Director, Secondary Education against the action of the Managing Committee in treating opp. party No. 5 as Senior to him and recommending his case for promotion as Headmaster on that basis, the Inspector of Schools in his letter to the Director dated 26-8-1987 (Annexure 1) recommended that the petitioner may be promoted to the post of Headmaster since he has drawn the scale of pay of a trained graduate teacher throughout since his appointment on 20-8-1966, whereas the opposite party No.5 had drawn trained Intermediate scale from 1-3-1969 to 27-1-1975.But subsequently ' in the letter dated 31-12-1987 (Annexure 2), the Inspector of Schools. Cuttack-I Circle again wrote to the Deputy Director revising his previous opinion and suggested that since opp. party No. 5 was in fact getting salary of a trained graduate teacher from the management though he was adjusted against a trained intermediate post between 1-3-1969 to 28-1-1975, he cannot be said to have lost his seniority. . He sought for the order of the Director whether the petitioner or the opp, part No. 5 will be promoted to the post of Headmaster of the school. The Director, as evident from the letter of the Deputy Director (NGS) dated 19-5-1988 (Annexure-3), decided that the petitioner who had been continuously working as trained graduate teacher against an additional section since 26-8-1966 was senior to opp. party No. 5 who was working against a trained graduate post continuously only from 28-1-1975. He instructed the Inspector of Schools to ask the Managing Committee to consider the case of the petitioner for promotion to the post of Headmaster taking into account his suitability for the post. In pursuance of the instruction of the Director, the Inspector in his letter dated 28-5-1988 asked the Secretary of the School to put up the letter of the Deputy Director dated 19-5-1988 before the Managing Committee for an appropriate resolution for promoting the petitioner to the post of Headmaster. The Director in his letter dated 26-9-1988 to the Secretary of the School (Annexure -5) also communicated his decision that the petitioner was declared senior to opp. party No. 5 and therefore his decision for review of his over dated 19-5-1988 does not arise. As it appears from the letter dated 1-6-1989 of the Inspector of Schools to the Director (Annexure-6) that at when the Managing Committee of the school had declined to promote the petitioner as Headmaster, the Inspector sought instruction of the Director regarding the a cure of action to the taken against the Managing Committee for non-compliance of the instructions of the department, the matter was reported by the Deputy Director (NOS) to the Secretary to Government of Orissa, in the Education and Youth Services Department, vide letter dated 20-10-1989 (Annexure-7). The State Government, as evident from the letter of the Special Officer-cum-Deputy Secretary to Government (Annexure-8), held that opp. party No.5 being senior of the two (petitioner and opp. party No.5) is entitled to remain in charge of the post of Headmaster and should continue to remain in charge of the said post until further orders. This was followed by the order enabling him (opp. party No. 5) to draw Headmaster's scale with retrospective effect (Annexure-10). Consequential order of promotion which was passed by the Director is Annexure-11. Hence the grievance of the petitioner.
4. Regarding the inter se seniority between petitioner and opp. party No. 5, the uncontroverted factual position shows that while the petitioner was continuing in a trained graduate post drawing trained graduate scale of pay right from the date of his appointment on 20-8-66 in the school, the opp. party No.5 was not holding a trained graduate post between 1-3-1969 to 27-1-75 during which period he was holding a lower post of trained intermediate teacher and was drawing salary as admissible to such a post. Further, the Inspector and Director on consideration of the service particulars of the two teachers had held the petitioner to be senior to opp. party No. 5. Subsequently the decision was reversed on the sole ground that during the break period, 1-3-69 to 27-1-75, the Managing Committee of the school was reimbursing opp. party No. 5 the differential pay between the trained intermediate and trained graduate scales. But it is not the case of the opp. party nor have the authorities also held that opp. party No. 5 was discharging duties as a trained graduate teacher during the said period. In the circumstances, there was no rational basis and acceptable ground for holding the opp. party No.5 to be senior to the petitioner as a trained graduate teacher. The previous decision of the Inspector and the Director in the matter was just and proper. However, this point has lost its importance since the petitioner has in the meantime retired from service.
5. That brings us to the crucial question of promotion to the post of Headmaster of the school. The uncontroverted factual position is that opp. party No. 5 was promoted to the post of Headmaster under Rule 8 (2) (b) of the Recruitment Rules, 1974 which was approved by the State Government in October, 1989 vide Annexure-7. Rule 8 (2) (b) provides for promotion by the Managing Committee of an employee of the institution from a lower teaching post to a higher post with the prior approval of the concerned Director if he possesses the prescribed qualifications and experience and his performance in respect of the post he holds, has been found to be satisfactory. After introduction of Sub-rule (3) of Rule 8 in June, 1988 such promotion to the post of Headmaster is not permissible. Rule 8 (3) lays down that vacancies in the posts of Headmaster of aided High School shall be filled up by the eligible trained graduate teachers of respective categories of High Schools belonging to the common cadre from the select list prepared by the Selection Board on the basis of the seniority in the common feeding cadre and performance. Construing the provisions in Sub-rules (2) (b) and (3) of Rule 8 this Court held that after introduction of Sub-rule (3) of Rule 8 the. promotion of trained graduate teachers of aided High School as Headmaster of the same school by the Managing Committee was not permissible. [See 1990 (II) 0 L R 533 Kailash Ch. Champati v. State of Orissa and others and 1993 (I) 0 L R 303, Golakh Chandra Mohanty and Ors. v. State of Orissa and Ors. (FB) Therefore, the Managing Committee had not power to promote the opp. party No. 5 as Headmaster of the School under Rule 8 (2) (b) and the Director was not authorised to approve such appointment. The consequential position is that the post of the Headmaster of the School must be taken to be vacant and must be filled up in accordance with the provision in Rule 8 (3) of the Recruitment Rules. However, in order to avoid dislocation in day to day management of the School the ppp. party No. 5 may continue as in-charge Headmaster of the School till the post is filled up in regular manner by the concerned authority.
The writ application is disposed of in the manner aforesaid. There will be no order for cost.
K.L. Issrani, J.
6. I agree.