Orissa High Court
Kailash Chandra Mishra vs State Of Orissa And Ors. on 17 June, 1991
Equivalent citations: 1992(II)OLR4
JUDGMENT S.C. Mohapatra, J.
1. Hope of being Headmaster in Teisipur M. E. School, an Aided Educational Institution governed under the Orissa Education Act, 1969 (hereinafter referred to as 'the Act') having been frustrated by the District Inspector of Schools', petitioner has filed this application under Article 226 of the Constitution of India for issue of an appropriate writ.
2. Petitioner being a trained graduate teacher in the school is eligible to be Headmaster. Managing Committee which is the appointing authority has also been satisfied about suitability of petitioner and has passed resolution for his appointment as Headmaster. Condition of service as provided in the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational Institutions) Rules, 1974 (hereinafter referred to as 'the Rules') having required prior approval of the Director, proposal was sent by the Managing Committee to the District Inspector. In reply, District Inspector has allowed petitioner to be Headmaster in-charge. This is grievance of petitioner.
3. Petitioner was appointed on 1-1-1967 before the Act and the Rules came into force as a teacher in Teisipur M. E. School when he was a Matriculate without training. In course of time, he became a trained graduate in the month of December, 1978. In view of his higher qualification petitioner was placed just below the Headmaster giving higher seniority by resolution of the Managing Committee dated 22-7-1939. When post of Headmaster of the school fell vacant from. 1-8-1990 as Khetramohan Parida, Headmaster retired on attaining age of superannuation, petitioner was the only teacher available in the school eligible to be appointed as Headmaster. Managing Committee in its resolution dated 9-8-1990 appointed him as Headmaster with effect from 1-8-1990 and sent it to the District Inspector of Schools for necessary approval. On 22-11-1990, District Inspector intimated the Managing Committee as per Annexure-7 that petitioner is to act as Headmaster in- charge.
4. Mr. J.K. Rath, learned counsel for the petitioner assailed Annexure-7 as being without jurisdiction, unreasonable and unjustified. Mr. P.K. Mohanti, learned Additional Government Advocate, however, submitted that under the present scheme, a common feeding cadre is to be prepared consisting of trained graduate teachers of aided High Schools and Headmasters of aided Middle Schools in the circle as envisaged under Rule 8 (3) of the Rules for consideration of appointment of Headmasters of aided High Schools and accordingly, petitioner having obtained his B. Ed. degree only in 1978, cannot be promoted as Headmaster to come to the common feeding cadre earlier than other trained graduates in other aided Middle Schools who have become trained graduates earlier and yet have not become Headmastets. Mr. Mohanti has relied upon Letter No. 166/90-2745 (3) EYS dated 18-1-1990 of the State Government which is to the effect that post of Headmasters in aided Middle Schools are to be filled up on regular basis by candidates selected by Selection Board. In order to appreciate rival contentions, scheme of the Act and the Rules are to be examined
5. Before the Act came into force on 15-10-1969 management of aided Middle Schools were not governed by any law. A set of executive instructions called the Orissa Education Code were the basis for administration of aided Middle Schools. In OJC No. 383 of 1966 decided on 10-11-l967(Chakradhar Samal and Anr. v. Inspector of Schools, Cuttack Circle), this Court held on that basis of Article 41 of the Code, Inspector of Schools has no authority to interfere with Private School and it is open to a Managing Committee sought to be reconstituted not to respect the order of dissolution and it is open to the members of the Managing Committee to carry on the management of the school in the way they desire. In ILR 1968 Cut. 383 (Sribatsa Kanungo and Ors. v. Board of Secondary Education and Ors. ) referring to the earlier decision it was observed :
"It is now the settled-position of law that the Orissa Education Code has no statutory force. The so-called Articles in the Code are not framed either under any statutory enactment or under any provision of the constitution. They are merely in the nature of administrative instructions for the guidance of the Department and are purported to have been issued under the executive power of the State."
Finding that actions taken under the Code have been declared as illegal as the Code does not have any statutory support as a result of which, it became increasingly difficult for the Government to fulfil their responsibility for management of educational institutions and other matters and further finding that it is not possible to take adequate and timely measures to prevent mismanagement of non-government institutions, a Bill was introduced in State Legislative Assembly on basis of which the Act came to the Statute Book with the object of providing for the better organisation and development of educational institutions in the State as seen from the Preamble. Section 27 (4) provided that provisions of the Orissa Education Code which were in force immediately prior to the Act coming into force in so far as they are not inconsistent with the provisions of the Act or of the Constitution shall be deemed to be rules made under the Act until rules are made.
6. Management of educational institution includes appointment of teachers including Headmasters. Under the Code before the Act came into force Managing Committee was to select and appoint. Section 7 (1) of the Act provides that every private educational institution shall have a Managing Committee constituted in accordance with rules made in that behalf. Article 305 of the Code provided that an aided school shall have a representative Managing Committee. Headmaster of a school is a member of the Managing Committee.
7. Under Article 316 of the Code standard staff of a Middle School shall have a Headmaster who is trained Intermediate. In 1972 when State Government made rules under Article 309 proviso of the constitution for recruitment of members of Subordinate Education Service (General Branch) including Headmaster of Middle Schools established and maintained by Government, it provided that Headmaster of such school shall be a trained graduate. The Act provided in Section 10 that conditions of service of the staff of aided educational institutions shall be as may be prescribed. The rules were made in 1974 in that respect. It came into force on 1 -4-1975 from which day provisions of the Code in that regard lost their statutory force. Rule 7 provides that the staff of aided educational institutions shall have the same qualification as the staff of institutions established and maintained by State Government. Thus from 1-4-1975, Headmasters of aided Middle Schools were required to be trained graduates. However those Headmasters who have already been appointed could not have been disturbed in absence of any statutory provision in that regard. This was clarified by State Government in 1980 while deciding a question under Rule 28 of the Rules as to the scale of pay that would be admissible to Headmasters of Middle Schools who are trained graduates.
8. Under the rules normal mode of recruitment of staff including Headmaster is through selection by a Selection Board as provided in Rule 5. In Rule 5(8) it is provided that with prior approval of the Inspector appointment can be made for six months or till a candidate of Selection Board is available whichever is earlier. In case, extension of such appointment beyond six months becomes necessary. State Government is required to approve, the same. Power is vested in the Managing Committee under Rule 8 (1) to fill up a vacancy by a person on deputation from State Government. Managing Committee was also given power under Rule 8 (2)(a) to appoint for a period not exceeding three months in a vacancy arising out of relinquishment of charge or removal of an employee. Rule 8 (2) (b) however vested power to appoint an employee of the school to a post in the same school carrying higher scale of pay with prior approval of the Director.
9. When the Rules came into force on 1-4-1975, specific provision was made in Rule 10 for promotion to the post of Headmaster. Where there is specific provision, the general provision would not be applicable. Accordingly, general provision in Rule 8(2)(b) was not applicable in matter of appointment of Headmasters from among employees of a school. Rule 10 read as follows:
"The Selection Board shall be consulted in cases of promotion to the rank of Headmasters of Schools and in all cases of promotion of College teachers from one rank to the other".
This provision had a short span of life to govern the field. On 3rd September, 1976, it was substituted as follows :
"Promotion to the rank of Headmaster of Schools, Readers and Principals of Colleges shall be given with the prior approval of Government."
Thus, consultation with Selection Board was no more necessary and prior approval of Government was to be obtained. Operating in the field till 10-12-1981, it was repealed. From that day specific provision not being available, general provision in Rule 8 (2) (b) operated in matter of appointment of an employee of the school as Headmaster with prior approval of the Director. Rule 8(2)(b) was' amended on 25-10-1976 from which day Government was to give prior approval and not the Director.
10. From the aforesaid discussions, it is clear that since 10-12- 1981, Headmaster of a Middle School could be appointed by the Managing Committee by direct recruitment of a candidate selected by the Selection Board and till such a candidate is available any person eligible under Rule 7 could be appointed for six months with prior approval of the Inspector which temporary appointment could be extended with prior approval of the State Government. Managing Committee was also vested with power under Rule 8(1) to get an employee of State Government on deputation to be the Headmaster and such person was to be deputed in accordance with the Rules of Government in respect of its employees. Managing Committee was vested with power to appoint a person eligible as Headmaster for a period not exceeding three months under Rule 8(2) (a) where the vacancy was on account of relinquishment of charge or removal of the Headmaster. Managing Committee had also power to appoint any of its employees in lesser scale of pay as Headmaster in higher scale who possesses the prescribed qualification and experience and whose performance in respect of the post he holds, before such appointment to the higher scale of Headmaster has been found satisfactory. This appointment was required to be made with prior approval of the Government. Thus, Managing Committee had the choice to fill up the post of Headmaster in any of the manners as stated earlier. This choice of exercise of power by the Managing Committee was not fettered by any other provision in the Act or the Rules and no other authority had power to interfere with the power of the Managing Committee to choose the mode one way or the other. However, State Government was not bound to depute an employee even if Managing Committee decided to fill up the vacancy by deputation. Similarly, State Government had no power to impose one of its employees on deputation to be appointed by the Managing Committee where Managing Committee decided to fill up the post otherwise. Actions of State Government as well as of the Managing Committee were expected to be reasonable for better organisation and development of the educational institution which is the object of the Act.
11. When this position continued. Rule 8(2)(b) was substituted on 16-3-1984 and in case of schools. Director was again made the approving authority.
12. Four years after, on 16-3-1988, Rule 8(2) and (3) was substituted. Earlier to it all appointments of employees of the same institution to posts carrying higher scale of pay were governed under Rule 8 (2) (b) and all temporary appointments for a period not exceeding three months were governed under Rule 8(2)(a). Rule 8(3) was a restriction on age of the persons to be appointed. By substitution, restriction of age was abolished. Vacancies in posts of Headmasters of High Schools and Readers including Principals of Aided Colleges were governed under Rule 8 (3). No specific provision was made in respect of filling up vacancies in post of Headmasters of Middle Schools. Rule 8 (2) (b) which is in respect of all posts other than the posts specified in Rule 8(3) also impliedly include post of a Headmaster of Middle School. Rule 8(2)(a) vested wider power on Managing Committee for making appointments restricting the time limit as was before, Rule 8(2) as substituted read as follows :
"8. Exceptions to Selection by the Board ;-
(1) Nothing in these rules shall apply to posts filled up by persons on deputation from Government.
(2) Notwithstanding anything to the contrary in these rules it shall not be necessary to apply to or submit any appointment made by the Managing Committee or Governing Body to the Selection Board; if-
(a) The appointment is made on ad hoc basis for a period not exceeding three months; or
(b) the vacancy in a post, carrying higher scale of pay, is filled up with prior approval of Government in case of a College and the concerned Director in case of an institution other than a College, by an employee of the same institution who possesses the prescribed qualification and experience and whose performance in respect of the post he holds, has been found satisfactory. Such appointment shall be treated as regular appointment from the date, the same is filled up on ad hoc basis by the Managing Committee or the Governing Body, as the case may be, in the event of its approval by the competent authority ;
(3) xx xx xx"
13. Thus, as the position of law stands now Managing Committee is the statutory authority entrusted with the duty of proper management of an aided private Middle School. Such management includes power of appointment of staff including Headmaster. Appointee is to be a person eligible as provided in the rules. Managing Committee, Director, Inspector. District Inspector and State Government have been vested powers under statute. Each is to exercise only that power which is vested in it and in the manner provided therein or not at all. In case the power is not exercised or is execised beyond the norms of law, it affects proper management and defeats object of the Act which has made provisions for better organisation and development of educational institutions. Choice of mode of filling up a vacancy is of the Managing Committee. No other authority has power to interfere with the said choice. Accordingly, State Government has no power to restrict the choice of Managing Committee to file up vacancy of Headmaster by a candidate selected by the Selection Board. In this case, Managing Committee decided to appoint petitioner in the lower scale of pay as Headmaster having higher scale of pay under Rule 8(2)(b). By letter dated 18-1-1990, State Government had acted beyond the power vested in it to restrict the choice of the Managing Committee. In case, petitioner could have been appointed by Managing Committee on ad hoc basis for a perio not exceeding three months under Rule 8(2)(a) which required no approval at all. District Inspector had no authority under the Act or the Rules to allow petitioner to be Headmaster in charge which is not envisaged under law. Since District Inspector had no power of approval, he would have either returned the proposal to the Managing Committee or forwarded the same to the Director who is the approving authority. This principle has been laid down in the decision of this Court reported in 42 (1976)CLT 319 (Ranganath Misra v. State of Orissa and Ors. ). . ......
14. Under the Rules, a teacher has no obligation to remain in charge of Headmaster and discharge higher responsibility without any additional remuneration where he is not willing to accept the same. No power is vested either with the Managing Committee or any educational authority to entrust him with such duty. A school is required to have a Headmaster. Headmaster of a Middle School has various statutory functions. He is the ex officio member of the Managing Committee under Rule 3 of the Orissa Education (Management of Private Schools) Rules. 1980. He is the ex-officio Joint Secretary who is to discharge functions of the Secretary in any absence or vacancy. Secretary is to convene meeting of the Managing Committee. Being body of individuals, a Managing Committee is to discharge its duty in meetings. Without meeting being convened there is no scope for the Managing Committee to exercise its power and discharge its functions. When a Managing Committee is constituted under Rule 4(3), there is no Secretary or President who are to be elected in a meeting. Function of Headmaster becomes important then. As Joint Secretary is to convene a special meeting either on requisition of seven members or an emergent meeting on requisition of the District Inspector for that purpose. Besides, Headmaster is the disciplinary authority in respect of lower grade employees of the school. It goes without saying that indiscipline in a school affects the school itself. Headmaster is to give instructions and pass orders which are to be carried out by the employees. He is to report about performance of other employees on which their confirmation depends. He is to initiate assessment of performance of teachers for maintaining confidential character rolls. He is to grant casual leave and special casual leave to other employees. Besides the above. Headmaster of the School has many other functions under the Statute. A person in charge of Headmaster has no right to exercise the statutory powers. Therefore, post of Headmaster is required to be filled up as soon as possible. To meet such situation, power to appoint on ad hoc basis not exceeding three months has been vested in the Managing Committee. So that within that period, a Headmaster can be regularly appointed.
15. I would not have hesitated to declare petitioner to have been appointed on adhoc basis from 8-9-1990 for a period not exceeding three months which comes within the scope of resolution of that day. However, resolution of the Managing Committee in respect Of appointment of petitioner is not valid since petitioner participated in the meeting as is seen from Annexure-6. In AIR 1970 SC 150 (A. K. Kraipak and Ors. v. Union of India and Ors. ) participation in the meeting of a person whose case is being considered has been decided to be invalid. So far as decision in respect of appointment of Headmaster of aided Educational Institution, in 32 (1990) OJD (S & L) 60 (Ananda Sahu v. State of Orissa and Ors. ) and in OJC No. 687 of 1990 (Managing Committee, Mohammadpur- Biswanathpur Girls' High School, Cuttack v. State of Orissa and Ors. ) decided on 17-5- 1991, this Court came to the same conclusion. Accordingly resolution (Annexure-6) not being valid petitioner cannot be treated to have been appointed as Headmaster. Resolution which is basis of the claim of petitioner being invalid. Managing Committee is required to reconsider the question of appointment of Headmaster in light of discussion in this decision.
16. In conclusion:
(a) A private Middle School shall have a Headmaster which ought not to be kept vacant In view of the statutory functions which a Headmaster is required to perform which cannot be so performed by any person who is kept in charge of Headmaster since Statute does not provide for such arrangement.
(b) When post of Headmaster falls vacant it can be filled up by the Managing Committee only in accordance with the Rules.
(c) Managing Committee is to decide whether it would appoint the Headmaster, a person- '
(i) for a period not more than three months on ad hoc basis in exercise of power under Rule 8(2)(a) of the Rules;
(ii) a candidate selected by Selection Board under Rule 5 of the Rules and till such a candidate is available to appoint an eligible and suitable person for six months after obtaining prior approval of the Inspector in exercise of power under Rule 5(8) of the Rules, or
(iii) on deputation from State Government in exercise of power under Rule 8(1) of the Rules, or
(iv) who is an employee of a Middle School in a lesser scale of pay, with prior approval of the State Government.
(d) Managing Committee is to decide taking into consideration the time to be consumed in processing regular appointments, to appoint a Headmaster on ad hoc basis for a period not exceeding three months.
(e) Where Managing Committee intends to appoint under Rule 8 (2)(b) of the Rules or even under Rule 8 (2)(a) of the Rules, the employee likely to be appointed shall not participate in the proceeding of the Managing Committee if he happens to be a member of the Managing Committee.
(f) State Government, Director, Inspector and the District Inspector for have no power to interfere with the decision of the Managing committee in respect of the mode In which a Headmaster is to be appointed in absence of any provision as the Act or Rules authorising such interference.
(g) If State Government intended that Headmaster of Middle School is to be appointed from out of candidates selected by Selection Board, provision has to be made in the Rules to that effect. Without such provision. State Government has no power to issue circular which would cause interference with the exercise of power by the Managing Committee.
17. In the result, writ application is allowed to the extent indicated above. Annexure-6 the resolution of the Managing Committee appointing petitioner as Headmaster and letter dated 18-1 -1990 of the State Government as well as Annexure-7 the letter dated 22-11-1990 of the District Inspector allowing petitioner to be Headmaster in charge are declared to be invalid. No costs.
J.M. Mahapatra, J.
18. I agree.