Orissa High Court
Brajabandhu Mallick vs State Of Odisha & Others ... Opposite ... on 4 March, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.14680 of 2013
(Application under Articles 226 and 227 of the Constitution of
India)
Brajabandhu Mallick ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Sidheswear Mallik,
Advocate.
-versus-
For Opposite Parties
: Mr. S.N.Patnaik, A.G.A
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
04.3.2025.
Sashikanta Mishra,J. The Petitioner was appointed as Headmaster of Police High School, Phulbani as per the resolution dated 14.7.1986 of the Managing Committee W.P.(C) No. 14680 of 2013 Page 1 of 10 of the School. The School, at the relevant time, was a private educational institution managed by the District Police with the S.P., Phulbani being the President of the Managing Committee. The School received grant- in-aid w.e.f. 01.6.1994. The appointment of the Petitioner as in-charge Headmaster was approved by the erstwhile Inspector of Schools, Phulbani vide order dated 01.11.1995 for the purpose of releasing grant-in- aid. It is stated that as per yardstick, one post of Headmaster was admissible to a High School. On 31.3.1997, the Managing Committee in its resolution recommended for payment of Headmaster's Scale of Pay to the Petitioner as he had completed 7 years of experience calculated from 16.7.1993. Since then the Petitioner has been continuing in the post of Headmaster, but the scale of pay attached to the post was never paid. Since persons similarly situated were paid the scale of pay attached to the post of Headmaster, the Petitioner, being deprived has approached this Court with the following prayer; W.P.(C) No. 14680 of 2013 Page 2 of 10
"Under the aforesaid facts and circumstance the petitioner humbly prays that this Hon'ble Court may graciously be pleased to;
(1) Direct order that the petitioner shall be allowed Headmaster's scale of pay with effect from 1.6.1994 i.e. the date on which the School received grant-in-aid.
(2) Pass such other orders as may be deemed fit and proper in the interest of justice."
2. Counter affidavit has been filed by the District Education Officer (Opposite Party No.3). It is, inter alia, stated that the Petitioner's claim of being appointed as Headmaster is not correct. The requisite qualification and experience of Headmaster of unaided recognized/private High School is trained graduate in Arts or Science with minimum 7 years of teaching experience having B.Ed. qualification. Further, the Government in the department of School and Mass Education vide their letter dtd.12.9.2007 have stipulated that after 1977, the Headmaster, if appointed in any unaided recognized/private High School should have 7 years of teaching experience after B.Ed. qualification and before 1977, he should have only 7 years teaching experience. The petitioner was W.P.(C) No. 14680 of 2013 Page 3 of 10 appointed after 1977 and did not possess the requisite teaching experience at the time of his appointment. Being the Senior most teacher, he was kept in-charge of Headmaster to manage the day to day affairs of the School. Law stipulates that the post of regular Headmaster shall be filled up either by transfer from common cadre or from the select list prepared by the State Selection Board. Thus, appointment of persons made against said post by the Managing Committee out of their own selection cannot be treated as valid. It is further stated that the recommendation made by the Managing Committee for allowing the pay scale of Headmaster to the Petitioner from the date of completion of 7 years is not valid. The petitioner is not entitled to the pay scale of Headmaster as per Rule 8(3) of Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institution) Rules, 1974 and Rule 19(1) of the Odisha Selection Board (Education Circle) Recruitment Rules, 1994.
W.P.(C) No. 14680 of 2013 Page 4 of 10
A further affidavit has been filed by the District Education officer, Kandhamal clarifying therein that as per the settled position of law, the Headmaster-in- charge is not the same as the Headmaster of the School. Even when such appointment has been approved, the appointee cannot claim to be continued as Headmaster or held entitled to get the scale of pay attached to the post of Headmaster. In the absence of 7 years teaching experience after training qualification, the Petitioner cannot be said to have acquired any right for being appointed as regular Headmaster and therefore, the resolution passed by the Managing Committee is invalid.
3. Heard Mr. Sidheswar Mallik, learned counsel for the Petitioner and Mr. S.N.Patnaik, learned Addl. Government Advocate for the State.
4. Mr. Mallik would argue that the minimum requirement for promotion to the post of Headmaster was 7 years teaching experience. The Managing Committee therefore, passed resolution recommending regular appointment of the petitioner as Headmaster W.P.(C) No. 14680 of 2013 Page 5 of 10 on his completion of 7 years' experience. Mr. Mallik further submits that law is well settled that if a person is promoted to higher post or made to officiate in that post, he is normally entitled to salary of that post. In this context Mr. Mallik has cited the judgments of the Supreme Court in the case of State of Punjab and another vs. Dharam Pal1, Secretary-cum-Chief Engineer, Chandigarh vs. Hari Om Sharma and others;2 and Selvaraj v. Lt. Governor of Island, Port Blair and others;3. Mr. Mallik has also referred to Rule 96 of the Odisha Service Code and submits that the Petitioner having officiated in the post of Headmaster right from the date of his appointment, is entitled to the pay scale of regular Headmaster.
5. Per contra, Mr. S.N.Patnaik would argue that the requisite qualification and experience of Headmaster of an unaided recognized/private High School is trained graduate in Arts/Science with minimum 7 years of teaching experience having B.Ed. qualification. The 1 AIR 2017 SC 4438 2 1998 SC 2909 3 (1998) 4 SCC 291 W.P.(C) No. 14680 of 2013 Page 6 of 10 Government letter dtd.12.9.2007 also stipulates that any person appointed as Headmaster in such Schools after 1977 should have 7 years of teaching experience after B.Ed. qualification. The Petitioner was admittedly appointed after 1977 and did not possess the requisite teaching experience at that time. Being the Senior most teacher he was only kept in charge. Mr. Patnaik, further refers to the judgment passed by the Supreme Court in the case of Pabitra Mohan Dash and others v. State of Orissa and others;4 and the case of State of Orissa and others vs. Subhranta Ku. Mohanty and another;5 in support of his contentions.
6. The facts of the case being as narrated herein before, need not be gone into in detail again. It would suffice to note that the Petitioner was appointed on 14.7.1986 as Asst. Teacher. On the same day, as per resolution passed by Managing Committee, he was appointed as Headmaster. Obviously, this cannot be treated as a regular appointment, but an officiating arrangement, in which capacity the Petitioner's 4 (2001) 2 SCC 480 5 (2003) 12 SCC 53 W.P.(C) No. 14680 of 2013 Page 7 of 10 services were approved for the purpose of admitting the institution to grant-in-aid w.e.f. 01.6.1994. The Managing Committee further resolved on 31.3.1997 to approve his selection as Headmaster for the purpose of getting the pay scale of the post from the date of his completion of 7 years in the School.
7. It would be apposite at this stage to refer to letter dtd.12.9.2007 of the Government in Department of School and Mass Education addressed to the Director, Secondary Education, Odisha. Said letter is extracted herein below;
"I am directed to say that as per the Chapter-IX of the Regulation of the Board of Secondary Education, Orissa, Cuttack a School seeking to open Class-IX shall be required to fulfil ere certain conditions before opening Class-IX. Out of these conditions, one stipulation is that the Headmaster of the School should be trained Graduate in arts or science with minimum 7 years of teaching experience after B.Ed. training.
It has been settled in the High Court and Apex Court that after 1977 the Headmaster if appointed in any Unaided recognized/Private High Schools then he should have 7 years of teaching experience after training and before 1977 he should have only 7 years teaching experience at the time of appointment. During the meeting of the HPC, It was found that many such private Institutions seeking permission and recognition do not have Headmasters with such qualification.
You are therefore requested to make scrutiny of each application for grant of permission/recognition and submit a report as to whether they have W.P.(C) No. 14680 of 2013 Page 8 of 10 Headmasters with the above qualification at relevant time or not for consideration at Govt. level regarding amendment of Board's regulation if necessary.
This matter may be expedited and proposal be submitted to Govt. for necessary action."
Thus the requirement is, after 1977 any person appointed as Headmaster in any unaided recognized/private High Schools should have 7 years of teaching experience after training. The Petitioner was admittedly appointed after 1977. It is not disputed that he did not possess the requisite teaching experience after training. Law has been set at rest in this regard by the Supreme Court in the case of Pabitra Mohan Dash (Supra) wherein the following has been observed;
"It is not disputed that with effect from 29-5-1977 Regulation 17 in the Board of Secondary Education has been brought into force which makes it obligatory for every institution to have a Headmaster who must be a Trained Graduate and must have 7 years of teaching experience as a Trained Graduate Teacher. If subsequent to 29-5-1977 any appointment has been made to the post of Headmaster contrary to the aforesaid provisions of the regulation then the said appointment would be invalid appointment and would not confer any right on the appointee.
xxx xxx xxx xxx xxx xxx xxx A person who has been appointed as Headmaster-in- charge cannot claim any right on the basis of that appointment even if the same might have been approved by any competent educational authority. The in-charge Headmaster is not the same as the Headmaster of the school and it merely entitles a person to remain in charge and discharge the duties of W.P.(C) No. 14680 of 2013 Page 9 of 10 a Headmaster. In this view of the matter where the appointment itself has been to the post of Headmaster as in-charge and such appointment had been approved, obviously the said appointee cannot claim to be continued as Headmaster or to be entitled to get the scale of pay attached to the post of Headmaster."
8. Thus, in view of the undisputed facts of the case and the position of law as settled by the Supreme Court, this Court is left with no doubt that the Petitioner's claim for grant of regular scale of pay attached to the post of Headmaster has no legs to stand. Further, on facts, the judgments relied upon by the Petitioner are not applicable.
9. For the foregoing reasons therefore, this Court finds no merit in the Writ Petition, which is therefore, dismissed. There shall be no order as to cost.
................................
Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Mar-2025 11:03:36 W.P.(C) No. 14680 of 2013 Page 10 of 10