Orissa High Court
Sri Sangram Kumar Nayak vs State Of Orissa Represented Through The ... on 15 November, 2017
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C). No.18638 of 2015
In the matter of an application under Article 226 and 227 of the Constitution of India.
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Sri Sangram Kumar Nayak ...... Petitioner
- Versus-
State of Orissa represented through
The Commissioner-cum-Secretary,
Department of School and Mass Education,
Orissa, Bhubaneswar, Khordha and others ...... Opposite Parties
For Petitioner : M/s. Prasanna Kumar Pattanayak &
S.K. Nanda.
For Opposite Parties : Mr. B. Mohanty,
Standing Counsel for School & Mass
Education Department
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PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 15.11.2017
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S. N. Prasad, J.This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the relief has been sought for the direction upon the opposite parties for regularization of the service of the petitioner as Zilla Parishad Primary Teacher (ZPT) w.e.f. 13.03.2013 with all financial benefits by quashing the order dated 24.08.2015 passed by the opposite party no.4-the District Project Coordinator, S.S.A., Kandhamal. 2
2. The brief fact of the case of the petitioner is that he was recruited by the District Selection Committee and initially engaged as Sikshya Sahayak vide order dated 02.03.2007, while continuing, was implicated in a criminal case of kidnapping of minor girl in Green Badi Village of Daringibadi Block and accordingly, F.I.R. has been instituted being Daringibadi Police Station Case No.27 dated 03.06.2007. Hence, he was disengaged from service vide order dated 01.05.2008 w.e.f. 23.05.2008 due to his involvement in criminal case.
The petitioner had to remain silent and waited for the result of the criminal case in which he has been acquitted from the charges vide judgment dated 2.5.2009. The petitioner thereafter has filed a representation before the District Project Coordinator, S.S.A., Kandhamal for his reengagement and the District Project Coordinator, S.S.A., Kandhamal has passed an order for reengagement vide order dated 4.5.2010 in the stipulation that he will not be entitled to get remuneration for the absent period from 08.10.2007 to 06.05.2010 and the said period will be treated with the principle "no work no pay". Accordingly, the petitioner was reengaged and started discharging his duty.
3. The grievance of the petitioner is that under the guideline, the provision has been made for taking the Sikshya Sahayak as Junior Teacher, if the Sikshya Sahayak has found to be made in continuance service for a period of 3 years and after working for 3 years, the said Sikshya Sahayak is to be taken into regular establishment as Assistant Primary Teacher. 3
4. According to the petitioner, since he has been reengaged vide order dated 4.5.2010 and as such, the period when he was opt for service is to be regularized for the purpose of counting his continuing in service so that the said period may be taken for the purpose of continuing his 3 years period for taking him as Junior Teacher. The petitioner has filed a representation in this regard, but the same has been rejected vide order dated 24.8.2015 with the observation that he has been given the status of Junior Teacher w.e.f. 2.5.2013, i.e., after 3 years of continuous satisfactory engagement as Sikshya Sahayak from the date of reengagement, i.e., from 4.5.2010.
5. Petitioner, being aggrieved with the said decision, is before this Court by way of this instant writ petition for redressal of his grievance to count the period when he has opt for engagement and by counting the said period he may be treated as Junior Teacher.
6. The opposite parties have filed counter affidavit through the District Project Coordinator, S.S.A., Kandhamal-opposite party no.4 wherein the ground has been taken that the Government through School & Mass Education Department has issued a resolution on 10.1.2008 wherein the provision has been made under Clause-10 to the effect that the Sikshya Sahayak after completion of 3 years continuous satisfactory engagement will be eligible for appointment as Junior Teacher by Zilla Parishad on contractual basis with the consolidated remuneration of Rs.3,500/- per month w.e.f. 1.12.2007 subject to certain conditions, namely:- 4
"(i) The Sikshya Sahayak (SS) must have rendered 3 years of continuous service satisfactorily from the date of engagement;
(ii) The Sikshya Sahayak (SS) must have ensured 90% attendance of children in respective schools in all classes;
(iii) The Village Education Committee must have given positive certificates about attendance and performance of the SS in the schools for the last 3 years.
(iv) The Sikshya Sahayak (SS) must not have any adverse reports during last 3 years of service in the school as SS. They must have ensured Minimum Level of Learning (MLL) for the students as prescribed by the competent authority; and
(v) The Sikshya Sahayak (SS) must have reduced the drop out of children of Primary and Upper Primary School to below 10%."
7. Learned counsel for the petitioner submits that although the petitioner has been reengaged, but since he has not discharged active duty for the said period, it cannot be counted towards counting the period to take him as Junior Teacher reason being that the guideline stipulates to assess the performance and if it is found satisfactory, then only a Sikshya Sahayak after rendering 3 years of service satisfactory can be considered for taking as Junior Teacher.
He further submits that the satisfactory performance also means as per the guideline that the Sikshya Sahayak must have ensured 90% attendance of children in respective schools in all classes and each and every Sikshya Sahayak is to be assessed by the Village Education Committee, who shall give a positive service before renewal of the contract, since Sikshya Sahayak is being engaged on contract basis for one year subject to its renewal and if found discharging duty satisfactory, when the petitioner is 5 lacking as because the period when he was out of service, his assessment cannot be said to be satisfactory due to not in service during the relevant period.
8. Heard the learned counsel for the parties and perused the documents available on record.
9. This Court, before going into the factual aspect of the case, thought it proper to refer the guideline dated 10.1.2008 issued by the School & Mass Education Department.
The said resolution has been issued by the State Government for appointment of Sikshya Sahayak, who shall be engaged in Panchayat Raj Block Unit wise by the Zilla Parishad by a Selection Committee to be headed by the Collector-cum-Chief Executive Officer, Zilla Parishad as Chairman. The Sikshya Sahayak is to be engaged on contract basis for a period of one year subject to renewal of his services depending upon satisfactory performance of service. The provision has been made in the guideline that the Sikshya Sahayak after completion of 3 years of continuous satisfactory engagement, he will be eligible for appointment as Junior Teacher by the Zilla Parishad. The authorities, before considering as Sikshya Sahayak to be taken as Junior Teacher, is to assess the following conditions:-
"(i) The Sikshya Sahayak (SS) must have rendered 3 years of continuous service satisfactorily from the date of engagement;
(ii) The Sikshya Sahayak (SS) must have ensured 90% attendance of children in respective schools in all classes;6
(iii) The Village Education Committee must have given positive certificates about attendance and performance of the SS in the schools for the last 3 years.
(iv) The Sikshya Sahayak (SS) must not have any adverse reports during last 3 years of service in the school as SS. They must have ensured Minimum Level of Learning (MLL) for the students as prescribed by the competent authority; and
(v) The Sikshya Sahayak (SS) must have reduced the drop out of children of Primary and Upper Primary School to below 10%."
10. It is evident from the said condition that the purpose of 3 years of continuous satisfactory engagement is to assess one or the other Sikshya Sahayaks that the Sikshya Sahayak must have ensured 90% attendance of children in respective schools in all classes. The Village Education Committee must have given positive certificate about attendance and performance of the Sikshya Sahayak in the school for the last 3 years, the Sikshya Sahayak must not have any adverse reports during last 3 years of service in the school as Sikshya Sahayak, they must have ensured Minimum Level Learning for the students as prescribed by the competent authority, and the Sikshya Sahayak must have reduced the drop out of children of Primary and Upper Primary schools not below 10%. It has been further provided that candidates not fulfilling the criteria contained in para-10 shall not be considered for appointment as Junior Teachers by the Zilla Parishad.
It is further evident from the said provision of the resolution that before taking a Sikshya Sahayak as Junior Teacher, the active discharge of duty is mandatory requirement. Since the words "continuous satisfactory 7 engagement" means that, if a Sikshya Sahayak is not in continuous service, then his performance would not be assessed regarding ensuring 90% of attendance, certificate he cannot get from the Village Education Committee and there cannot be any report regarding his performance from the concerned school and there will be no report regarding drop out of students of Primary and Upper Primary School to below 10%, meaning thereby the satisfactory performance in continuity is mandatory condition.
11. Here it also needs to refer that the satisfactory continuous engagement means the experience part and an experience can only be obtained by one or the other employees while in active service.
12. So far as the fact of the instant case is concerned, the petitioner, admittedly, has opted for service on account of his disengagement from service w.e.f. 1.5.2008 till 4.5.2010 on account of his involvement in a criminal case. However, in the same, he has been acquitted.
It is also admitted position that the petitioner has not challenged his disengagement order dated 1.5.2008, rather he has waited for more than the period of 2 years for outcome of the criminal case.
13. It is evident from the conduct of the petitioner that he has taken no endeavour questioning the legality and propriety of the disengagement order dated 1.5.2008. The authority, after acquittal in the criminal case, has reengaged him vide order dated 4.5.2010 subject to the conditions that he will not get the remuneration for the absent period and that period is treated 8 as "no work no pay" meaning thereby the said period has not been counted towards any monetary benefit to the petitioner.
It is further evident from the resolution that the post of Sikshya Sahayak is purely a contractual engagement to be made for a period of one year subject to its renewal, if the service is found satisfactory on the basis of certificate given by the Village Education Committee.
It is further evident that after satisfactory discharge of duty for a period of 3 years as Sikshya Sahayak is to be taken as Junior Teacher. The period of 3 years has been taken by the authority while taking the petitioner as Junior Teacher from 4.5.2010 and after completion of 3 years from that date, he has taken as Junior Teacher. Now, the petitioner claims to count the period from the date of his initial engagement, but that cannot be said to be a reasonable argument taking into consideration the nature of engagement as also admittedly the petitioner was out of service from 1.5.2008 to 4.5.2010 and he has been reengaged after remaining out of service for a period of more than 2 years. The guideline stipulates that the Sikshya Sahayak can be taken as Junior Teacher, if one has performed 3 years of continuous satisfactory engagement.
The stipulation made as continuous satisfactory engagement denote that one has to be in active service for the purpose of assessment of his performance as indicated in the conditions as referred above. If one or the other Sikshya Sahayaks will not be in service, the performance can be assessed and merely on account of the fact that continuity if given, the same 9 cannot be a ground to take one or the other Sikshya Sahayaks as Junior Teachers reason being that in absence of active service, the satisfactory performance cannot be assessed.
14. This Court, after taken into consideration the reason mentioned hereinabove and the provision of the guideline, is of the considered view that the petitioner has failed to make out a case.
Accordingly, the writ petition fails and it is dismissed.
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S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 15th November, 2017/D. Aech