Orissa High Court
Dhaneswar Nayak vs State Of Orissa And Ors. on 13 May, 1986
Equivalent citations: 1986(II)OLR113
JUDGMENT L. Rath, J.
1. The petitioner has come before this Court for the relief of getting declaration to have joined the Chachaji M. E. School, Chirulei, an aided educational institution, with effect from 1. 4. 1978 as a teacher and for payment of the arrear salary.
2. The petitioner's case Is that he was appointed as, a teacher by the Managing Committee of the School on 14. 8. 1972 and his appointment was duly approved by the Inspector of Schools on 14. 5. 1973. He made an application in 1976 to the Secretary of the Managing Committee to grant him study leave In case he Is selected to undergo training and on such application the Secretary endorsed ''no objection" in the event the petitioner is selected to undergo the training. The petitioner was selected by the District Selection Committee on 17-12-1976 to take admission in the Secondary Training School, Chhendipada as an in-service candidate which fact was communicated to the petitioner by the District Inspector of Schools, Dhenkanal, opp. party No. 2, in his letter dated 14-12-1976 directing him to report for admission on 15th or 16th of December, 1976. The petitioner made an application on the next day, i.e., 15-12-1976 to the Secretary, of the Managing Committee for grant of study leave from 16-12-1976 to the end of the training session, and on the very same day, the petitioner was relieved vide Annexure-3 to undergo the C. T. Training. The letter stated as follows :
"You are hereby relieved to undergo C. T. at Chhendipada S. T. School on 15-12-1976 at 4 p. m. It is for your information and necessary action.
Yours, faithfully, Sd/-Laxmidhar Hota, Secretary, Chachajee M. E. School, Chirulei, Dhenkanal."
After the petitioner's relief, opp. party No. 4 was appointed in his leave-vacancy which appointment was last approved by the Inspector of Schools till 3-4-1978. The petitioner intimated the Secretary of the Managing Committee by his letter dated 26-2-1978 (Annexure-4) with a copy of the District Inspctor of Schools (opp.-Party No 2) that his training would be completed or 31-3-1978 and as such, he should be allowed to join in his former post on 1,4.1978. Alongwith the Setter, the petitioner also enclosed a copy of circular No. 35-B-112-75/20981 dated 7.6. 1977 from the Additional Director of Public Instruction (B), Orissa, addressed to all the District Inspector of Schools and others. The District Inspector of Schools also intimated the Managing Committee in his letter dated 23rd March, 1978 that in accordance with the aforesaid Circular and another Government Order No. 16945 dated 10-5-1977, the petitioner should be allowed to join his former post and study leave should be granted to him since he was undergoing training upto 31-3-1978. It was also made clear in the letter that if the petitioner faced any difficulty in joining his former post, then the matter would be reported to the higher authority to dissolve the Managing Committee. The petitioner after completion of his training submitted his joining report on 1-4-1978 to the Secretary of the Managing Committee, but however, he was not allowed to resume his duties nor was he allowed to put his signature in the Attendance Register, by the Headmaster. The petitioner intimated the fact to the Secretary of the Managing Committee on 4-4-1978 with a copy to the opp. party No. 2 and further wrote to the opp. party. No. 2 on the, same day that since he had not been allowed to sign the Attendance Register and was also not allowed to join his former post, he was marking his attendance in a separate register kept by him and that he would, attend school regularly. Opp. Party No. 2 was however not able to secure the joining of the petitioner in the school as a consequence of which the petitioner has not been able to resume his duties The payment of the salary of the staff is made under the direct payment system but the bills of the pay of the petitioner were not prepared and sent for which he has not been able to receive his salary throughout.
3. A counter affidavit has been filed by opp. party No. 3, the Managing Committee-of the School, and the petitioner has also filed a rejoinder affidavit A counter affidavit has also been fifed by opposite parties 1 and 2. While the facts stated by the petitioner are not seriously disputed by the Managing Committee, it is however stated in their counter affidavit that on 15-12-1976 the Managing Committee considered the question of grant of study leave to the petitioner and resolved not to grant study leave to him. The petitioner who was present in the said meeting, knew the fact of refusal of grant of study leave but because of his anxiety to join the C. T. training course by the next day, he volunteered before the Managing Committee to relieve him from his job for good so that he could join the training course and accordingly he was relieved from his job by the Managing Committee. The relieve order in Annexure-3 was issued to the petitioner on the basis of the resolution of the Managing Committee and it was to the full knowledge of the petitioner that the study leave had been refused to him and that he was relieved from his job on that basis. On the basis of such stand it is the case of the Managing Committee that the petitioner voluntarily left his service and he is not entitled to come back to the school. Besides the petitioner had not been substantively appointed to the post and had no lien in the school. In the alternative it has also been contended by opp. party No. 3 that if the refusal to allow the petitioner to join his post ^mounts to termination of his service from the school, then it is an illegal termination of service for which an appeal lies before the State Educational Tribunal. The petitioner has not exhausted such remedy available to him under the Orissa Education Act and hence is not entitled to any relief under Articles 226 and 227 of Constitution of India.
4. The counter affidavit filed by opp. parties 1 and 2 does not disclose any positive stand taken by them except stating that the Managing Committee had not granted any study leave to the petitioner.
5. It is an admitted fact that the petitioner held an approved appointment in the school and that he having been selected by the District Selection Committee and directed to join the training on 15th or 16th of December, 1976, was relieved by the Secretary of the Managing Committee on 15-12-1976 in order to enable him to undergo C, T. Training. Though it has been stated in the counter affidavit that the petitioner was present in the meeting of Managing Committee held on 15-12-1976 and was aware of the fact that the Mg Committee resolved not to grant him study leave, yet the fact is not borne out from resolution of the Mg. Committee The Resolution Book was produced before the Court from Which it was seen that the proceedings of the meeting on 15-12-1976 was not signed by the petitioner. A Notice Book for the meeting was also produced by the opp. party No. 3 which shows that the petitioner received the notice issued on 15-12-1976 to the effect that a meeting of the Mg. Commetee would be held on the same day. No presumption arises from the notice that the petitioner attended the meeting held on that day. There is also no other record produced by opp. party No. to show that ..the petitioner was ever comnunicated the fact of refusal of study leave to him. The petitioner has filed as Annexure-11 a copy of his letter dated 22-12-1976 requesting the Secretary of the Mg. Committee to supply him a copy of the sanction order of the study leave with reference to his application dated. 15-12-1976, which would go to show that the petitioner was not in know of the fact of refusal of study leave to him. Two further letters of the petitioner, dated 17-1-77 and 8-2-1977 filed by opposite party No. 3 as Annexures-B/3 and C/3 respectively show the request of the petitioner that he had been relieved from the school on 15-12-1976 and for sanction of study leave from 16-12-1976 to the end of the training session 1976-78.
6. Since the petitioner was never communicated regarding the refusal of study leave to him and on the other hand he was relieved to undergo C. T. Training, it is but logical and proper that after completion of the training he should be allowed to join his former post. Refusal to allow birr, to join the school after the framing was an unauthorised and illegal act which is not sustainable in law.
7. Even accepting the plea of opp. party No. 3 that study leave was refused to the petitioner and that he was in know of the same and yet he got himself relieved to join the training course does not help the opp, party No. 3 in any manner. The petitioner admittedly held an appointment in the school. His service was statutorily protected under the provision of the Orissa Education Act, 1969 and could not have been terminated except with the prior approval of the Inspector of Schools as required Under Section 10-A of the Act. Refusal to allow the petitioner to join his former post after completion of the training would amount to termination of his service from the school. Even if a teacher remains unauthorisedly absent from the school, yet his service cannot Determinated simpliciter without the prior approval of the Inspector of Schools. It is open to the Managing Committee to proceed departmentally against the teacher concerned and impose suitable punishment upon him following the procedures prescribed under Rule 22 or Rule 23 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. But, however, short of such a proceeding the service of a teacher cannot be terminated without following the provisions of Section 10-A of the Orissa Education Act which requires the prior approval of the Inspector of Schools for the purpose. Not allowing a teacher to join back his former post after training amounts to termination of service as has also been decided by this Court in the case of Upendra Pradhan v. Secretary, Jagartnath Prasad M.S. School and Ors. (I.L.R. 1976. Cuttack 1047), The petitioner in that,case bad been relieved from the post of Headmaster to undergo training but after completion of the training was not allowed to join the post of Headmaster but was directed to join as an Assistant teacher. It was held that this amounted to termination of service of the petitioner from the post of Headmaster and that such termination was illegal and inoperative, in view of the provisions of Section 7 of Orissa Act 17 of 1974. The matter again came up for decision in the case of Duryodhan Tarai and Anr. v. Managing Committee of Patrisahi M.E. School and Ors. reported in I.L.R. 1978(2) Cuttack, where under almost similar circumstances the refusal to allow the teachers to re-join the school was treated as violative of Section 10-A of the Orissa Education Act. In another unreported case, OJC. No. 664 of 1976, decided on 26-4-1978, the Court even went still further. It was a case where a teacher of an aided educational school was selected to undergo B. Ed. training and applied to the Managing Committee for appropriate study leave. The request was rejected, his service was terminated, and in the vacancy caused due to termination of service another person was appointed. After the teacher completed the training he reported to duty, but his joining report was not accepted. The approval of the Director, Public Instruction (S) had not been obtained for such termination of service as required, by the amending Act of 1974. it was held that the order was illegal and the petitioner was bound to be taken back In service.
8. As a matter of fact the illegality of such course of action as has been adopted by opp. party No. 3 was also brought to the notice of all M. E. Schools amongst others in letter No. 35B-112-75/20981 dt. 7-6-1977 from the Addl. Director, Public Instruction(S), Orissa to all the district Inspector of Schools' and others annexed to the writ petition as Anmexture-9. It was categorically stated there that in some cases the managements have relieved the teachers to undergo training and such relief is being interpreted by those managements as termination of service. It was emphasised in the letter that such interpretation was legally wrong since it suffers from the infirmity that the concurrence and approval of the Circle Inspector of Schools had not been obtained. It was thus instructed that those teachers who wish to re-join their former posts after completion of training should, be allowed to do so.
9. In this view of the matter, it is indisputable that the petitioner's service was illegally terminated by opp. party No. 3 in refusing to allow him to join back his former post on completion of training. It must be held that the petitioner was entitled to join back his post with effect from 1-4-1978.
10. Faced with such difficulty, Mr. M. R. Mohanty, learned counsel appearing for opp. party No. 3 attempted to contend that the petitioner's relief from the school was an act of resignation and hence it must be held that he has no right to come back to the school once the Managing Committee has acted upon the resignation and appointed opp. party No. 4 In his place. The submission has no force. No such case is even made out in the counter affidavit of opp. party No. 3 and it is not open to advance a case of resignation for the first time at the hearing, stage. Besides the resolution Book which was produced contains no resolution to the effect that the petitioner had submitted any resignation even oral, if at all, and that such resignation was accepted by the Managing Committee.
11. Mr. Mohanty also further contended that the petition should be rejected since the petitioner has not exhausted the alternative remedy available to him in law. According, to Shri Mohanty, since the refusal to allow the petitioner to join the school after training amounted to termination of service which was in contravention of Section 10-A of the Orissa Education Act, it was for the petitioner to have availed the remedy of appeal before the State Education Tribunal and that having not done so, the petition must be rejected. It is. well-known that non-entertainment: of Writ petitions for failure to avail the alternative remedy is not a constitutional requirement but is more a matter of prudence and propriety. The rule of exhaustion of statutory remedies is not relating to the jurisdiction of the Court to entertain the petition, but is a matter of self-imposed restriction based on a rule of policy and discretion rather than a rule of law. The termination of service of, the petitioner -plainly was without jurisdiction and on the face of it void. No useful purpose would, have been served by compelling the petitioner to go before the alternate forum. A writ petition is maintainable without exhausting the statutory remedy where the act complained of is prima facie without jurisdiction.
12. In AIR 1961 S. C, 372 it was observed that :
"..,It is well-settled however that though the writ of prohibition" or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority, acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harasment, the High Courts it is well-settled, will issue appropriate orders or directions to prevent such consequences."
Though Their Lordships were discussing in the context of issue of writ of certiorari and order of prohibition, the observations apply with, full force to issue of writs of mandamus. Again in AIR 1961 S.C, 1606, negativing the contention raised by the Solicitor-General that the existence of an alternative remedy was a bar, to the exercise of jurisdiction under Art. 226. of the Constitution of India unless there was a complete lack of jurisdicticn in the officer or authority to take action impugned or when the order prejudicial to the writ petition has been passed in violation of the principles of natural justice, it was held that these two exceptions were by no means exhaustive and that even beyond them, a discretion is vested in the High Court to entertain petitions and grant relief notwithstanding the existence of an alternate remedy. Even a Bench decision of this Court reported in AIR 1979 Ori, 143 (Sarat Chandra Panda v. State of Orissa and others) held as follows :
"There does not seem to be any force in the contention of the contesting opp. parties that alternate remedy is available against the final order, because the objection of the petitioner is that the proceeding itself is without jurisdiction as the basic pre-condition of consultation with the financing Bank has not been satisfied before initiation of the proceeding. The material question for consideration, therefore, is whether petitioner's contention is acceptable."
13. The petitioner is thus entitled to the declaration of having joined the school since 1-4-1978 and deemed to be continuing in the school throughout.
14. The next point for consideration is besides being allowed, to join the school from 1-4-1978, to what other relief the petitioner is entitled. It has been disclosed by the. petitioner in his rejoinder affidavit filed on 17-8-1979 that since because of the refusal of the opposite party No. 3 to allow him to join the school, he took a temporary appointment in Chatipur M. E. School for a period of six months which ended by 31-.8-1979-.-,. During hearing it has also been disclosed by Mr. Rath appearing for the petitioner that the petitioner has been serving since October 1978 in Mandar L. P. School at Dhenkanal where he is still continuing. In, view of such fact the petitioner would not be entitled to receive the pay for the period he had taken up alternate employment to the extent of the amount received by him during such employment.
15. In the ultimate result, therefore, the petitioner is deemed to be continuing as a teacher in Chachaji ME. School; Chirulei, with effect from 1-4-1978, the date on which he gave ,his joining report on return from training. The opp. parties are directed to allow the petitioner to discharge the duties of a teacher in the said school. The petitioner is entitled to receive the arrear salary of a teacher with effect from 1-4-1978 excluding the amount he has in the meantime received having worked as a teacher in other schools. We would, therefore, call upon the petitioner to give a detailed account of the remuneration received by him from different schools till date since 1-4-1978 to opp. party No. 2 within a period of one month from to day and the said opp. party No. 2 will verify the correctness of the account given by the petitioner and would append a certificate to that effect and forward the same to the Managing Committee (opp. party No. 3) within a period of two months from the date of receipt of the account by the petitioner. Opp. party No. 3 would then take steps for preparation of the Bills of arrear salary after excluding the amount received by the petitioner, as aforesaid, within a period of one month from the date it receives the account of petitioner's beneficial employment during the period, from opp. party No. 2, referred to earlier, and within two months thereafter the petitioner shall be paid the balance arrear dues.
The writ petition is accordingly allowed with costs. Hearing fee is assessed at rupees two hundred.