Orissa High Court
Sri Partha Sarathi Dash vs State Of Orissa And Others on 11 April, 2014
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) No.19323 of 2010
In the matter of an application under Articles 226 and 227 of the Constitution of
India.
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Sri Partha Sarathi Dash ......... Petitioner
-versus-
State of Orissa and others ......... Opposite Parties
For petitioner : M/s. K.P.Mishra, S.Mohapatra, T.P.Tripathy &
L.P.Dwivedy
For opp. parties : Mr.A.K.Pandey, Standing Counsel (SME).
(O.Ps. 1 to 3)
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 13.03.2014 | Date of judgment : 11.04.2014
Dr. B.R.Sarangi, J.The petitioner has filed this petition challenging the order dated 24.9.2010 passed by the Commissioner-cum-Secretary, Government of Odisha, School and Mass Education Department under Annexure-14 refusing to approve the post of Assistant Teacher held by the petitioner on the plea that the post of Trained Graduate (Arts) of Labani Devi Ucha Vidyapitha, Santara in the district of Jajpur has been abolished. As a consequence thereof, the petitioner has been denied grant-in-aid.
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2. The short fact of the case in hand, is that pursuant to the resolution passed by the Managing Committee of Labani Devi Ucha Vidyapitha, Santara dated 26.3.1984, the petitioner was appointed as an Assistant Teacher on 27.7.1984, pursuant to which, he submitted his joining report on 31.7.1984 and as such, he has been continuing in the post till the school became eligible to receive grant-in-aid on 10.11.1995 giving effect from 1.6.1994. Pursuant to such grant-in-aid, all the posts of teaching and non-teaching staffs in the school except that held by the petitioner have been approved for receiving grant-in-aid. The Trained Graduate post held by the petitioner has not been finalized due to the case filed by one Prafulla Kumar Nayak, Assistant Teacher who assailed his order of termination before the Director, Secondary Education and thereafter before this Court in OJC No. 8262 of 1996. Due to non-sanction of grant-in-aid, the petitioner had also approached this Court by filing OJC No.99 of 1997 and the Managing Committee of Labani Devi Ucha Vidyapitha also filed OJC No.100 of 1997 assailing the order of the Director, Secondary Education. In all these three writ applications, i.e. OJC No. 8262 of 1996 filed by Prafulla Kumar Nayak, OJC No.99 of 1997, filed by the petitioner and OJC No.100 of 1997 filed by the Managing Committee of Labani Devi Ucha Vidyapitha were heard together and by a common judgment, those writ applications were disposed of by this Court on 24.01.1997. The operative portion of the said judgment is as follows :
"OJC No.99 of 1997 by Partha Sarathi Das is disposed of by quashing item no.12 of Annexure-3 thereof and we direct the authority to consider afresh the case of Partha Sarathi Das on merit, whether he is entitled to obtain grant-in-aid, within a period of three months from communication of this order. We, however, make it clear that inter-se seniority among the teachers of the school will depend on the result of the enquiry against Prafulla Kumar Nayak. If it is found that the appointment of Partha Sarathi Das has nothing to do with the enquiry against Prafulla Kumar 3 Nayak, grant-in-aid will be released. In case it is found that the enquiry is co-related to his appointment, then Partha Sarathi's case would be considered on the basis of the result thereof."
3. So far as the case of the petitioner in OJC No.99 of 1997 is concerned, this Court directed the authorities to consider the case of the petitioner afresh on merits whether he is entitled to obtain grant-in-aid within a period of three months from the date of communication of the order and further clarified that the inter-se seniority among all the teachers will depend upon the result of the enquiry against Prafulla Kumar Nayak and if it is found that the appointment of the petitioner in the school has nothing to do with the enquiry against Prafulla Kumar Nayak, grant-in-aid will be released and in case it is found that the enquiry is co-related to his appointment, then the petitioner's case will be considered on the basis of the result thereof. The case of the petitioner is that the enquiry of Prafulla Kumar Nayak has nothing to do with the appointment of the present petitioner and despite the said fact, the authorities did not release grant-in-aid in favour of the petitioner. Reffering to all official documents obtained under RTI Act, petitioner case is that there was no impediment on the part of the authorities to release the grant-in-aid in favour of the petitioner and as such, the Inspector of Schools vide letter no. 8023 dated 13.7.2004 has already submitted all the required information and documents in regard to the queries made by the Director, Secondary Education in terms of the Government letter dated 15.9.2003. Due to non-release of grant-in-aid, the petitioner again approached this Court by filing W.P.(C) No.13458 of 2009 and vide order dated 26.10.2009, this Court directed the opposite parties to take instruction why payments are not disbursed. But on 10.11.2009, this Court disposed of the writ application directing to consider the representation within a period of three 4 weeks. Due to non-disposal of the representation within the time stipulated by this Court, the petitioner has filed CONTC No.657 of 2010 for violation of the order of this Court dated 10.11.2009. But the said contempt petition has been disposed of directing the State-opposite parties to comply the order within a period of fifteen days. Though the said order has been duly communicated to the opposite parties, no steps have been taken with regard to the compliance of the order dated 24.1.1997 passed in OJC No.99 of 1997. Thereafter, due to non- compliance of the order dated 11.5.2010 passed in CONTC No. 657 of 2010, the petitioner has again filed CONTC No. 996 of 2010. During the pendency of CONTC No.996 of 2010 before this Court, the opposite party no.1 passed the impugned order dated 24.9.2010 (Annexure-14) intimating the petitioner with regard to abolition of the post, which is in contravention of the direction issued by this Court on 24.1.1997 in OJC No.99 of 1997. It is submitted that the termination of services of Prafulla Kumar Nayak having been approved by the Inspector of Schools, Jajpur, there is no impediment on the part of the State- opposite parties to release grant-in-aid in favour of the petitioner as the appointment of the petitioner has no nexus with the termination of Prafulla Kumar Nayak, thereby the petitioner states that the impugned order has been passed in gross violation of the order of this Court dated 24.1.1997 passed in OJC No.99 of 1997 and on the plea of abolition of the post, the benefit accrued to the petitioner with regard to grant-in-aid cannot be denied.
4. Pursuant to the notice, the opposite party no.3 has filed its counter stating that the petitioner was an un-trained graduate on the date of his appointment, i.e. on 27.7.1984 and he had no requisite qualification to hold the 5 post of Trained Graduate teacher and there was no vacancy in the staff position of the school as prescribed by the Government at the time of his appointment and illegalities have been committed by the Managing Committee of the School in appointing the petitioner beyond the prescribed yardstick who was not qualified and eligible for such appointment and also the State Government cannot bear the financial burden from the State exchequer for such illegal and whimsical action of the Managing Committee. The State Government as a matter of policy has taken decision for abolition of 75% of the base level posts in all similar category of schools in the State and accordingly, two Trained Graduate posts of Labani Devi Ucha Vidyapitha have been abolished since 4.7.2005. Therefore, no vacancy is available and the Director Secondary Education has also communicated to the State Government vide letter dated 4.7.2005 with regard to abolition of two Trained Graduate posts (Arts) in respect of Labani Devi Ucha Vidyapitha as at Sl.No.24 of Annexure-A/3. It appears that Labani Devi Ucha Vidyapitha, which is a fully aided school, is eligible to receive grant-in-aid with effect from 1.6.1994. The Managing Committee of the school terminated the services of Prafulla Kumar Nayak who was working as against a Trained Graduate post with effect from 3.11.1992. It is further stated that the Managing Committee appointed the petitioner against the post of Trained Graduate (Arts) as a surplus staff because two Assistant Teachers were continuing at that time as per the yardstick. It is further stated that the parties have ventilated their grievances before this Court by filing separate writ applications, which have been disposed of on 24.1.1997. Since the petitioner was appointed against a non-existent post of Trained Graduate Teacher as 6 surplus hand, such appointment being illegal, the petitioner is not entitled to get any benefit as claimed by him.
5. Heard Miss.S.Mohapatra, learned counsel for the petitioner and Mr.A.K.Pandey, learned Standing Counsel for the School and Mass Education Department.
6. After perusing the records available, I find that it is the admitted case of the parties that the petitioner was appointed as Assistant Teacher on 31.7.1984 when he was untrained, but he acquired the B.Ed. qualification on 28.5.1990. As per the yardstick prescribed by the Government of Orissa in Education and Youth Services Department dated 8.7.1981, four Trained Graduate Teachers are required to impart education. Out of the four Trained Graduate teachers, two must be Trained Arts Graduate and two others must be Trained Science Graduate. Admittedly, the petitioner being a Trained Arts Graduate, he was appointed against a Trained Graduate post by the Managing Committee of the School. While he was so continuing, the school in question became eligible to receive grant-in-aid with effect from 1.6.1994. In the meantime the Services of one Prafulla Kumar Nayak, who was continuing as Trained Graduate teacher, were terminated with effect from 3.11.1992. Therefore, by the time the school in question was eligible to receive grant-in-aid, the post held by Prafulla Kumar Nayak was not available to be considered for release of grant-in-aid against a Trained Graduate post. In the order passed by this Court while disposing OJC No. 8262 of 1996 filed by Prafulla Kumar Nayak the Managing Committee was directed to hold a fresh enquiry in terms of the order of the Director, Secondary Education as per Annexure-6 to the said writ 7 application. In compliance to the said order, the Managing Committee conducted the enquiry and confirmed the order of termination of Prafulla Kumar Nayak. Thereafter, the Managing Committee of the School passed a resolution on 22.10.1998 for approval of the termination of Prafulla Kumar Nayak. Against the said order, Prafulla Kumar Nayak did not take any steps. Therefore, there was no impediment on the part of the authorities to approve the appointment of the petitioner as the steps taken against Prafulla Kumar Nayak has reached finality and more so, under clause 12 of the approval of the staff position of the school dated 10.11.1995, it is stated that the approval of appointment of Sri Partha Sarathi Das, petitioner herein, is not taken into consideration due to non- finalization of the case of Prafulla Kumar Nayak pending in the Directorate. But in the meantime, the case of Prafulla Kumar Nayak has reached its finality. In that view of the matter, the authorities should have taken steps for approval of the appointment of the petitioner against Trained Graduate post. Instead of doing so, the authorities kept silent over the matter.
The petitioner again approached this Court by filing contempt application and when the contempt application is pending for consideration, the impugned order has been passed by opposite party no.1 on the ground that the petitioner has been appointed as surplus staff against the Trained Graduate (Arts) post, which has been abolished. The reasons for abolition has not been indicated in the impugned order, rather the impugned order has been passed in haste just to wriggle out of the rigor of the contempt proceeding initiated against the authorities and to deprive the petitioner to get his legitimate claim admissible to him. If it is the case of the State-opposite parties that Prafulla Kumar Nayak 8 has been appointed against a Trained Graduate post and his termination is valid, even after enquiry in compliance to the direction given by this Court, the said termination has been confirmed basing upon which the authorities have given approval in conformity with the provisions contained in the Orissa Education Act, there was no other impediment on the part of the authorities to approve the appointment of the petitioner against the post pursuant to the order dated 24.10.1997 passed by this Court in OJC No.99 of 1999. More so, the direction given by this Court to consider the case afresh on merits as to whether he is entitled to obtain grant-in-aid has not been combined with save and except stating in the impugned order dated 24.09.2010 that the appointment of the petitioner was against a non-sanctioned post beyond the standard yardstick during 1994 without following rules, and in the meantime the post of Trained Graduate (Arts) post of the school has been abolished, and therefore, the case of the petitioner is considered and rejected. This observation of the opposite party no.1 is absolutely baseless inasmuch as the opposite party no.1 has not applied his mind in proper perspective while considering the approval of the case of the petitioner and any subsequent action taken is contrary to the orders passed by this Court earlier because, the petitioner approached this Court by filing contempt application as he was deprived of his legitimate claim by rejection of his representation on frivolous grounds.
7. For the reasons as aforesaid, the impugned order dated 24.9.2010 passed by opposite party no.1 under Annexure-14 is hereby quashed. The petitioner be treated as an approved staff of Labani Devi Ucha Vidyapitha as against the vacancy caused due to termination of services of Prafulla Kumar 9 Nayak and he be granted all the consequential benefits as due and admissible to him in accordance with the provisions of law within a period of three months hence. No cost.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 11th April, 2014/PKSahoo