Orissa High Court
Dipak Kumar Sahoo vs State Of Orissa Rep. By Its Secretary In ... on 23 December, 1998
Equivalent citations: 1999(II)OLR176
JUDGMENT R.K. Patra, J.
1. The petitioner in this writ petition assails the validity of the Order No. 5368 dated 22.4.1996 at Annexure-5 by which the Inspector of Schools, Bolangir Circle, Bolangir, has refused to approve his appointment as 4th Peon in the school.
2. The case of the petitioner is that pursuant to the resolution of the Managing Committee dated 12.12.1991, he came to be appointed as 4th Peon in Chaitanya Panigrahi High School, Batharla. He joined the post on 18.12.1991 and has been discharging his duties as such from that day without any break. The said school was notified to be an aided educational institution by Government Order No. 12889 dated 2.5.1995. The Headmaster of the school accordingly forwarded the names of the members of staff to the Inspector of schools, Bolangir for approval of their appointment in letter dated 19.6.1995 at Annexure-3. On 31.10.1995, the Inspector of Schools made a visit to the school and verified the records and relevant attendance registers and forwarded a copy of his visit report to the Headmaster under Memo No. 823 dated 12.1.1996 at Annexure-4. In the said report, the petitioner's name finds place at SI. No. 1 3. Despite the aforesaid report as no action was taken by the Inspector, the petitioner filed writ petition bearing OJC No. 945 of 1996. A Bench of this Court by order dated 12.2.1996 disposed of the said writ petition by directing the Inspector of Schools to consider the proposal submitted by the Headmaster and dispose of the same within the period indicated in the order. In pursuance of the aforesaid direction, the Inspector of Schools has passed the impugned Office Order No. 5368 dated 22.4.1996 at Annexure-5.
3. The Inspector of Schools, who is the opp. party No. 3 has filed counter affidavit. His case is that at the time,of appointment of the petitioner as 4th Peon in 1991, the School in question was an unaided one. It became an aided educational institution with effect from 1.6.1994. By the time the management submitted the proposal for approval of the staff showing the petitioner as 4th Peon in the school, the revised yardstick prescribed by the Government in letter No. 15500/E dated 27.3.1992 at Annexure-A had come into force, which did not contemplate a 4th Peon in the school. The Director also in office letter No. 11600 dated 21.3.1996 at Annexure-B instructed the Inspector of Schools not to approve the appointment of 4th class staff even if the Managing Committee had made such appointments. In view of the aforesaid, as the post of 4th Peon was not admissible, the impugned order was passed disapproving the appointment of the petitioner.
4. Shri Swain, learned counsel for the petitioner submitted that Rule 30 (k) of the Orissa Education (Establishment, Recognition and Management of Private Schools) Rules, 1991 (corresponding to Rule 9 (a) of the Orissa Education (Management of Private Schools) Rules, 1980, since repealed), provides that the Managing Committee shall make appointment of teaching and non-teaching staff in accordance with the provisions contained in the Education Act, Rules and Instructions of the Department. At the time of appointment of the petitioner in the school as 4th Peon, the yardstick prescribed by the Government in Education and Youth Service Department Letter No. 28465 EYS dated 8.7.1981 was in force which provided that if the roll strength of the school exceeded 100, one post of 4th Peon was admissible. As the Managing Committee was required to make appointment as per the aforesaid yardstick, the petitioner was appointed as 4th peon and the roll strength of the School justified such appointment.
Learned Counsel appearing for the opp. parties, on the other hand, submitted that the Government Letter No. 28465 EYS dated 8.7.1981 provided for admissibility of a post of Daftary and the said post being a promotional post, the petitioner could not have been appointed straightaway as Daftary although he describes himself loosely as the 4th peon. In this connection, learned State Counsel has referred to order dated 8.4.1997 passed by a Bench of this Court in M.C. No. 10326 of 1996 (arising out of OJC No. 7723 of 1995 - Lokanath Ray v. Managing Committee of Samanta Singhar High School), Letter No. 20985 dated 10.6.1996 of the Director, Secondary Education, Orissa and the Letter No. 36118/ SME dated 13.11.1996 of the Government of Orissa in-the Department of School and Mass Education. Bhubaneswar.
5. Rule 30 (k) of the Orissa Education (Establishment, Recognition and Management of Private Schools) Rules. 1991 (corresponding to Rule 9 (a) of the repealed Orissa Education (Management of Private Schools) Rules, 1 980 states that the Managing Committee shall exercise the powers and discharge the functions like appointment of teaching and non-teaching staff in accordance with the provisions contained in the Act, the Rules and the Instructions of the Department. The relevant instructions issued by the Department with regard to fixation of standard staff for Non- Government Secondary Schools are contained in the Government of Orissa, Education and Youth Services Department Letter No. 28465/EYS dated 877.1981. For the sake of convenience, we may extract the relevant portion which reads as follows :
"From Shri N. P. Parija, I.A.S., Deputy Secretary to Government To The Director of Public Instruction (s), Orissa Sub : Fixation of standard staff for the non-Government Secondary Schools, Sir, I am directed to say that the quetion of fixation of standard staff for the Non-Government Secondary Schools has been felt necessary by the Government due to introduction of the revised syllabus under 10 years schools pattern. After careful consideration of the various aspects, Government have now been pleased to decide that the standard staff both teaching and non-teaching for different categories of non-Government Secondary Schools shall be as follows :
(A) For the Schools having no additional sections :
Category of staff 3 Class 5 Class 7 Class
xx xx xx xx
9. Peons
(i) Office Peon 1 1 1
(ii) Science
Attendant 1 1 1
(iii)Night Watcher-
cum-S weeper 1 1 1
xx xx xx xx
(B) xx xx xx xx
(C) Additional Post of Cleand Peons :
(i) xx xx xx xx
(ii) Where the roll strength of the School exceeds 100 one post of Daftary is admissible.
(iii) xx xx xx xx"
From this letter, it may be seen that Sub-head (A) SI. No. '9 deals with peons like. Office Peon, Science Attendant and Night Watcher- ewm-Sweeper. It means. Science Attendant and Night Watcher-a/m-Sweeper come within the cluster of 'peons'. Similarly, under Sub-head 'C admissibility of additional posts of clerks and peons has been mentioned. It provides that if the roll strength of the school exceeds 100, one post of Daftary is admissible.
6. With regard to the contention of the learned State Counsel that the post of Daftary is a promotional post, it may be stated that although in the Directorate Letter No. 20985 dated 10.6.1996 it has been mentioned that Daftary post is a promotional post of Class-IV, the Director has not declared it to be a promotional post. The aforesaid letter was addressed by the Deputy Director to the Inspector of Schools, Cuttack Circle. Cuttack requesting him to file a Review petition against the order of this Court rendered in OJC No. 8857 of 1995 on six different grounds. One of the grounds suggested was that "the Daftary post is a promotional post of Class-IV employees carrying higher scale of pay, i.e. Rs. 775-1025/- than that of peon post carrying the scale of pay of Rs. 750-940/-". The Deputy Director in the said letter has not laid down that the post of Daftary is a promotional post of Class-IV employees. He himself could not have decided so as he was not competent to lay down any principle or mode of appointment. In the said letter, reference has been made by the Deputy Director to Government Order No. 15500/E. dated 27.3.1992 which is at Annexure-A. In the said Government order revised yardstick had been prescribed with effect from 1.1.1 992 under which posts of Office Peon, Science Attendant and Night Watcher-cum-Sweeper have only been categorised as Class-IV employees with further stipulation that a post of Daftary is admissible if the roll strength of a three class High School exceeds 500 or more. Thus the Government order referred to above does not state that the post of Daftary is a promotional post. Let us examine the Government Letter No. 3611 8/SME dated 13.11.1996. On perusal ot the aforesaid letter it would appear that it was issued by way of clarification in the wake of some doubts which arose in the matter of appointment of Daftary. It would be profitable to quote Government Letter No. 361 18/ SME dated 13.1 1.1996 in extenso. It is as follows :
Sub : Filling up of the post of Daftary in Government High Schools.
I am directed to say that in this Deptt. Letter No. 28465/EYS.. dated 8.7.1981 it has been laid down that where the roll strength of a High School exceeds 100 (one hundred) one post of Daftary is admissible in addition to the Class IV employees such as one Office Peon, one Science Attendant and one Night Watcher-cum-Sweeper. The norm of appointment of Daftary has been revised in this Depli. Letter No. 15500/E. dated 27.3.1992 and accordingly where the roll strength of a High School is 500 (five hundred) or more one post of Daftary is admissible in addition to the above posts:
2. Certain doubts have been raised at some quarters as to how the post of Daftary shall be filled up. whether by direct recruitment or by promotion from among the Class-IV employees of the same school.
3. As per the erstwhile P & S Deptt. Letter No. 29787/GEN. dated 15.12.1979 posts of Daftaries in State Govt. Offices shall be filled up by promotion from among the Peons, Orderly Peons etc. of the same office on the basis of suitability with due regard to seniority.
4. It is, therefore, hereby clarified that the same principles may also be followed while filling up the post of Daftary in a High School in order to avoid legal complications.
5. The above instructions may please be brought to the Notice of all concerned for their guidance.
On careful reading of the aforesaid letter, we are of the considered opinion that the Government for the first time in the said Letter declared that since in the State Government offices the post of Daftary is filled up by promotion from among the peons, orderly peons etc. on the basis of suitability with due regard to seniority, as prescribed in the erstwhile P & S Department Letter No. 29787/Gen. dated 15.1 2.. 1979, the same principle should also be followed while filling up of the posts of Daftary in High Schools. The aforesaid decision that the post of Daftary in non-Government aided High Schools is a promotional post is applicable or effective only from the date of issue of the letter. It has got no retrospective effect. In the order dated 8.4.1997 of this Court in Misc. Case No. 10326 of 1996 (arising out of OJC No. 7723 of 1995) reference has been made to the Government Circular dated 15.12.1979. Reference to the said circular obviously means to the erstwhile P & S Department Letter No. 29787/ Gen., dated 15.12.1979 mentioned in Govt. Letter No. 3611 8/SME dated 13.11.1996 (extracted above). We make the position clear by stating that as per the erstwhile P & S Department Letter No. 29787/Gen., dated 15.12.1979 post of Daftary in State Government offices are to be filled up by promotion from among the Peons, Orderly Peons etc. The said norm for filling up of the post of Daftary in Government offices has been made applicable to High Schools (Non-Govt. aided) for the first time by Letter No. 36118/SME dated 13.11.1996. By virtue of this decision, the post of Daftary in non-Government aided High Schools is to be filled up by way of promotion from among the peons etc.
7. Now let us look at the facts of the case. The approval of the petitioner was not made by the Inspector of Schools basing on the yardstick prescribed by the Government in Order No. 15500/E dated 27.3.1992 at Annexure-A. The aforesaid revised yardstick was brought into force with effect from 1.1.1992, i.e. after joining of the petitioner in the school on 18.12.191. There is no dispute that at the time of joining of the petitioner, the yardstick prescribed by the Government in Letter No. 28465/EYS dated 8.7.1981 was in force which provided for admissibility of a 4th peon (Daftary) if the roll strength of the school exceeded 100. At the relevant time the roll strength of the school was more than 100.
8. For the reasons aforesaid, the order of the Inspector of Schools at Annexure-5 cannot be sustained and the same is hereby quashed. The Inspector of Schools is directed to pass necessary orders approving the appointment of the petitioner as 4th Peon in the school in question within two months from the date of receipt of this order.
The writ petition is accordingly allowed. No costs.
R.K. Dash, J.
9. I agree.