Orissa High Court
Ajaya Kumar Pattanaik vs State Of Orissa And Others on 24 February, 2016
Author: S.N.Prasad
Bench: S.N.Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.2858 of 2016
In the matter of application under Articles 226 and 227 of the Constitution of
India.
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Ajaya Kumar Pattanaik ...... Petitioner
- Versus-
State of Orissa and others ...... Opposite Parties
For Petitioner - M/s G.K.Mishra and A.K.Saa
For Opp.Parties - Mr. Budhiman Rout, Standing Counsel for School
and Mass Education Department.
PRESENT:
THE HONOURABLE SHRI JUSTICE S.N.PRASAD
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Date of hearing and judgment: 24.2.2016
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S. N. Prasad, J.Order dated 14.10.2015 passed by the Collector-cum-Chief Executive Officer, Zilla Parishad, Khurda (Annexure-13) is under challenge in this writ petition with a further direction to allow the petitioner to work as Junior Teacher with all consequential benefits.
2. Facts of the case is that the petitioner initially the petitioner was appointed as Sikhya Sahayak and after continuously working nearly for 6 years he was taken as Junior Teacher on 21.1.2011 as per the prescribed rules but the authorities have disengaged his service which led the petitioner to file writ petition before this Court being W.P.(C) No.4977 of 2012 and this Court after quashing the order of disengagement has remitted the matter before the Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda to take fresh decision and in the light of the said order the Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda has passed order on 14.10.2015 by which he has not find any illegality in the decision already taken by the Collector in its order dated 21.11.2011.
2Grievance of the petitioner in assailing the order dated 14.10.2015 is that the Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda has not applied its independent mind, petitioner has not been provided adequate opportunity of being heard, Collector has not taken into consideration the fact that the petitioner has already been taken as Junior Teacher after completion of 6 years of satisfactory service.
3. Learned counsel for the opposite party-State has vehemently opposed the averments of the petitioner and has submitted that there is infirmity in the order impugned, Collector has passed order after providing all adequate opportunity of being heard, Collector has taken into consideration the records and has passed the order without being influenced by higher authorities which is evident from the order itself.
He further submits that the petitioner was under contractual engagement and he has no fettered right to remain in service since remaining in service will totally depend upon the terms and conditions of the agreement and the Collector who is the signatory of the agreement and when satisfied that the petitioner is not satisfactorily discharging his duty, he has passed order of disengagement, hence there is infirmity.
4. Heard learned counsel for the parties and perused the document on record.
5. Before appreciating the issue it is relevant to see the nature of engagement of the petitioner. Petitioner initially was appointed on 23.12.2006 as Sikhya Sahayak (Annexure-1) with the conditions contained therein and one of the condition is that he/she will work under the administrative control of the Headmaster In-charge of the school to which he/she is assigned, he/she will perform the duties as will be entrusted upon him/her by the concerned Headmaster or other superior officers. The nature of appointment is purely on an annual contract basis and the contract will be renewed in subsequent years depending upon performance of the candidate. While renewing contract of the Sikshya Sahayaks, the Collector-cum-CEO,Zilla Parishad must see that the Village Education Committee of the concerned school has given positive certificate in his/her favour about regular attendance and satisfactory 3 teaching. The Sikshya Sahayak can be removed from engagement with 30 days prior notice, if she/he violates the conditions of the contract or on the basis of adverse report of the Village Education Committee. The relevant part of this condition as contained in Clause 4.4 of the Resolution dated 31.5.2006 is being referred hereinbelow:
"Orders of engagement shall be issued by the Zilla Parishad through its Chief Executive officer-cum-Collector of the District. The engagement will be on an annual contract basis. Contract will be renewed in subsequent years depending upon performance of the candidate. While renewing contract of the Sikshya Sahayaks, the Collector-cum-CEO,Zilla Parishad must see that the Village Education Committee of the concerned school has given positive certificate in his/her favour about regular attendance and satisfactory teaching. The Sikshya Sahayak can be removed from engagement with 30 days prior notice, if she/he violates the conditions of the contract or is considered unsuitable later on by the authorities or on the basis of adverse report of the Village Education Committee."
Further it transpires from the resolution dated 31.5.2006 that the Sikshya Sahayak after completion of continuous satisfactory engagement will be eligible for appointment as Junior Teacher by the Zilla Parishad on contractual basis with consolidated remuneration of Rs.3000/- per month. After completion of three years of satisfactory engagement as Junior Teacher will be granted in increase in remuneration of Rs.500/- subject to the conditions mentioned in para-9 and it is only thereafter if Junior Teachers completed 5 years of continuous satisfactory engagement he/she will be eligible for payment of regular Primary School Teachers by the Zilla Parishad. Junior Teachers of Zilla Parishads on rendering satisfactorily service as reviewed every 3 years can continue in service but not beyond 58 years of age. This condition is stipulated in Clause 12.1 which is quoted hereinbelow:
"The Junior Teachers of Zilla Parishads on rendering satisfactorily service as reviewed every 3 years can continue in service but not beyond 58 years of age."
Thus it is evident from the resolution dated 31.5.2006 that appointment of Sikshya Sahayaks or Junior Teacher is purely contractual and subject to review of rendering satisfactory service. Admitted case of the petitioner is that he was engaged as Sikshya Sahayak but subsequently he was taken as Junior Teacher vide order dated 21.11.2011. Grievance of the petitioner that he has been taken as Junior Teacher which amount to higher assignment, disengaging him from service is absolutely non-application of mind.
46. Before going to the facts of the case of the petitioner, it needs to refer certain judgments regarding position of contractual engagement. In the case of Director, Institute of Management Development, U.P. -vs- Smt. Pushpa Srivastav reported in (1992) 4 SCC 33, the Hon‟ble Apex Court while considering the case of an employee appointed on a contractual basis held as under-
".... To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on „ad hoc‟ basis for more than a year whether she is entitled to regularization ? The answer should be in the negative."
In the case of Vidyavardhaka Sangha and another -vs-
Y.D.Deshpande and others reported in (2006)12 SCC 482 the Hon‟ble Apex Court has been pleased to hold at para-4:-
"It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said post for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employee or on contract basis. The submission made by the learned counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation etc."
In the case of State Bank of India & ors. -vs- S.N.Goyal reported in JT 2008(6) SC 398 the Hon‟ble Apex Court has observed:
"11. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement."5
It is also settled that a contract of employment stands on a different footing than a commercial contract and an unfettered right of hire and fire is not available to the State as the same would violate Article 14 of the Constitution of India.
7. In the light of the proposition laid down by the Hon‟ble Apex Court if the case of the petitioner is taken into consideration, it is evident that the petitioner was engaged on contractual basis as Sikshya Sahayak by virtue of the agreement on contract basis subject to condition of renew on annual basis depending on the performance of the candidate while working as Sikshya Sahayak and after satisfactory service Sikshya Sahayak can be taken as Junior Teacher which is also contractual engagement and their continuance will depend on the basis of the review to be made every three years and if found satisfactory he/she can continue in service but not beyond 58 years of age. Thus it is evident from the resolution dated 31.5.2006 that the petitioner has been appointed purely on contract basis initially as Sikshya sahayak and subsequently as Junior Teacher and continuance of Sikshya Sahayak or Junior Teacher will depend upon satisfactory service
8. It is the case of the opposite party-School and Mass Education Department as has been alleged in saying that the petitioner has failed in discharging duty in efficient manner and as such he has violated the terms and conditions of the agreement on the following ground:
(i) Negligence in duty,
(ii) Disobedience of Government orders; and
(iii) Touching integrity with pecuniary interest.
Said irregularities have been found by the District Project Coordinator and thereafter show cause notice was issued to him which has been replied by the petitioner and the DPC has forwarded the matter before the Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda who has passed order on 21.2.2012. However, the said order was challenged before this Court on the ground that the Collector has not applied his mind independently since in the order dated 21.2.2012 it has been stated that the 6 order of disengagement has been passed in pursuance to the instructions of the Commissioner-cum-Secretary to Government, School and Mass Education Department, hence this Court while disposing of the writ petition after quashing the order of disengagement has remitted the matter before the Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda to take fresh decision after considering reply by taking independent decision without being influenced by the Commissioner-cum-Secretary and in pursuance to the same the impugned order has been passed which is impugned in this writ petition.
9. From perusal of the impugned order it is evident that the petitioner was provided opportunity of being heard since in the first line it has been observed that the petitioner Ajaya Kumar Pattnaik is present. The District Project Coordinator, SSA, Khurda was also present and both the parties have been heard by the Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda and also perused the explanation dated 30.9.2011 of the petitioner along with all relevant records from the personal file maintained at Sarva Sikhya Abhiyan Office and the inquiry report of OIC, School Student Helpline dated 26.8.2011 and allegation put by the villagers against the petitioner and thereafter the Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda has taken conscious view that the records are clear and thorough inquiry has been made by the OIC, School Student Helpline. From the records, Collector has found that the petitioner has been transferred to J.R.Nodal UP School under the same Jatni Block on administrative ground of receipt of allegation from the villagers by the transferring authority, but the petitioner disobeyed the order to join in the new station and tried his best for cancellation of the same. In the meanwhile he was relieved from the school by the Block Development Officer, Jatni who was the Drawing and Disbursing Officer but the petitioner never reported to the transfer place of posting, was forcibly signing in the teachers attendance register, not handing over the charges to the senior most teacher of the school and creating unpleasant atmosphere in the school, as such FIR has been lodged against him on 14.9.2011 by the then District Inspector of schools and it is only thereafter petitioner has approached this Court against the order of transfer.
710. After knowing the matter thorough enquiry was directed to be made by the Deputy Director-cum-OIC, School Students Helpline, OPEPA who has submitted report against the petitioner. Thus, the Collector has given conscious decision that the petitioner has flouted the order passed by the higher authorities not only that he has also forcibly signed in the attendance registers, not handed over charges, however, subsequently he has filed writ petition in which order has been passed regarding stay of order but prior to interim order having been passed by this Court he has disobeyed direction of the higher authorities, put signatures in the attendance registered which is gross misconduct and is not accepted from an employee like the petitioner who was a contractual engage.
There is no dispute about the fact that the petitioner was appointed on annual contract basis executed between the Collector and the petitioner, paragraphs 2 and 3 of which speaks that retention of the petitioner will depend upon satisfactory service. Since appointment of the petitioner was purely contractual depending upon terms and conditions of the contract and further service conditions of the petitioner as Junior Teacher also depends upon his satisfactory service for further renewal as would be evident from Clause 12.1 of the resolution dated 30.5.2006 as hereinabove quoted, petitioner has got no fettered right to remain in service in a situation when he has violated terms and conditions of the contract. However, it has been submitted by learned counsel for the petitioner that petitioner in the meanwhile was taken as Junior Teacher but most of the allegations are after the order dated 21.11.2011 by which he has been taken as Junior Teacher, hence this point has got no relevance regarding irregularities.
11. The Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda has passed the order after the matter having been remitted by this Court on the basis of materials available on record and after giving opportunity of being heard to the petitioner. He has also observed in the enquiry report regarding conduct of the petitioner which cannot be accepted even from regular employee and what to talk about a contractual engagee, hence he has disengaged and subsequently found no reason to take reverse view from the earlier order taking into consideration of serious allegations.
8This Court cannot assume power of appeal to reverse the fact finding given by the Collector, who is the authority whose subjective satisfaction is necessary for further retention of service of the petitioner.
12. In view thereof, this Court declines to interfere with the decision taken by the Collector-cum-Chief Executive Officer,Zilla Parishad, Khurda as contained in Annexure-13.
13. Accordingly, the writ petition is dismissed being devoid of merit.
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S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 24th February,2016/Palai