Orissa High Court
Subhranta Kumar Mohanty vs State Of Orissa And Ors. on 13 March, 2001
Equivalent citations: 2001(I)OLR619
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. The petitioner in this writ application has prayed for quashing the order contained in Annexure-6 approving the appointment of the petitioner as In-charge Headmaster, and has prayed for a direcrion to the opposite parties to approve petitioner's appointment as Headmaster with effect from 1-6-1994 and pay his salary in the scale prescribed for Headmaster according to rule 9 of the 1974 Recruitment Rules.
2. The case of the petitioner is that Bhagabati High School was established in the year 1981 and the school was granted recognition of the educational authorities in December, 1984. The Board of Secondary Education granted permission to present the students of the said institution in the year 1985 and the first batch" of the school appeared in 1986 Board's Annual Examination. In the meantime the school having been granted aid, it has become an aided educational institution within the meaning of section 3(b) of the Orissa Education Act, 1969. The petitionet was appointed as an Assistant Teacher of the said school, consequent upon resignation of one Umesh Chandra Sahu, ex Headmaster of the school. The petitioner was then a Graduate and had appeared in the B. Ed. Examination, but the results had not been published. An appointment letter was issued to the petitioner on 7-9-1981 by the Secretary of the Managing Committee of the school and the petitioner joined the post on 10-9-1981. While the petitioner was continuing as such, the results of B, Ed. Examination were published in March, 1983 whereafter the petitioner was promoted to the post of Headmaster by the Managing Committee of the institution by its Resolution dated 11-11-1984. By the time the petitioner was promoted to the post of Headmaster, the school was an unrecognised and unaided one. The petitioner assumed the charge of the Headmaster of the school with effect from 11-11-1984. After the institution became eligible to receive grant-in-aid, the Managing Committee was directed by the Inspector of Schools to submit the staff position for the purpose of approval. As per the direction of the Inspector of Schools, the Managing Committee placed staff position intimating therein that the petitioner had been appointed as Headmaster. But by the impugned order dated 7-6-1990, the Inspector of Schools approved the staff including the petitioner showing the petitioner as Headmastar in-charge. The said order has been challenged before this Court.
3. No counter has been filed to the writ application on behalf of the State. However, learned Additional Government Advocate referring to the decision reported in 87(1999) C.L.T. 272 (S. B)=1999 (I) O. L. R. 187 : Pritiranjan Pradhan and others v. State of Orissa and others, as well as the judgment of the Apex Court in Civil Appeal Nos. 3190 and 4670 of 1999 : Pabitra Mohan Das, etc v. State of Orissa and others, disposed of on 4th January, 2001, submitted that since the petitioner's appointment is subsequent to 29-4-1977, which had been done contrary to the provisions of the Regulation, the said appointment is to be treated as invalid appointment and does not confer any right on the petitioner to be treated as Headmaster of the institution. Shri Rath, learned counsel appearing for the petitioner, submitted that the petitioner was appointed as an Assistant Teacher on 7-9-1981 when the school was not even a recognised one. The petitioner was promoted to the post of Headmaster on 11-11-1984 and at the time of such promotion also the institution was a private, unrecognised and unaided school. Therefore, the Board's Regulations as well as the Government instructions, if any, had no application to the petitioner or the institution where the petitioner was working. The petitioner was a Trained Graduate Teacher when he was appointed as Headmaster of the institution and the Managing Committee was justified in promoting him to the post of Headmaster and there is no illegality in such promotion. When the school got recognition from the Board vide its letter dated 3-10-1985, the petitioner was already working as the Headmaster of the institution. The order of recognition issued by the Director on 10-12-1984 and the Board's letter dated 3-10-1985 clearly indicate that by the time such recognition was granted, the petitioner was continuing as Headmaster of the institution having been promoted by the Managing Committee of the said institution. According to Shri Rath, the amendment made in the Board's Regulation prescribing seven years teaching experience as Trained Graduate Teacher for the purpose of appointment or promotion to the post of Headmaster has no application to the facts of this case and there was no option left with the the educational authorities except approving the appointment of the petitioner as Headmaster of the institution.
4. Before examining the case of the petitioner, it is necessary to refer to the judgment in Pritiranjan's case (supra) as well as the judgment of the Apex Court. The judgment in Pritiranjan's case upheld only a part of the judgment delivered in the case of Golak Chandra Mohanty's case 76(1993) C.L.T. 308 (F. B.) = (1993 (I) O. L R. 303). The judgment confirmed the earlier Full Bench decision of this Court only in respect of the following : For the purpose of grant of Headmaster's scale of pay seven years' teaching experience as a Trained. Graduate Teacher was necessary for an Assistant Teacher to be promoted to the post of Headmaster with the aid of rule 8 (2)(b) of the 1974 Rules in those cases where the appointments had been made on or after 29-4-1977, when the amended Regulation 17 (2)(i) of the Board's Regulations had come into force. This applies both to aided and unaided schools. The Apex Court while confirming the aforesaid judgment of this Court also held that if subsequent to 29-4-1977 any appointment has been made to the post of Headmaster, contrary to the aforesaid provisions of the Regulation of the Board, then the said appointment shall be invalid appointment and this would not confer any right on the appointee. With the aforesaid background of law laid down by this Court as well as the Apex Court, the applicability of the same to the facts of the present case is to be examined. The school in which the petitioner was working was an unaided and unrecognised one till 1985. As per Article 312 of the Education Code, the Headmaster to be appointed should have acquired training qualification. By the time the petitioner was promoted to the post of Headmaster on 11-11-1984 he was not only qualified to hold the post but also at that point of time the school had not received recognition either from the Director or from the Board. The school obtained recognition for class VIII on 10-12-1984 after the petitioner was promoted to the post of Headmaster. This Court in a decision reported in (1933) 1 A.T.T. (H.C.) 306; Kumari Sabitri Dash v. State of Orissa and others, held that the moment a school becomes an aided educational institution, its erswhile teachers who are covered by the staffing pattern would ipso facto become employees of the aided educational institution, but then, for good and sufficient reason, a particular teacher may not be so accepted. Shri Rath relying on the aforesaid decision submitted that since the petitioner was working as Headmaster of the institution when it came within the fold of grant-in-aid the status of the petitioner has to be taken as such. In reply to the argument advanced by the learned counsel for the State that there was no separate resolution by the Managing Committee of the institution appointing the petitioner as Headmaster after he completed seven years of teaching experience as a Trained Graduate Teacher, the petitioner has filed an affidavit. In the said affidavit it is stated that the Managing Committee of the institution vide resolution dated 22-5-1995 conferred the status of a regular Headmaster in favour of the petitioner with effect from 9-3-1990 as the petitioner had completed seven years teaching experience as a Trained Graduate Teacher by that date and accordingly allowed Headmaster's scale of pay of Rs.1700-3200/-. In view of the submissions of the learned counsel appearing for both the parties, the following facts are clear :
The petitioner was promoted to the post of Headmaster by the institution by resolution of the Managing Committee dated 11-11-1984 when the institution was a private unrecognised unaided one. There is no dispute that the Managing Committee of the institution had the authority to appoint a Trained Graduate Teacher as Headmaster of the institution and therefore, the promotion of the petitioner to the post of Headmaster of the institution by the Managing Committee's resolution dated 11-11-1984 was lawful. The institution having come within the fold of grant-in-aid in the year 1995, the Managing Committee in its resolution as stated in the affidavit, on 22-5-1995 confirmed the status of the petitioner as regular Headmaster of the said institution and by 22-5-1995 the petitioner had completed seven years of teaching experience as a Trained Graduate. Therefore, in the facts of the present case, the decision of this Court in Pritiranjan's case as well as of the Apex Court shall have ho application.
5. I, therefore, allow the prayer of the petitioner, quash Annexure-6 and direct the opposite parties 1, 2 and 3 to approve the appointment of the petitioner as Headmaster of the institution and allow him the Headmaster's scale of pay with effect from the date he is entitled to the said scale. The arrears payable to the petitioner be calculated and paid within a period of six months.
6. Writ petition allowed.