Ananta Charan Nayak vs State Of Odisha And Others
2021 Latest Caselaw 6384 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

            WRIT PETITION (CIVIL) No.29423 of 2011


   (An application under Articles 226 & 227 of the Constitution of
   India)



    Ananta Charan Nayak                           ....             Petitioner

                                     -versus-
    State of Odisha and others                    ....      Opposite Parties


   Appeared in this case by Video Conferencing mode:

    For Petitioner               :              Mr. H.S. Mishra, Advocate

    For Opposite Parties         :                          Mr. S.K. Parida
                                                   Senior Standing Counsel
                                                for the Opposite Party-SME

     CORAM:
     THE CHIEF JUSTICE
     JUSTICE S.K. PANIGARHI
                             JUDGMENT

21.06.2021 Dr. S. Muralidhar, CJ

1. The challenge in this writ petition is to an order dated 29th September, 2011 passed by the Odisha Administrative Tribunal (OAT), Cuttack Bench, Cuttack dismissing the Petitioner's T.A. No.1 (C) of 2006.

2. By the said impugned order, the OAT has negatived the contention of the Petitioner that after the takeover of the Tarkera U.P. (M.E.) School by the Rourkela Municipality with effect from 5th February, 1992 he ought to have been continued as Headmaster and could not have been reverted to the post of Assistant Teacher.

3. The background facts are that the Petitioner was appointed as Headmaster of Tarkera U.P. (M.E.) School with effect from 1st July, 1987 in the pay scale of Rs.1050-2085/-. The school was within the local limits of Rourkela Notified Area Council (NAC), which subsequently became a municipality.

4. By notification dated 5th February, 1992 the Housing and Urban Development Department, Government of Odisha announced the proposal for the NAC (ST) Rourkela to take over the school. On 8th July, 1992 a further notification was issued formalizing the takeover of the management of the above school by the NAC (ST) Rourkela. The sais notification further stated inter alia that consequent upon transfer of the Management of the School to the NAC, the teachers in service will be eligible to continue as such.

5. On 12th October, 1992 (Annexure-5), the Executive Officer NAC (ST), Rourkela issued a letter to the Secretary of the erstwhile Managing Committee of the School requiring it to obtain declaration from the employees of the School in the

proforma attached to the said letters. Admittedly, the Petitioner also gave a declaration/undertaking as required on 13th October, 1992 (Annexure-6) stating inter alia that "I will agree to all the terms and conditions whatever will be decided by the N.A.C. (ST) Rourkela as per Govt. of Orissa, Education Department in regulating my services from the date of takeover of the school."

6. On 26th October 1992, the NAC (Steel Township), Rourkela informed the Secretary of the School of the terms and conditions of the formal takeover of the Management of the School. Among the conditions were the following:

(a) The seniority of the teacher in service in NAC (ST) will be counted from the date of formal takeover of the school by the NAC (ST) and joining of the teacher pursuant to the offer issued in the takeover.

(b) The consolidated pay would be given to the teachers from the formal date of takeover. The trained graduate teachers would get consolidated amount of Rs.l000/- whereas the other teachers will get Rs.900/- in the High Schools.

7. After takeover and after the undertaking was given, the Petitioner was provisionally appointed as Assistant Teacher by an office order dated 23rd March, 1993 on consolidated pay of Rs.900/- per month. Subsequently, on 31st November, 1993 his

services were regularized as Assistant Teacher under the pay scale of Rs.1080-1800/-.

8. Aggrieved that the above order amounted to his being reverted from the post of Headmaster to that of Assistant Teacher, the Petitioner filed OJC No.4693 of 1993 before this Court. During pendency of the said writ petition, the Government of Odisha by a resolution dated 28th February, 2004 took over the Management of the School. Consequently, this Court by order dated 9th May, 2006 transferred the said writ petition to the OAT which got renumbered there as T.A. No.1 (C) of 2006.

9. By the impugned order dated 29th September 2011, the OAT rejected the plea of the Petitioner inter alia for the following reasons:

(i) The Petitioner had given a declaration/undertaking that he would abide by the terms and conditions stipulated by the NAC (ST) /Municipality.

(ii) The terms and conditions were that his seniority would be reckoned from the date of the takeover of the School by the NAC.

(iii) There were others who were senior to the Petitioner in the cadre of Assistant Teacher in the NAC and therefore, he would not be eligible to be promoted as Headmaster.

(iv) The decision of this Court in the case of Dhaneswar Behera v. Chairman, Notified Area Council (Civil Township) Udit

Nagar (W.P.(C) No.1453 of 1984 disposed of on 2nd March, 1987) was distinguishable on facts.

10. This Court has heard the submission of Mr. H.S. Mishra, learned counsel appearing for the Petitioner and Mr. S.K. Parida, learned Senior Standing Counsel for the Opposite Parties (School and Mass Education Department).

11. It is urged by Mr. Mishra, learned counsel for the Petitioner, that the doctrine of estoppel would not be attracted since the original notifications dated 5th February, 1992 and 8th July, 1992 of the Housing and Urban Development Department, Government of Odisha notifying the takeover of the schools by NAC (ST), Rourkela did not envisage the reversion of the Petitioner from the posts of Headmaster. According to him, it was only much later in October, 1992 that an undertaking was sought from all the teachers and the Headmasters. Mr. Mishra, repeatedly urged that the Petitioner was compelled to give an undertaking and he was helpless. According to him, such an undertaking was given under duress, hence cannot be said to be voluntarily given and in any event, cannot legitimise the Petitioner's reversion which was contrary to the notifications dated 5th February, 1992 and 8th July, 1992.

12. Mr. Mishra placed reliance on the decision in Dhaneswar Behera (supra) and submitted that the OAT erred in

distinguishing it on facts. According to Mr. Mishra, the said decision squarely applies to the facts of the present case.

13. Mr. Parida, learned Senior Standing Counsel for the Opposite Parties sought to defend the judgment of the OAT. He pointed out that the Petitioner was bound by the undertaking which he never resiled form at any point in time subsequent thereto.

14. The above submissions have been considered.

15. The he notification dated 5th February, 1992 disclosed the proposal for the takeover of the school in question by the NAC (ST), Rourkela. This did not expressly state that the terms and conditions of the serving teachers would be altered. By the subsequent notification dated 8th July, 1992 the formal takeover of the school by the NAC (ST), Rourkela was notified. In fact this notification was common to the takeover of not just the Tarkera M.E. School but the Hamirpur U.P./M.E. School, the Fakir Mohan Vidyapitha (High School), and the Balijodi Luakera High School as well. This notification stated that the continuation of the teachers would be "as prescribed by the Education Department". Importantly, neither notification held out any assurance that the terms and conditions of the service of the teachers of these schools would remained unchanged.

16. The Petitioner appears to have voluntarily given an undertaking/declaration on 13th October, 1992 agreeing to abide by all the terms and conditions as would be stipulated by the NAC (ST), Rourkela. From the copy of the undertaking/declaration, it is plain that it was not given under protest. In fact, Mr. Mishra did not dispute the fact that even thereafter the Petitioner made no effort to resile from the undertaking.

17. The Petitioner further accepted all the terms and conditions stipulated in the letter dated 26th October, 1992 of the NAC (ST) Rourkela which made it clear that the seniority of the teachers would be reckoned from the date of formal takeover the school. In other words, the Petitioner accepted the fact that after such takeover of the school, his seniority would account along with other teachers already serving in the NAC (ST) Rourkela. Clearly the Petitioner could not, after the above terms and conditions were notified expect to continue as a Headmaster. However, any doubt in this regard stood dispelled when the Petitioner was first appointed provisionally at a consolidated pay of Rs.900/- per month by the office order dated 23rd March, 1993 and was confirmed as Assistant teacher by the subsequent order dated 31st November, 1993.

18. During this entire period, the Petitioner did not write to the Management that his undertaking/declaration has been obtained under coercion or compulsion or that he was helpless in giving it.

Also, once he accepted the terms and conditions that stipulated that his seniority would be reckoned from the date of the take over and not earlier, he had reconciled to the fact that there were other Assistant Teachers senior to him in the NAC and therefore, he could not reasonably expect to be appointed as headmaster overriding the claims of those senior to him.

19. The Court is unable to accept the plea of the Petitioner that there was a legitimate expectation that the Petitioner would continue to serve as Headmaster after takeover of the school, first by NAC (ST) Rourkela, and later by the Government of Odisha itself. Consequently, the Court is unable to find any illegality or error committed by the OAT in concluding that the Petitioner is estopped from raising any plea as to the validity of the altered terms and conditions of service after takeover of the school by NAC (ST) Rourkela.

20. In Dhaneswar Behera (supra) no issue arose from the fact that the Petitioner there had given an undertaking to abide by the terms and conditions of the takeover of the school. In those circumstances, this Court held that there could not be any alteration of the terms and conditions to the determent of the teacher. However, here the Petitioner has voluntarily given the undertaking and subsequently, there was no attempt by him to resile from it on the ground that it was obtained under compulsion or duress.

21. Consequently, this Court is unable to find any error in the impugned order of the OAT passed in T.A. No.1 (C) of 2006.

22. The writ petition is dismissed, but in the circumstances, with no order as to costs.

23. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.

(S. Muralidhar) Chief Justice

(S.K. Panigrahi) Judge S.K.Jena/PA