Bairagi Charan Sahoo vs State Of Odisha & Others
2022 Latest Caselaw 4637 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.C (OAC) NO.468 OF 2017

                 (An application under Section 21 of the Administrative Tribunals Act)


                        Bairagi Charan Sahoo                    ...        Petitioner


                                                 -versus-

                       State of Odisha & others                ...       Opposite Parties


                        Advocates appeared in the case through hybrid mode:


                       For Petitioner                 : Shri Bansidhar Satpathy,
                                                        Advocate

                                                   -versus-

                       For Opposite Parties          : Shri R.N.Acharya,
                                                       Standing Counsel,
                                                       School & Mass Education
                                                       Department

                   ---------------------------------------------------------------------------
                       CORAM:

                                    JUSTICE SASHIKANTA MISHRA

                                              JUDGMENT

13.9.2022.

Sashikanta Mishra,J. The Petitioner was appointed as Science Attendant (Peon) in

Kanika High School, Ayatana in the district of Kendrapara vide

order dated 2nd January, 1991 of the Secretary of the Managing

Committee of the School. The School was an Aided Institution

within the meaning of Section 3(b) of the Odisha Education Act,

1969. The School was taken over by the Government w.e.f. 7th

June, 1994. Since the Petitioner's appointment was not approved,

he approached this Court in O.J.C No.6859/1995. Pursuant to

direction of this Court, his appointment was approved vide order

dated 8th February, 1996 of the erstwhile Inspector of Schools,

Kendrapara w.e.f. 4th January, 1991. Subsequently, his salary was

stopped from the month of March, 1996 for which he approached

the erstwhile Odisha Administrative Tribunal in O.A.

No.3953(C)/1997, which was disposed of with a direction to the

authorities to pay of his salary. Subsequently, the Inspector of

Schools by order dated 27th February, 2003 directed the

Headmaster of the School to discontinue the services of the

Petitioner for which he approached the Tribunal again in O.A.

No.1118(C)/2003, inter alia, contending that his case is squarely

covered by the ratio of the case of State of Odisha and others v.

Rajendra Kumar Das and another; reported in (2003) 10 SCC

411. The Tribunal disposed of the said O.A. directing the

Commissioner-cum-Secretary, School and Mass Education

Department (Opposite Party No.1) to consider the original

application along with its annexures as representation and to pass

appropriate orders. The Opposite Party No.1 however, by order

dated 13th December, 2010 rejected the claim of the Petitioner. The

said order (Annexure-1) is impugned herein. The Petitioner

originally approached the Tribunal in O.A. No.468(C)/2017

seeking the following relief:-

"In view of the facts stated in the paragraph-6 above, the humble applicant fervently prays this Hon'ble Tribunal to be graciously pleased to issue notice to the Respondents, call for relevant records and after hearing the counsel of the parties, issue a direction directing to the Respondents particularly to the Commissioner- cum-Secretary, School and Mass Education Department, Odisha, the Respondent No.1 to approve the adjustment of the applicant in the post of Peon and release his arrear and current salary in terms of the decision of the Hon'ble Supreme Court in the case of State of Orissa and others vrs. Rajendra Kumar Das and another reported in 2004(1) OLR (SC) 517 within a stipulated period and/or pass such other order or direction as deems fit and proper in the interest of justice."

The above O.A. has since been transferred to this Court and

registered as the instant Writ Petition.

3. A counter affidavit has been filed by the District Education

Officer, Kendrapara (Opposite Party No.3). It is admitted that the

Petitioner's appointment was approved as Science Attendant w.e.f.

4th January, 1991 in the scale of pay of Rs.750-940/-. The

impugned order is, however, sought to be justified by stating that

three peons senior to the Petitioner were getting their salary as per

Government Rules and he being the junior most in the non-

sanctioned post, his case was not considered. It is further stated that

his post was not created in the new staffing pattern. It is also stated

in the counter that one Bansidhar Bark was previously working in

the School as a Night Watchman-cum-Sweeper from 2nd January,

1992 to 2nd August, 1978 duly appointed by the Managing

Committee, but was removed from service because the School

faced acute financial stringency. Subsequently, in obedience to

order dated 19th July, 1993 of this Court in O.J.C. No.4892/1992,

Sri Barik was reappointed. Since the post of 4th Peon was not

created in Government Resolution dated 12th April, 1994, there is

no scope to accommodate the Petitioner in the 4th Peon post and

moreover he was engaged by the erstwhile management against

non-sectioned posts without any approval and beyond the

yardstick.

The Petitioner has filed a rejoinder to the said counter

reiterating the averments of the Writ Petition and by stating that

he was never appointed as 4th Peon rather he was appointed as a

Science Attendant and such appointment was approved by order

dated 8th February, 1996 w.e.f. 4th January, 1991. Therefore, the

Petitioner being appointed prior to appointment of Bansidhar Barik,

he should not be treated as the junior most Peon.

4. Heard Shri B. Satpathy, learned counsel for the Petitioner,

and Shri R.N.Acharya, learned Standing Counsel appearing for the

School and Mass Education Department.

5. It is contended by Shri Satpathy that the Petitioner having been

duly appointed on 2nd January, 1991 as Science Attendant as per

the 1981 yardstick and his appointment being duly approved by the

then Inspector of Schools, Kendrapara, he cannot be treated as the

so called 4th Peon and denied the benefit of approval of his

appointment and for release of his arrear and current salary in terms

of the decision of the Supreme Court in the case of Rajendra

Kumar Das (supra). It is further argued that the appointment of

Bansidhar Barik was a fresh appointment and made as per

Resolution dated 7th October, 1993. As such, said Bansidhar Barik

cannot be treated as senior to the Petitioner. Since the services of

Bansidhar Barik have been approved ignoring the case of the

present Petitioner, the same amounts to gross discrimination and

illegality.

6. Per contra, Shri R.N. Acharya argues that the post of 4th peon is

not available in the standard yardstick and, therefore, the

Petitioner's appointment cannot be validated. Moreover, he was

appointed by the private management against a non-sanctioned

post. As per yardstick, three posts of Peon have been sanctioned

and they are getting salary. Therefore, there is no infirmity or

illegality in the order passed by the Opposite Party No.1.

7. The facts of the case are not disputed. The Petitioner was

admittedly appointed on 2nd January, 1991 and his services were

approved w.e.f. 4th January, 1991 after the School was taken over

by the Management. According to the Petitioner, as per the 1981

yardstick, apart from three peons a post of Daftary is also

admissible which being a promotional post, is to be filled up from

amongst the three peons having regard to their inter-se seniority.

The 1981 yardstick also permits engagement of a Science

Attendant, the post in which the Petitioner was appointed and his

services were approved. Learned counsel for the Petitioner has laid

much emphasis on the ratio decided in the case of Rajendra Kumar

Das (supra); wherein it was held as follows:-

"11. It is to be noted that the post of "daftary" carries higher scale of pay and is a promotional post for Class- IV employees. That being the position, the High Court was not justified in directing approval of the writ petitioners' services as "fourth peon." But one significant aspect cannot be lost sight of. If the school was entitled to have a "daftary", certainly the appointment was to be made by promoting one of the three persons i.e. office peon, office attendant and night watcher-cum-sweeper, there being no other Class-IV post in the institution. It is for the Managing Committee of the institution to decide who is to be promoted and thereafter seek approval of the authorities concerned. That way the claims of the writ petitioners could have been considered by the authorities, on being appropriately moved by the management. It is undisputed that the writ petitioners were appointed by the Managing Committee, may be, under a misreading of the relevant Government orders.

12. We, therefore, while allowing these appeals direct that the management of the institution concerned shall move the authorities concerned for approval to the promotional appointment of a Class-IV employees, as "daftary". Simultaneously, it can also recommend for appointment to Class-IV post, in case approval is accorded to the recommendation for appointment of "daftary" on promotion. The decision on both motions shall be taken within three months from the date of submission of the recommendation in accordance with law, keeping in view the operative yardsticks in force at the time the appointments were made. Even if there has been refusal earlier, the matter shall be reconsidered in the light of what has been stated above."

There is no dispute that for applicability of the

aforementioned yardstick of 1981, the roll strength of the School

must be 100. There is no specific averment in this regard by the

Petitioner either in the Writ Petition or in the rejoinder. The law as

it stands after the case of Rajendra Kumar Das (supra) is that the

senior most among the three Class-IV employees can be promoted

as Daftary and the consequential vacancy can be filled by adjusting

the so called 4th Peon. This depends on the roll strength of the

School. If the roll strength meets the criteria laid down in the 1981

yardstick obviously, the claim of the Petitioner cannot be denied.

But as already stated, no information is forthcoming in this regard

either from the Petitioner or from the State authorities in their

counter. As regards the further argument that the Petitioner has to

be treated as senior to the said Bansidhar Barik, who was

reappointed in the year 1993, the same is a matter that cannot be

adjudicated in the present Writ Petition as he is not a party. It is for

the management to take a call in this regard.

8. Be that as it may, this Court reiterates that if the School is

found to have met the criteria relating to roll strength as per the

1981 yardstick, the ratio in the case of Rajendra Kumar Das

(supra) would apply in full force. Consequently, one of the three

Class-III employees could be given promotion as Daftary and the

vacancy so created, can be adjusted by the so called 4th Peon and

his service can be duly approved. A perusal of the impugned order

reveals that Opposite Party No.1 has simply held that the post of

4th Peon is not available in the standard yardstick without

rendering a specific finding as to if the 1981 yardstick was

applicable or not. Moreover, no effort seems to have been made by

Opposite Party No.1 to examine the applicability of the ratio

decided in the case of Rajendra Kumar Das (supra) to the facts of

the case.

9. For the foregoing reasons, therefore, the impugned order cannot

be sustained in the eye of law and is therefore, quashed. The matter

is remitted to the Opposite Party No.1 to consider the

representation of the Petitioner as directed by the Tribunal in O.A.

No.1118(C)/2003 afresh after granting due opportunity of hearing

to the Petitioner and by rendering a specific finding supported by

reasons as regards applicability of the decision of the Supreme

Court in the case of Rajendra Kumar Das (supra).The above

exercise shall be completed within a period of two months from the

date of communication of this order or on production of the

certified copy thereof by the Petitioner.

10. If the Opposite Party No.1 finds the Petitioner's case to be

covered by the ratio of Rajendra Kumar Das (supra), appropriate

orders shall be passed conferring all admissible service and

financial benefits on him. The entire exercise should be completed

within a period of three months.

11. The Writ Petition is disposed of accordingly.

................................

                                              Sashikanta Mishra,
Ashok Kumar Behera                                 Judge