Tribikram Behera vs State Of Odisha & Others
2023 Latest Caselaw 12465 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                     WPC(OAC) No.3528 of 2015

An application under Section 19 of the State Administrative
Tribunal's Act, 1985.
                           ..................

    Tribikram Behera                          ....                     Petitioner

                                      -versus-

    State of Odisha & Others                  ....            Opposite Parties


            For Petitioner        :       M/s. S. Das, R.P. Dalai, S.
                                          Jena, S.K. Samal, S.P. Nath &
                                          S.D. Routray.

            For Opp. Parties :            M/s. N.N. Satapathy,
                                          Standing Counsel for School
                                          & Mass Education
                                          Department

   PRESENT:


      THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY


     -----------------------------------------------------------------------------
      Date of Hearing:17.01.2023 and Date of Order:31.01.2023
     -----------------------------------------------------------------------------


     Biraja Prasanna Satapathy, J.

1. The present Writ Petition has been filed challenging

the order dated 14.08.2015 passed under Annexure-7 and

with a further direction to the Opposite Parties to approve

the appointment of the Petitioner as Addl. Section Teacher

in Maneswar High School, Maneswar and also to extend the

service benefit as has been extended to similarly situated // 2 //

teacher by allowing untrained scale w.e.f. 7.6.1994 till the

Petitioner acquired the B. Ed training on 24.03.1999.

2. Factual Matrix giving rise to filing of the present Writ

Petition is that the Petitioner was appointed as an Addl.

Sedition Teacher against Class-VIII(C) on 19.02.1991 by the

erstwhile Managing committee of Maneswar High School in

the district of Sambalpur. Pursuant to the said order

issued under Annexure-1, the Petitioner joined in the post

in question on 20.02.1991.

2.1. The appointment of the Petitioner as an Addl. Section

Teacher against Class-VIII(C) is also admissible at the time

of his appointment as per the yardstick prescribed by the

Government on 08.04.1981. Subsequent to such

appointment of the Petitioner, where he joined on

20.02.1991, when the Managing Committee of the School

recommended the case of the Petitioner for his approval,

Opposite Party No.3 vide his letter dated 01.05.1991 under

Annexure-2 forwarded the proposal for approval to the

Opposite Party No.2 vide letter dated 01.05.1991 under

Annexure-2. While the matter stood thus, the School was

taken over w.e.f. 07.06.1994 and the services of the staffs of

the Schools were approved vide order dated 29.04.1995

// 3 //

ignoring the claim of the Petitioner, the Petitioner

approached the Tribunal in O.A No.3025/2005. The

Tribunal vide order dated 23.12.2008 disposed of the said

O.A by remitting the matter to the Opposite Party No.1 for

appropriate action at his join.

2.2. It is contended that the Opposite Party No.1 without

proper appreciation of the claim raised by the Petitioner

and his appointment as Addl. Section Teacher as per the

prevailing yardstick and recommendation made by the

Inspector of School under Annexure-2, rejected the claim of

the petitioner vide the impugned order dated 14.08.2015

under Annexure-7.

3. Mr. S.D. Routray, learned counsel for the Petitioner

vehemently contended that by the time the Petitioner was

appointed as an Addl. Section Teacher against Class-VIII(C)

vide order dated 19.02.1991 of the Managing Committee of

Maneswar High School in the district of Sambalpur, the

Post was admissible as per the yardstick prescribed by the

Government vide Circular dated 08.04.1981.

3.1. It is also contended that subsequent to his joining in

the post on 20.02.1991 when the Managing Committee of

the School forwarded the application of the Petitioner for

// 4 //

his approval and for release of his salary under the direct

payment scheme, the then Opposite Party No.3 forwarded

the matter to the Director vide letter dated 01.05.1991

under Annexure-2. Not only that pursuant to the order

passed by this Court on 02.09.1993 in OJC No.5914 of

1993 in the proceeding of the meeting dated 31.07.1995

under Annexure-3, the Committee recommended the case

of the Petitioner for his approval. But thereafter the case of

the Petitioner was never considered and approved though a

number of similarly situated Addl. Section Teachers

appointed in non-Govt. Aided High School were approved

vide order issued under Annexure-4.

3.2. The Petitioner challenging such action of the Opposite

Parties in not approving his service approached the

Tribunal in O.A No.3025 of 2005 and the Tribunal vide

order dated 23.12.2008 disposed of the matter with a

direction on the Opposite Party No.1 to consider the case of

the Petitioner. In the said O.A, it was also the prayer of the

Petitioner to approve his appointment as an Addl. Section

Teacher as against Class-VIII(C) w.e.f. 07.06.1994 in

untrained scale of pay and with trained graduate scale of

pay w.e.f. 24.03.1999, as the Petitioner in the meantime

acquired the B.Ed. qualification on 24.03.1999.

// 5 //

3.3. But it is contended that the Opposite Party No.1

without proper appreciation of the Petitioner's claim and

without taking into account the decision of this Court

rendered in the case of Bibekananda Das vs. State of

Orissa & Others reported in 1997(II) OLR-142 refused to

approve the service of the Petitioner as prayed for by the

Petitioner while issuing the impugned order dated

14.08.2015 under Annexure-7.

3.4. It is accordingly contended that since the Petitioner

was appointed as per the yardstick and he acquired the

B.Ed qualification on 24.03.1999, the claim of the

Petitioner seeking his approval w.e.f. 07.06.1994 by

allowing him untrained scale of pay in terms of the decision

of this Court in the case of Bibekananda Das and in the

trained graduate scale of pay from the date he acquired the

B.Ed qualification is liable to be allowed by this Court by

quashing the order at Annexure-7.

4. Mr. N.N. Satapathy, learned Standing Counsel for

School & Mass Education Department on the other hand

made his submission basing on the stand taken in the

counter affidavit filed by the Opposite Party No.3. It is

contended that the Managing Committee of Maneswar High

// 6 //

School in the district of Sambalpur appointed the Petitioner

vide order dated 19.02.1991 without following the

procedure as laid down in Orissa Education Act and Orissa

Education (Recruitment and Conditions of Service) Rules,

1974.

4.1. It is contended that for appointment of Addl. Section

Teacher, the Managing Committee of the School has to

follow the instruction issued by the Joint Director, Public

Instructions (School), Odisha, Bhubaneswar vide letter

dated 22.09.1975 under Annexure-A/3. As per the said

instructions, the Managing Committee of the School never

moved the Opposite Party No.3 for according sanction to

the Managing Committee to open Class-VIII(C).

4.2. It is contended that without obtaining any sanction as

required the Managing Committee on its own appointed the

Petitioner by opening Class-VIII(C). It is further contended

that as provided under the Orissa Education (Recruitment

and Conditions of Service) Rules, 1974, which came into

force w.e.f. 01.04.1975, the appointment of the Petitioner

was required to be made as provided under Sub-Rule-8 of

Rule-5 of the said rules.

4.3. It is also contended that by the time the Petitioner

// 7 //

was appointed as an Addl. Section Teacher against Class-

VIII(C), he was not having the required training

qualification and accordingly the Petitioner was not eligible

and entitled for his appointment on 19.02.1991. It is

accordingly contended that since the Petitioner was not

having the requisite qualification and his appointment was

made without prior sanction of the competent authority,

the very appointment of the Petitioner is void ab-initio and

no illegality or irregularity has been committed while

rejecting his claim vide the impugned order under

Annexure-7.

5. A rejoinder affidavit was filed by the learned counsel

for the Petitioner denying the contention raised by the

Opposite Party No.3. It is contended that when similar

claim was rejected by the Tribunal vide its order dated

25.04.2012 in O.A No.2821/2007, the same was challenged

before this Court by the Petitioner therein in W.P.(C)

No.20951 of 2012. This Court relying on the judgment

passed on 17.11.2005 in W.P.(C) No.14895 of 2004 allowed

the Writ Petition vide order dated 30.01.2014. Learned

counsel for the Petitioner also relied on the order passed by

this Court in W.P.(C) No.5864/2004 and W.P.(C) No.14895

// 8 //

of 2004, which was relied on by this Court while allowing

the prayer in W.P.(C) No.20951 of 2012.

6. I have heard Mr. D. Routray, learned counsel for the

Petitioner and Mr.N.N. Satapathy, learned Standing

Counsel for School & Mass Education Department. On the

consent of the learned counsel appearing for both the

Parties, the matter was taken up for final disposal at the

stage of admission and disposed of by the present order.

7. Having heard learned counsel for the Parties and after

going through the materials available on record, this Court

finds that prior to the appointment of the Petitioner as an

Additional Section Teacher against Class-VIII(C), the then

Managing Committee of the School never obtained the prior

permission of the competent authority as required in terms

of the Government circulars dtd. 25.09.1975 under

Annexure-A/3. It is also found that by the time the

Petitioner was appointed as an Addl. Section Teacher

against Class-VIII(C), vide order dated 19.02.1991 under

Annexure-1, he was not having the required training

qualification.

7.1. This Court after going through the materials available

// 9 //

on record also found that no document has been enclosed

by the Petitioner showing the sanction obtained by the

Managing Committee of the School prior to his appointment

as an Addl. Section Teacher. The plea of the petitioner that

in view of the decision of this Court in the case of

Bibekananda Das, the Petitioner's services is required to

be approved by allowing him untrained scale of pay from

07.06.1994 and the trained graduate scale of pay from

24.03.1999 i.e. from the date he acquired B.Ed qualification

is also not acceptable as in the case of Bibekananda Das,

this Court allow the said claim as the Petitioner therein was

appointed prior to issuance of circular by the Government

vide Letter No.1074 EYS, dated 01.01.1991. Since after

05.01.1991 in view of the Government letter issued in

question, there is no provision for appointment of

untrained teacher, the decision in the case of

Bibekananda Das, as per the considered view of this

Court is not applicable to the case of the Petitioner. The

view expressed by this Court in the case of Bibekananda

Das in Paragrapha-10 and 11 of the judgment are quoted

hereunder:-

"10. Let us now turn to some of the Judgments and orders of this court referred to by the counsel for the parties.

// 10 //

In Sarat Chandra Sahoo v. State of Orissa, (O.J.C.No.3233 of 1989 disposed of on 10.7.1990) one of the questions which fell for consideration was whether under 1972 Rules, an untrained graduate could be appointed in the Junior Grade (Assistant Teacher). In paragraph-5 of the Judgment, the Court opined that there is no requirement in the 1972 Rules that appointment to the junior grade shall necessarily be of only trained graduates. By referring to Rule 7 and Rule 14 (2) of the 1972 Rules the Court held that requirement to the posts may be either of trained graduate or of untrained graduate.

Gouri Devi v. State of Orissa (O.J.C. No. 1024 of 1990 disposed of on 17.6.1993) the ratio of Sarat Chandra Sahoo (Supra) was followed "and by referring to another case in Muralidhar Pati v. State of Orissa (O.J.C. No.6165 of 1991 decided on 11.9.1992) this Court observed that there is no bar on the part of the Inspector in giving approval to the appointment of an untrained teacher though while approving he may insert a condition that the appointee unless acquires B. Ed. qualification within a specified period may be replaced by a trained hand. The Court observed that appointment of a teacher having graduate qualification may be lawfully approved and reasonable time may be granted to him for acquiring B. Ed. qualification, as B. Ed, qualification is necessary for a candidate to fill a permanent post of assistant teacher in a High School.

Anusuya Prusty v. State of Orissa (O.J.C.No.4972 of 1994 disposed of on 10.11.1994) the petitioner's grievance was with regard to non-payment of her monthly salary for a specified period. The claim was opposed by the State and its officials on the following two grounds:

(i) As she had not acquired the qualification of a trained graduate, she was not entitled to receive trained graduate scale of pay; and

(ii) She was ineligible to be appointed in view of the Government letter No. 1074/EYS dated 5.1.1991 (Annexure-C/3) in the present case.

The Court held that although the petitioner had not acquired the prescribed qualification of a trained graduate, she cannot be denied the untrained (graduate) scale of pay for the period in question.

Regarding letter dated 5.1.1991 (Annexure-C/3), the Court held that it cannot operate as a bar against the petitioner as she was appointed prior to the issuance of the said letter.

// 11 //

The State Counsel on the other hand, by referring to order dated 1.2.1994 passed on O.J.C. No. 2564 of 1993 (Smt. Bindulata Mohanta v. State of Orissa) contended that the petitioner's appointment has rightly been dis-approved. In that case, the petitioner sought for a direction to approve her appointment against the sectional post. The Court found that before her appointment as a section teacher, the Managing Committee did not seek permission from the education authority for creation of sectional post on the basis of the roll strength of a particular class. In that view of the matter, the Court observed that the Managing Committee was not justified in appointing the sectional teacher by creating posts and passing on the financial burden on the educational authority. The said case is distinguishable in view of the clear fact that the State Government have already approved the post of the additional section teacher held by the petitioner in letter No.17696 dated 1.6.1995 at Annexure-4.

11. From the foregoing discussions, the following conclusions unhesitatingly emerge:

(i) During the relevant time, an untrained (graduate) teacher was eligible to be appointed as an assistant teacher in a non-government (aided) High School. He was not eligible to receive trained (graduate) scale of pay. Untrained (graduate), scale of pay, however, was admissible to him. The petitioner being a pre 1993 appointee, his appointment cannot be dis-approved merely because he does not possess the training qualification (B. Ed.)

(ii) the Government instructions contained in letter No. 1074/ EYS. dated 5.1.1991 at Annexure-C/3 cannot be a bar against the petitioner in view of the fact that he was appointed on 6.11.1989 prior to the issuance of the said letter; and

(iii) the State Government has already approved the post (with petitioner's name) against additional section in Pipli High School, Pipli".

7.2. Since this Court from the materials available on

record finds that the Managing Committee of the School

prior to appointing the Petitioner has not obtained the

required sanction and the Petitioner though was appointed

after 05.01.1991, but he was not having the required

// 12 //

training qualification, at the time of his appointment.

Therefore, the very appointment of the petitioner as per the

view of this Court is not legal and justified.

Hence, in any view of the matter, this Court finds no

illegality or irregularity with the order passed by the

Government-Opposite Party No.1 under Annexure-7. This

Court is not inclined to entertain the prayer as made in the

Writ Petition and dismiss the same.

8. Accordingly, the Writ Petition stands dismissed.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 31st of January, 2023/ (Subrat)

Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 18:00:34