Orissa High Court
A.F.R. Bidyadhar Naik vs Joint Director (Schools) on 1 May, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No30762 of 2011
(Application under Articles 226 and 227 of the Constitution of
India)
A.F.R. Bidyadhar Naik ... Petitioner
-versus-
Joint Director (Schools),
Office of Regional Directorate of
Education & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Sadasiva Patra,
Advocate.
-versus-
For Opposite Party
Nos.1,4 & 5 : Mr. S.N.Patanaik, A.G.A
For Opposite Party No.2: Mr. R. Acharya
For Opposite Party No.3: Mr. J. Biswal
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
01.5.2024.
Sashikanta Mishra,J. The Petitioner, in the present Writ
Petition, seeks to challenge the order dated 29.10.2011
passed by the Joint Director (Schools), Regional
Directorate of Education, Bhubaneswar (Opposite
Party No.2) in Appeal Case No.356/1998 whereby the
then Inspector of Schools, Mayurbhanj Circle,
Baripada was directed to approve the appointment of
present Opposite Party No.3 as 3rd Peon of the School.
2. Bereft of unnecessary details, the facts of the
case are that Panchayat High School, Nada, was
established in the year 1989 and received recognition
of the Government vide order dated 29.6.1991. One
Gangadhar Senapati, who was working as Night
Watchman-cum-Sweeper, being the 3rd Post, resigned
from service in 1993. Consequently, an advertisement
was issued by the Management for filling up the
vacancy. Five persons including the Petitioner applied
pursuant to such advertisement out of whom the
Petitioner was selected. The Managing Committee vide
Resolution No.40 dated 15.5.1993, resolved to appoint
the Petitioner as the 3rd Peon. He joined as such on
22.5.1993. The Petitioner belongs to the Scheduled
Tribe category. The Managing Committee submitted
proposal for approval of its staff including the
Petitioner. By order dated 30.3.2009 issued by the
Inspector of Schools, Mayurbhanj (Opposite Party
No.4), the Petitioner's appointment was approved with
eligibility to receive grant-in-aid by way of block grant
representing 60% of the emoluments in the Revised
Scale of Pay Rules, 1998 w.e.f. 01.4.2008. While the
matter stood thus, the present Opposite Party No.3
filed an appeal before the Director, Secondary
Education, being Appeal No.356/1998 for a direction
to allow him to function as 3rd Peon with all
consequential benefits and for declaration that the
appointment of the present Petitioner as such, was
illegal. It was claimed by him that he was appointed
on 07.7.1993 in the 3rd Post whereas the Petitioner was
appointed later. It was further alleged that he was not
to come to the School as the 4th Peon was not
admissible. After receiving notice, the Managing
Committee appeared before the Director and filed its
counter disputing the claim of the Opposite Party No.3.
It was stated that Opposite Party No.3 was appointed
as the 4th Peon and continued till 1994 but after
introduction of the staffing pattern of the Government,
he automatically disappeared. It is further stated by
the Petitioner in the present writ petition that since
Opposite Party No.3 was appointed as 4th Peon, which
was a non-existent post at the relevant time, he could
not have been adjusted against the vacancy arising
against the 3rd Post as claimed by him. Despite such
facts however, the appellate authority on complete
non-application of mind held that the Opposite Party
No.3 is the proper claimant for the post of 3 rd Peon of
the School and any appointment and approval made
against the said post is invalid. The Inspector of
Schools was thus directed to approve his appointment
as 3rd Peon. On such facts, the Petitioner has
approached this Court seeking the following relief;
"It is therefore prayed that this Hon'ble Court
may graciously be pleased to admit the case,
call for the records and after hearing the parties
issue a writ/writs in the nature of a writ of
certiorari quashing the order dated 29.10.11
passed in Appeal Case No.356/1998 under
Annexure-8 after declaring the same as illegal."
3. The private Opposite Party No.3 alone has filed a
counter. It is stated that the Opposite Party No.3 was
appointed on 3.7.1991 as 4th Peon. When the vacancy
arose due to resignation of the incumbent 3rd Peon
Gangadhar Senapati, the Managing Committee
selected him and issued appointment order on
7.7.1993. The then Secretary-cum-Headmaster,
however appointed the Petitioner as the 3rd Peon on
8.8.1994 asking Opposite Party No.3 to work and sign
as the 4th Peon knowing very well that the 4th Peon is
not admissible. As such, the Opposite Party No.3
submitted complaint before the Inspector of Schools on
10.8.2014, but to no avail. It is further, alleged that
the Secretary-cum-Head Master collected huge amount
from newcomers and took bribe to appoint the
Petitioner by ousting Opposite Party No.3. Thereafter,
he was not allowed to function in the School from
7.7.1995 nor allowed to sign in the attendance register.
Since his complaints did not evoke any response, he
filed appeal before the Director. The Director directed
the Inspector of Schools to conduct inquiry, who
submitted a detailed report clearly indicating the fact
of corruption and tampering of documents relating to
appointment of the Petitioner and of suppression of
facts. Considering such report, the Director has rightly
allowed the appeal.
4. Heard Mr. Sadasiva Patra, learned counsel for
the Petitioner, Mr. S.N.Patanaik, learned Addl.
Government Advocate for the State and Mr. J. Biswal,
learned counsel appearing for the private Opposite
Party No.3.
5. It is argued by Mr. Patra that the impugned
order dated 29.10.2011 is without jurisdiction since by
such time the Institution had come into the grant-in-
aid fold and therefore, the Director was no longer
competent to hear the same. The State Education
Tribunal is the proper forum, which the Opposite Party
No.3 should have approached. On merits, it is
submitted by Mr. Patra that the Petitioner was
appointed after being selected in a selection process,
which was never challenged at the relevant time, by
Opposite Party No.3. Even on his own admission, the
Opposite Party No.3 was appointed against 4th post
which was not admissible to the School. That apart, he
did not approach the proper forum after being allegedly
refused work by the Headmaster. Only when the
School came into grant-in-aid fold that the Opposite
Party No.3 challenged the appointment and approval of
the Petitioner. Mr. Patra further argues that only on
the basis of the so-called initial date of appointment,
the Opposite Party No.3 cannot be treated as Senior to
the Petitioner as such appointment cannot be treated
as valid being against a non-yardstick post.
6. Mr. Patanaik, learned Addl, Government
Advocate, submits that the order of the Director is
based on the findings of the inquiry conducted by the
Inspector of Schools who, after verifying all the relevant
records of the Institution found the Opposite Party
No.3 senior to the Petitioner. Therefore, according to
Mr. Patanaik, the impugned order does not warrant
any inference.
7. Mr. J. Biswal, learned counsel for the Opposite
Party No.3, would argue that there is no dispute that
the Opposite Party No.3 was appointed as 4th Peon by
order dated 03.7.1991 of the Management whereas the
Petitioner was appointed most illegally as the 3rd Peon
on 22.5.1993. Further, by order dated 07.7.1993 the
Opposite Party No.3 was appointed against the 3rd
post. However, his appointment was not approved and
the Opposite Party No.3 was continued to be shown as
4th Peon in the records of the School. These facts are
clearly borne out in the report submitted by the
Inspector of Schools before the Director, who rightly
held that being senior to the Petitioner, the Opposite
party No.3's appointment deserves to be approved.
8. As regards competence of the Director to
adjudicate the appeal, this Court finds that it is the
case of the Opposite Party No.3 that he was prevented
from performing his duties and signing in the
Attendance Register from 07.7.1995. It goes without
saying that such prevention amounts to termination of
service, which the Opposite Party No.3 should have
challenged before the appropriate forum within the
stipulated time. Instead, he woke up from slumber in
the year 1998 and preferred the so-called appeal before
the appellate authority. Of course, this Court would
hasten to add that since at the relevant time the
School had not come within the grant-in-aid fold, the
Regional Director was competent to entertain the
appeal but then in view of the gross delay, of which
nothing has been said in the impugned order, the
appeal could not have been entertained. Moreover, the
School came into grant-in-aid fold w.e.f. 01.4.2008 i.e.
during pendency of the appeal. Since the appeal
involved the question of termination of services of the
Opposite Party No.3 by way of refusal of employment
as also approval of appointment for the purpose of
receiving grant-in-aid, the Regional Director ceased to
have jurisdiction since the School had become a non-
Government aided educational institution within the
meaning of Section 2(b) of the Odisha Education Act,
1969. As such, it was the State Education Tribunal,
which was the competent forum to adjudicate the
matter in terms of Section 10-A and or 24-B of the Act,
as the case may be. Therefore, in all fairness, the
Regional Director should have either transferred the
appeal to the State Education Tribunal for disposal or
returned the same to the appellant-Opposite Party
No.3 for agitating his grievance before the Tribunal. In
a similar case, a Division Bench of this Court, in the
case of Managing Committee of Mahavir Girls' High
School Vs. State of Odisha1, held as follows;
"The scenario of facts reveals that opposite party
no.4 was appointed as a teacher in the year
1997 in the aforesaid school. Her services were
terminated in the year 2000. Being aggrieved she
preferred an appeal before the Regional Director
of Education. When the matter stood thus, in the
year 2007 the school in question received aid
and became an aided educational institute.
Thereafter it is submitted that the Regional
Director of Education lacked the jurisdiction to
decide the appeal and as such the order passed
is a nullity in the eye of law.
After hearing learned counsel for the
petitioner and learned counsel for the opposite
parties, this Court finds that in view of the
changed circumstance and as the institution had
become an aided one, appeal in question should
not have been heard by the Regional Director.
Law is well settled that an appeal lies against
the order of termination of a teacher of an
unaided educational institution to the Director
and as such once the school was declared as an
aided educational institution as defined under
Section 2 (b) of the Orissa Education Act, the
provisions of Section 10 (a) of the Act are
attracted and the dispute was required to be
agitated before the Orissa Education Tribunal."
9. The present case stands on the same footing
inasmuch as the School in question became an aided
educational institution during pendency of the appeal
and therefore, the Regional Director lacked jurisdiction
to adjudicate upon the same. The impugned order is
rendered unsustainable in law on such ground alone.
10. Even otherwise, on merits, it is seen that it is
common ground that the Petitioner was appointed by
order dated 22.5.1993 as 3rd Peon. It is also not
disputed that by order dated 30.3.2009 his
appointment was approved holding him eligible to
receive grant-in-aid by way of block grant @ 60% w.e.f.
1.4.2008. On the other hand, the Opposite Party No.3
was appointed on his own admission as the 4th Peon by
order dated 03.7.1991 of the Managing Committee. It
is stated at the bar that as per the yardstick
dtd.8.7.1981 only 3 posts were admissible to the
School at the relevant time. This fact is clearly borne
out from the counter filed by the Managing Committee
before the appellate authority and duly reflected in the
impugned order by the Director. Upon resignation of
the incumbent of the 3rd post, the Petitioner was
appointed after undergoing a selection process.
According to the Inspector of Schools, the Opposite
Party No.3 being the senior and as per rules of order of
precedence relating to 'first come first serve', his name
ought to have been given precedence for the purpose of
fixation of inter se seniority. This Court finds the above
reasoning strange inasmuch as when the initial
appointment itself is invalid being against a non-
existent (non-yardstick) post, how could he be given
precedence over a duly selected candidate when a
vacancy arose in the 3rd post. Of course, it was open to
the Opposite Party No.3 to participate in the selection
process at the relevant time, but he does not appear to
have done so for reasons not spelt out in the pleadings
of the parties. This is a fundamental mistake
committed by the Inspector of Schools in his report
which surprisingly the Director has accepted giving
thereby a complete go-bye to the earlier order of
approval of the Petitioner against the 3rd post. The
above finding therefore, warrants interference.
11. Thus, viewed from any angle, the impugned
order cannot be sustained in the eye of law. The Writ
Petition is therefore, allowed. The impugned under
Annexure-8 is hereby set aside.
...................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Designation: Addl. Deputy Registrar-cum-Addl. Principal
Location: High Court of Orissa, Cuttack
Date: 02-May-2024 12:14:41
