Orissa High Court

Brajabandhu Mallick vs State Of Odisha & Others ... Opposite ... on 4 March, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                             W.P.(C) No.14680 of 2013

        (Application under Articles 226 and 227 of the Constitution of
        India)


                Brajabandhu Mallick                        ...               Petitioner

                                             -versus-

                  State of Odisha & others ...                             Opposite Parties


         Advocates appeared in the case through hybrid mode:


                For Petitioner                      : Mr.Sidheswear Mallik,
                                                      Advocate.

                                             -versus-

               For Opposite Parties
                                                    : Mr. S.N.Patnaik, A.G.A

             ---------------------------------------------------------------------------
                                            CORAM:
                            JUSTICE SASHIKANTA MISHRA

                                        JUDGMENT

04.3.2025.

Sashikanta Mishra,J. The Petitioner was appointed as

Headmaster of Police High School, Phulbani as per the

resolution dated 14.7.1986 of the Managing Committee

of the School. The School, at the relevant time, was a

private educational institution managed by the District

Police with the S.P., Phulbani being the President of

the Managing Committee. The School received grant-

in-aid w.e.f. 01.6.1994. The appointment of the

Petitioner as in-charge Headmaster was approved by

the erstwhile Inspector of Schools, Phulbani vide order

dated 01.11.1995 for the purpose of releasing grant-in-

aid. It is stated that as per yardstick, one post of

Headmaster was admissible to a High School. On

31.3.1997, the Managing Committee in its resolution

recommended for payment of Headmaster's Scale of

Pay to the Petitioner as he had completed 7 years of

experience calculated from 16.7.1993. Since then the

Petitioner has been continuing in the post of

Headmaster, but the scale of pay attached to the post

was never paid. Since persons similarly situated were

paid the scale of pay attached to the post of

Headmaster, the Petitioner, being deprived has

approached this Court with the following prayer;

"Under the aforesaid facts and circumstance the petitioner humbly prays that this Hon'ble Court may graciously be pleased to;

(1) Direct order that the petitioner shall be allowed Headmaster's scale of pay with effect from 1.6.1994 i.e. the date on which the School received grant-in-aid.

(2) Pass such other orders as may be deemed fit and proper in the interest of justice."

2. Counter affidavit has been filed by the District

Education Officer (Opposite Party No.3). It is, inter alia,

stated that the Petitioner's claim of being appointed as

Headmaster is not correct. The requisite qualification

and experience of Headmaster of unaided

recognized/private High School is trained graduate in

Arts or Science with minimum 7 years of teaching

experience having B.Ed. qualification. Further, the

Government in the department of School and Mass

Education vide their letter dtd.12.9.2007 have

stipulated that after 1977, the Headmaster, if

appointed in any unaided recognized/private High

School should have 7 years of teaching experience after

B.Ed. qualification and before 1977, he should have

only 7 years teaching experience. The petitioner was

appointed after 1977 and did not possess the requisite

teaching experience at the time of his appointment.

Being the Senior most teacher, he was kept in-charge

of Headmaster to manage the day to day affairs of the

School. Law stipulates that the post of regular

Headmaster shall be filled up either by transfer from

common cadre or from the select list prepared by the

State Selection Board. Thus, appointment of persons

made against said post by the Managing Committee

out of their own selection cannot be treated as valid. It

is further stated that the recommendation made by the

Managing Committee for allowing the pay scale of

Headmaster to the Petitioner from the date of

completion of 7 years is not valid. The petitioner is not

entitled to the pay scale of Headmaster as per Rule 8(3)

of Odisha Education (Recruitment and Conditions of

Service of Teachers and Members of the Staff of Aided

Educational Institution) Rules, 1974 and Rule 19(1) of

the Odisha Selection Board (Education Circle)

Recruitment Rules, 1994.

A further affidavit has been filed by the District

Education officer, Kandhamal clarifying therein that as

per the settled position of law, the Headmaster-in-

charge is not the same as the Headmaster of the

School. Even when such appointment has been

approved, the appointee cannot claim to be continued

as Headmaster or held entitled to get the scale of pay

attached to the post of Headmaster. In the absence of

7 years teaching experience after training qualification,

the Petitioner cannot be said to have acquired any

right for being appointed as regular Headmaster and

therefore, the resolution passed by the Managing

Committee is invalid.

3. Heard Mr. Sidheswar Mallik, learned counsel for

the Petitioner and Mr. S.N.Patnaik, learned Addl.

Government Advocate for the State.

4. Mr. Mallik would argue that the minimum

requirement for promotion to the post of Headmaster

was 7 years teaching experience. The Managing

Committee therefore, passed resolution recommending

regular appointment of the petitioner as Headmaster

on his completion of 7 years' experience. Mr. Mallik

further submits that law is well settled that if a person

is promoted to higher post or made to officiate in that

post, he is normally entitled to salary of that post. In

this context Mr. Mallik has cited the judgments of the

Supreme Court in the case of State of Punjab and

another vs. Dharam Pal1, Secretary-cum-Chief

Engineer, Chandigarh vs. Hari Om Sharma and

others;2 and Selvaraj v. Lt. Governor of Island, Port

Blair and others;3. Mr. Mallik has also referred to

Rule 96 of the Odisha Service Code and submits that

the Petitioner having officiated in the post of

Headmaster right from the date of his appointment, is

entitled to the pay scale of regular Headmaster.

5. Per contra, Mr. S.N.Patnaik would argue that the

requisite qualification and experience of Headmaster of

an unaided recognized/private High School is trained

graduate in Arts/Science with minimum 7 years of

teaching experience having B.Ed. qualification. The

AIR 2017 SC 4438

1998 SC 2909

(1998) 4 SCC 291

Government letter dtd.12.9.2007 also stipulates that

any person appointed as Headmaster in such Schools

after 1977 should have 7 years of teaching experience

after B.Ed. qualification. The Petitioner was admittedly

appointed after 1977 and did not possess the requisite

teaching experience at that time. Being the Senior

most teacher he was only kept in charge. Mr. Patnaik,

further refers to the judgment passed by the Supreme

Court in the case of Pabitra Mohan Dash and others

v. State of Orissa and others;4 and the case of State

of Orissa and others vs. Subhranta Ku. Mohanty

and another;5 in support of his contentions.

6. The facts of the case being as narrated herein

before, need not be gone into in detail again. It would

suffice to note that the Petitioner was appointed on

14.7.1986 as Asst. Teacher. On the same day, as per

resolution passed by Managing Committee, he was

appointed as Headmaster. Obviously, this cannot be

treated as a regular appointment, but an officiating

arrangement, in which capacity the Petitioner's

(2001) 2 SCC 480

(2003) 12 SCC 53

services were approved for the purpose of admitting the

institution to grant-in-aid w.e.f. 01.6.1994. The

Managing Committee further resolved on 31.3.1997 to

approve his selection as Headmaster for the purpose of

getting the pay scale of the post from the date of his

completion of 7 years in the School.

7. It would be apposite at this stage to refer to

letter dtd.12.9.2007 of the Government in Department

of School and Mass Education addressed to the

Director, Secondary Education, Odisha. Said letter is

extracted herein below;

"I am directed to say that as per the Chapter-IX of the Regulation of the Board of Secondary Education, Orissa, Cuttack a School seeking to open Class-IX shall be required to fulfil ere certain conditions before opening Class-IX. Out of these conditions, one stipulation is that the Headmaster of the School should be trained Graduate in arts or science with minimum 7 years of teaching experience after B.Ed. training.

It has been settled in the High Court and Apex Court that after 1977 the Headmaster if appointed in any Unaided recognized/Private High Schools then he should have 7 years of teaching experience after training and before 1977 he should have only 7 years teaching experience at the time of appointment. During the meeting of the HPC, It was found that many such private Institutions seeking permission and recognition do not have Headmasters with such qualification.

You are therefore requested to make scrutiny of each application for grant of permission/recognition and submit a report as to whether they have

Headmasters with the above qualification at relevant time or not for consideration at Govt. level regarding amendment of Board's regulation if necessary.

This matter may be expedited and proposal be submitted to Govt. for necessary action."

Thus the requirement is, after 1977 any person

appointed as Headmaster in any unaided

recognized/private High Schools should have 7 years

of teaching experience after training. The Petitioner

was admittedly appointed after 1977. It is not disputed

that he did not possess the requisite teaching

experience after training. Law has been set at rest in

this regard by the Supreme Court in the case of

Pabitra Mohan Dash (Supra) wherein the following

has been observed;

"It is not disputed that with effect from 29-5-1977 Regulation 17 in the Board of Secondary Education has been brought into force which makes it obligatory for every institution to have a Headmaster who must be a Trained Graduate and must have 7 years of teaching experience as a Trained Graduate Teacher. If subsequent to 29-5-1977 any appointment has been made to the post of Headmaster contrary to the aforesaid provisions of the regulation then the said appointment would be invalid appointment and would not confer any right on the appointee.

xxx xxx xxx xxx xxx xxx xxx

A person who has been appointed as Headmaster-in- charge cannot claim any right on the basis of that appointment even if the same might have been approved by any competent educational authority. The in-charge Headmaster is not the same as the Headmaster of the school and it merely entitles a person to remain in charge and discharge the duties of

a Headmaster. In this view of the matter where the appointment itself has been to the post of Headmaster as in-charge and such appointment had been approved, obviously the said appointee cannot claim to be continued as Headmaster or to be entitled to get the scale of pay attached to the post of Headmaster."

8. Thus, in view of the undisputed facts of the case

and the position of law as settled by the Supreme

Court, this Court is left with no doubt that the

Petitioner's claim for grant of regular scale of pay

attached to the post of Headmaster has no legs to

stand. Further, on facts, the judgments relied upon by

the Petitioner are not applicable.

9. For the foregoing reasons therefore, this Court

finds no merit in the Writ Petition, which is therefore,

dismissed. There shall be no order as to cost.

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

Sashikanta Mishra, Judge