The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.2317 of 2003 Purusottam Parida …. Petitioner Mr. K.K. Swain, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. S. K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. 16. 1. This matter
Decision
ORDER 06.12.2023 taken up is through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. The Present Writ Petition has been filed inter alia challenging the order dtd.02.04.2002 so passed by the Government in the Department of School & Mass Education under Annexure-10. Vide the said order, the prayer of the Petitioner for approval of his services as against the post of full time Music Teacher in S.K. DAV Girls High School, Rourkela has been rejected. 4. Learned counsel for the Petitioner contended that the Petitioner was initially engaged as a part time Music Teacher by the Managing Committee of D.A.V. Girls High School, Rourkela, where he joined on 17.07.1979. Subsequently, Petitioner was regularized as a Music Teacher in that School by the Managing // 2 // Committee of the School. After such regularization of the services of the Petitioner as a full time Music Teacher, though proposal was submitted by the School to the then Inspector of School, Sundargarh on 07.12.1984 under Annexure-4 for regularization of the services of the Petitioner as a full time Music Teacher, but that was never acted upon. Petitioner challenging the inaction to the Opposite Parties in not regularizing the services of the petitioner approached this Court in OJC No.2467 of 1989. This Court while disposing the matter vide order dtd.27.08.1992 though did not issue any position direction on the Opposite Parties to regularize the services of the Petitioner but observed as follows in Para-5:- “5. The next question is whether we can give direction to pay petitioner in the scale of pay of Rs.255-390/- by treating him as a full-time music teacher. As to this, Shri Ray has drawn our attention to a communication from the Under Secretary of the aforesaid Department to the Director of Secondary bearing number 4464/EXS dated 25.2.1989 in which the Government wanted the Director to apprise it about the total number of part-time music teachers who were in position on that day and the total finance required. This indicates that the Government is in contemplation of the regularizing the services of the part- time music teachers, which is the subject of the above letter. As music is said to be a part of curriculum of the school and as plays important part in the life of a man, let appropriate decision be taken by the Government about the above as early as possible preferably within three months from the date of receipt of this order. While so deciding, the pay to be made available, would also be considered. We may say here that in the aforesaid communication, need have been felt for enhancing the consolidated pay from Rs.225/- to Rs.720/-” 4.1. It is contended that the order passed by this Court on 27.08.1992 when was not implemented, Petitioner Page 2 of 6 // 3 // filed original Criminal Misc. Case No.736 of 1998. After disposal of the said contempt petition, the impugned order was passed by the Government, wherein the prayer of the Petitioner for his regularization as against the post of Music Teacher was rejected on the ground that there was no post of Music Teacher as per the 1981 yardstick and no such post of full time Music Teacher was ever created the School in question. 4.2. Learned counsel for the Petitioner contended that Petitioner was allowed to get the benefit of consolidated wages as a Part time Music Teacher and necessary fund was also provided by the Government for such payment in favour of the Petitioner, while he was continuing as a part time Music Teacher in the School. Petitioner after being allowed to continue as a full time Music Teacher by the Managing Committee of the School, his services should have been regularized as requested by the School under Annexure-4. 4.3. Learned counsel for the Petitioner further contended that similar benefit was extended in favour of similarly situated part time Music Teachers in terms of the order passed by the Tribunal on 25.04.1995 in O.A No.789 of 1994 vide Annexure-13. Since similar benefit was extended by the Tribunal in its order under Annexure-13 in favour of part time Music Teacher, rejection of the petitioner’s claim for approval of his services as against the post of Full Time Music Teacher vide the impugned order is not sustainable in the eye of law. Page 3 of 6 // 4 // 5. Learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. Though learned AGA does not dispute the payment of consolidated wages in favour of the Petitioner during the period he continued as part time Music Teacher but it is contended that the post of full time Music Teacher, was never created in the School and the Managing Committee on its own appointed the Petitioner as a full time Music Teacher and request was made vide Annexure-4 to regularize the services of the Petitioner as against the said post. Since no post of full time Music Teacher was ever created with due sanction of the Government, basing on the order passed by this Court in OJC No.2467 of 1989, the prayer of the Petitioner was rejected vide Annexure-10. With regard to extension of similar benefit in terms of the order passed by the Tribunal, learned AGA contended that the order passed by the Tribunal was challenged before the Hon’ble Apex Court in SLP No.8495/1996. Though Hon’ble Apex Court did not interfere with the order passed by the Tribunal, but clearly held in its order dtd.07.10.1996 that the order of the Tribunal shall not be treated as precedent. 5.1. It is accordingly contended that since no post of full time Music Teacher was ever created with due sanction of the Government and the Petitioner continued as against the said post because of the wrong committed by the Managing Committee, Petitioner’s claim was rightly rejected vide Annexure-10. Secondly, it is contented that Page 4 of 6 // 5 // in view of the order passed by the Hon’ble Apex Court on 07.10.1996 the order passed by the learned Tribunal in O.A No.789 of 1994 cannot be treated as precedent and no direction can be issued to extend similar benefit in favour of the Petitioner. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner was engaged as a part time Music Teacher by the Managing Committee of S.K. D.A.V Girls High School, Rourkela. Though from certain communication it is found that the Petitioner as a part time Music Teacher was extended with the benefit of consolidated wages by the Government, but no such document has been enclosed to the writ petition showing that the post of full time Music Teacher was created with due sanction of the Government in respect of School in question. 6.1. Since no such document is available with the case record showing sanction and creation of the post of full time Music Teacher in the School in question, this Court finds no illegality or irregularity with the impugned order so passed by the Government under Annexure-10. With regard to the benefit extended in favour of similarly situated persons in terms of the order passed by the Tribunal in O.A. No.789 of 1994, this Court is also unable to extend similar benefit, in view of the order passed by the Hon’ble Apex Court where it has been indicated that Page 5 of 6 // 6 // the order of the Tribunal shall not be treated as precedent. 7. In any view of the matter, this Court finds no merit in the prayer as made in the writ petition and dismiss the same. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Dec-2023 12:24:26 Page 6 of 6