The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.122 of 2007 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Manoranjan Sahoo …. Petitioner State of Orissa and Ors. …. Opp. Parties -versus- Advocates appeared in the case: For Petitioner : Mr. Manoj Kumar Mohanty, Adv. -versus- For Opp. Parties : Mr. D. Mohapatra, SC (for S & ME Deptt.) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-10.02.2023 DATE OF JUDGMENT:-15.03.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Writ Petition has sought for a direction to approve his service from the date of his appointment and release his salary against the post of Peon, which is lying vacant in the school from the date of his appointment and for a further direction to give him all consequential service and financial benefit accrued out of the same. pg. 1 I. FACTUAL MATRIX OF THE CASE: 2. Dayananda High School at village Paburia, in the district of Kandhamal was an aided educational Institution as defined under Section 3(b) of the Orissa Education Act, 1969. When the school was an aided educational institution, as per the yardstick prescribed by the Department vide order dated 08.07.1981, the post of 'Daftary' which was an additional post of Peon commonly known as fourth Peon was lying vacant in the school as the roll strength of the school became more than 100 in the year 1987-88. Accordingly, the fourth Peon post became admissible in the school. The Petitioner made an application for the said post pursuant to the advertisement published by the Managing Committee of the School vide Notice No.181 dated 20.04.1988. As many as seven candidates along with the Petitioner applied for the post. The selection test was conducted on 17.05.1988 by the Managing Committee of the school and in the said selection test the Petitioner was selected. The Managing Committee of the school which was the competent authority to give appointment to the post of non-teaching staff of the school, resolved to give appointment to the Petitioner as 'Daftary' (Fourth Peon) of the school. Accordingly, the Secretary of the Managing Committee vide his Office order No.182 dated 30.07.1989 appointed the Petitioner as 'Fourth Peon' of the said school against the pg. 2 existing vacancy. Pursuant to the said appointment, the Petitioner joined in service on 12.08.1989 as Fourth Peon of the school. 3. After his joining in the school, the Secretary of the School vide letter No.187 dated 13.08.1989 sought for approval of the service of the Petitioner from the Inspector of Schools and as no step was taken by the Inspector of Schools, the Secretary of the School requested vide letter No.189 dated 27.04.1990 and letter No.191 dated 25.08.1991 to give approval to the service of the Petitioner. However, the Inspector of Schools did not take any steps for approval of the service of the Petitioner. 4. As the service of the Petitioner was not approved, the Petitioner along with third Peon of the school filed O.J.C. No.1066 of 1992 in this Court and this Court vide order dated 11.02.1992 directed the Inspector of Schools to pass appropriate orders on the recommendation of the Secretary of the school regarding approval of the service of the Petitioner as well as the service of the third Peon. 5. After receiving the order of this Court, the Inspector of Schools called for relevant records from the Headmaster of the school for approval of services of the Petitioner as fourth Peon of the school vide letter No.1739 dated 17.03.1992. Pursuant to the said letter, the Headmaster of School produced all the relevant records before the Inspector of pg. 3 Schools on 10.04.1992. On 06.07.1992, the Inspector of Schools asked for more particulars with regard to the appointment of the Petitioner as fourth Peon of the School. The Headmaster of the School produced all the relevant records with regard to the appointment of the Petitioner on 09.07.1992. However, the Inspector of Schools did not approve the service of the Petitioner pursuant to the direction of this Court. On the other hand, the Inspector of Schools approved the service of the third Peon of the school. Therefore, the Petitioner filed O.J.C. No.7535 of 1993 and the matter was admitted for adjudication. 6. The school in question was taken over by the Government as a Government school on 16.12.1994 with effect from 07.06.1994. However, the proposal for approval of service of the Petitioner was recommended by the Managing Committee to the Educational Authority much prior to taken over of the school. However, the said proposal was pending consideration before the authority and no decision was taken even on the date of taking over of the school. Even after the taking over of the school, the Petitioner used to discharge his duty sincerely and efficiently. Further, the Headmaster of the School vide his letter No.117 dated 18.08.1996 intimated the Inspector of Schools that the senior most Peon of the school namely Prafulla Kumar Nayak was promoted to the post of pg. 4 Daftary and in his place the Petitioner was adjusted as Peon of the school. In spite of the same, the Inspector of Schools did not take any step for approval of the service of the Petitioner. 7. After taking over the school, the Writ Petition bearing O.J.C. No.7535 of 1993 was dropped in view of the decision
Legal Reasoning
by this Court in OJC No.13474 of 1999 directing the Inspector of Schools, Balasore to release the salary of Sri Rajendra Kumar Das, Fourth peon of Dolagobinda High School, Dhobagadia, in the district of Balasore on the same ground based on which the salary of the Petitioner was stopped i.e. the post of Fourth Peon does not exist in the aided high schools. The Supreme Court vide order dated 29.08.2003 was pleased to held as follows: “It is to be noted that 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 a school 1 2003 (1) OLR 438 pg. 5 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 concerned authorities. 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 the writ petitioners were appointed by the Managing Committee', may be under a misreading of the relevant government orders. We, therefore, while allowing these appeals direct that the management of the concerned institution shall move the concerned authorities for approval to the promotional appointment of a class IV employee, as "Daftary". Simultaneously, also recommend for appointment to the 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 of appointments were made. Even if there has been refusal earlier, the matter shall be reconsidered in the light of what has been stated above." can it 8. After the above order passed by the Supreme Court on 29.08.2003, the Government of Orissa, Department of School and Mass Education vide G.O. No.IX.SME (HC)164/99- 24268/SME dated 06.10.2003 directed the Director of Secondary Education, Orissa and all the Inspector of Schools pg. 6 of the State to issue suitable instructions to the Managing Committee of concerned Non-Government Aided High Schools and the Headmasters of taken over High Schools, where the fourth Peons have been appointed to resolve the issue as per the direction of the Supreme Court. The Inspector of Schools shall verify the records and roll strength of the concerned schools with relevant particulars and furnish the proposal to the Director of Secondary Education for further scrutiny and onward submission of a detailed proposal with relevant records circle wise to the Government for obtaining concurrence of Finance Department. 9. Though the relevant records have been submitted as per the direction of the Inspector of Schools again and again, the Opposite Parties have not taken any steps till today for approval of the service of the Petitioner and release of his salary though the existing post of Peon in the school is lying vacant. Further, the Inspector of Schools is quite competent to give promotion to the senior most Peon to the post of Daftary and in the consequential vacancy, the Petitioner should be absorbed. 10. As the Government of Orissa did not comply with the direction of the Supreme Court passed in Rajendra Kumar Das’s case, Rajendra Kumar Das filed Contempt Petition (C) No.32 of 2000 in the Supreme Court. In the said contempt pg. 7 petition, the Commissioner-cum-Secretary, School and Mass Education, Orissa filed an affidavit on 21.8.2006 stating that the Government has approved the appointment of Rajendra Kumar Das in Dolagobinda High School in Class IV post which will fall vacant as a result of promotion of senior most Class IV post to the promotional post of 'Daftary vide order dated 14.8.2006 and produced the approval order before the Supreme Court bearing No.16463 dated 14.08.2006. In the said order, the Government has been pleased to approve the promotional appointment of the senior most Class IV employees of Dolagobinda High School as Daftary and adjustment of Sri Rajendra Kumar Das in the consequential vacancy of Class IV post in the said school. II. PETITIONER’S SUBMISSIONS: 11. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions: 12. The action of the Opposite Parties in not approving the service of the Petitioner as a peon and not releasing the salary of the Petitioner against the post of peon of Dayananda High School is quite illegal, arbitrary and contrary to law. 13. As per the yardstick dated 08.07.1981 the post of 'Daftary' was an additional post of Peon and the said post is admissible to the school in which the roll strength of school exceeds 100. On 27.03.1992, the said additional Peon ‘Daftary’ was admissible pg. 8 to the school when roll strength exceeds 500. Again the Government of Orissa vide G.O. No.36118/SME dated 13.11.1996 made the post of 'Daftary' as a promotional post. Before the 'Daftary' became a promotional post, the service of the Petitioner was recommended by the Headmaster of the School for the post of Peon of the school by giving promotion to the senior most Peon of the school namely Prafulla Kumar Nayak to the post of Daftary. However, the salary of the Petitioner has not been released even after the direction of this Court. Further, the Headmaster of the School requested the Inspector of Schools to release the salary of the Petitioner against the consequential vacancy of Prafulla Kumar Nayak as he has been promoted to the post of Daftary. Even after the direction of the Supreme Court in Rajendra Kumar Das's case, the Opposite Parties have not taken any steps for release of the salary of the Petitioner which is quite illegal, arbitrary and contrary to law. 14. The Petitioner stands on the same footing of Rajendra Kumar Das and he has not got the salary even after direction of this Court. After Rajendra Kumar Das's case, there is no legal impediment at all to release the salary of the Petitioner as there is a vacant post of Peon in the school and the Petitioner is working against the said post. As the Petitioner is a Government servant and has been continuing against a pg. 9 sanctioned post, the Opposite Parties should release his salary. 15. The Petitioner being a Government servant and without taking the recourse as per the provisions of the C.C.A. Rules, the salary of the Petitioner cannot be stopped. It is submitted that without any rhyme and reason and without any proceeding and any punishment imposed on him under the C.C.A. Rules, the salary of the Petitioner cannot be withheld and the same is quite illegal and contrary to law. III. OPPOSITE PARTIES’ SUBMISSIONS: 16. Per contra, learned counsel for the Opposite Parties intently made the following submissions: 17. As per the yardstick, if the students strength justifies the situation and initiation for engagement of an additional Peon, the senior most Peon will be promoted to the post of Daftary and against the consequential vacancy, an additional Peon can be adjusted with prior permission of the authorities of the Government to effect such promotion and adjustment of an additional Peon. 18. There is no concept of appointment of any fourth Peon. It is only as per the decision of the Supreme Court in the case of Rajendra Prasad Das v. State of Odisha and others2, the aforesaid principle has been laid down to meet the 22003 (10) SCC 411 pg. 10 contingency. The post of Daftary is a promotional post, therefore, the managing committee has no authority to conduct the open interview for the post of Daftary. As such the so called action by the then Managing Committee was illegal and contrary to the settled principles of law as laid down by the Supreme Court in the above judgment. 19. The Petitioner was not a bonafide employee of the school and the so called appointment of the Petitioner has not been made adhering to due procedure. Furthermore, no permission was accorded/ taken from the Government to give promotion to the senior most Peon to the post of Daftary, more so no sanction was obtained from the Government in this regard. Furthermore, no promotion was also accorded for adjustment of the Petitioner as fourth Peon in the said school. As such there was no appointment made by the then Managing Committee by obtaining necessary sanction in this regard from the appropriate authority. 20. The managing committee has no jurisdiction to conduct interview for the post of Daftary as the post of Daftary is a promotional post. If the yardstick suggests for an additional Peon, prior permission of the Government is required to take steps for promotion of the senior most Peon to the post of Daftary and to pass appropriate resolution to that effect and against the consequential vacancy, the Managing Committee pg. 11 has to pass a resolution for giving adjustment of the additional Peon strictly adhering the procedure prescribed for appointment of such additional Peon. The claim of the Petitioner regarding promotion of Sri Prafulla Kumar Nayak to the post of Daftary is false, baseless and an attempt made by the Petitioner to mislead this Court. 21. The Petitioner prior to filing of Original Application has approached this Court in OJC No.7535 of 1993, wherein the Petitioner sought for a direction to quash the Annexure-6 therein which relates to an order passed by the Inspector of Schools, pursuant to the direction issued by this Court in OJC No.1066 of 1992 wherein the then Inspector of Schools, Phulbani Circle, Phulbani through examination of the material documents including the resolution book of the then Managing Committee, other connected records including the Attendance Register and other connected documents arrived at a conclusion that there was manipulation of records tampering of documents and upon meticulous examination of all material available on record, the then Inspector of Schools, Phublani Circle, Phulbani refused to approve the so called appointment of the Petitioner as fourth Peon. The said Writ
Arguments
rendered by this Court in the case of Smt. Rama Panigrahi – vrs.- State of Orissa and Ors.1. In the meanwhile, the State Government filed SLP (C) No.7032 of2000 which was subsequently, numbered as Civil Appeal No.6844 of 2003 (State of Orissa and others v. Rajendra Kumar Das) in the Supreme Court challenging the order dated 23.08.2000 passed
Decision
Petition was disposed of on 08.11.2006 by a Division Bench of this Court wherein this Court was not inclined to entertain the Writ Petition and directed the Petitioner to redress his pg. 12 grievance under Section 24-B of the Odisha Education Act, 1969. 22. The Petitioner has deliberately, intentionally and mischievously suppressed these material facts before this Court and the Petitioner has also never disclosed in his petition about the final outcome in the GIA case. In absence of such disclosure, it can be safely said that order passed by the then Inspector of Schools on 07.11.1992 to the counter affidavit remain unassailed and reached its finality. In the given situation, the Petitioner cannot make a prayer for approval of his post. Such claim is also barred by res judicata. 23. The Petitioner never worked in the school and whatever record information produced by the Petitioner is a clear cut indication of manipulation of records made with the knowledge of the Managing Committee and the then Headmaster of the school. On the basis of such fraud, manipulation, forgery, the Petitioner has raised the claim. As such the Petitioner has not approached this Court with clean hands. Rather, he has deliberately and intentionally suppressed the material facts. Furthermore, the Petitioner was never an employee of Dayananda High School and it is a proven facts based on records upon verification of the staff Attendance Register and other connected records. It was categorically held by the Inspector of Schools that the pg. 13 Petitioner had never worked in the said school at any point of time. 24. The so called appointment made by the Managing Committee was quite irregular, illegal and contrary to law and smacks malafide. In this connection, it is pertinent to mention here that Sri Prafulla Kumar Nayak was never given promotion to the post of Daftary, so the claim of the Petitioner with regard to his so called appointment against the consequential vacancy post upon promotion of Sri Prafulla Kumar Nayak is far from truth and a deliberate attempt made by the Petitioner to mislead this Court. On the basis of such pleading, it was submitted in the counter affidavit for dismissal of the Writ Petition, as the grievance of the Petitioner merits no consideration. 25. Pursuant to filing of the counter affidavit, the Petitioner has filed a reply in the form of rejoinder to the said counter affidavit. In the said rejoinder he has never refuted the specific allegation and averments made in the counter affidavit with regard to fraud, forgery and manipulation committed in the record in relation to his appointment. As such the assertions made in the counter affidavit filed by the then Inspector of Schools, Phulbani remain uncontroverted. pg. 14 IV. ISSUES FOR CONSIDERATION: 26. It is well settled principle of law as has been laid down by the Supreme Court that regularisation is to be granted is a matter to be decided by the employer keeping in view the number of factors like the nature of work, number of post lying vacant, the financial condition of the employer, the additional financial burden cause, the suitability of the workmen for the job, the manner and reason for which the initial appointment were made etc. The said decision will depend upon the facts of each year. This well settled principle of law has been laid down by the Supreme Court in the decision rendered in Managing Director, Ajmer Vidhyut Vitran Nigam Ltd. Ajme and another Versus Chiggan Lal and others3. 27. Regularization of contractual services has been a persistent matter of litigation for several decades now. In this regard, the Apex Court has clarified that the same has to be based on the necessity of the said post and the duration of the service of the employee. Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka & Ors vs. Umadevi & Ors.4 has laid down the following ratio:- "(I) The questions to be asked before regularization are:- (a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state 3Civil Appeal No.1875/2022 (arising out of SLP (C) No. 19181 of 2017) 42006(4) SCC 1 pg. 15 (iv) are may go haywire), (ii) is there a vacancy, (iii) are the the persons qualified persons and appointments through regular recruitment process (b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter. (II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc is violated. (III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees temporary who employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization. (IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb form a separate class. Such through pg. 16 regular through or regularize persons appointed to such posts without following the regular recruitment process. (V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment appointment procedure. (VI) If there are sanctioned posts with persons were vacancies, qualified appointed without a recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization. (VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution". regular and 28. In the case of Roshan Lal Tandon v. Union of India5, the Supreme Court has observed: “It is 'true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a government servant is more one of status than of contract. The hall-mark of status is the 51968 SCR (1) 185 pg. 17 attachment to a legal relationship of rights and duties imposed by the public 'law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Art. 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Art. 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are 'fixed by the law and in the enforcement of these duties society has an interest.” 29. Firstly, while deciding the issue of regularisation, it is pertinent to understand that the appointing authority has followed the due process of law while appointing the person concerned. In the present case, the post of Daftary is a promotional post, therefore, the Managing Committee has no authority to conduct the open interview for the post of Daftary. As such the so-called action by the then Managing Committee was illegal and contrary to the settled principle of law as laid down by the Supreme Court in the above judgment. The Petitioner was not a bonafide employee of the school and the so called appointment of the Petitioner has not pg. 18 been made adhering to due procedure. Furthermore, no permission was accorded/ taken from the Government to give promotion to the senior most Peon to the post of Daftary. More so, no sanction was obtained from the Government in this regard. Furthermore, no promotion was also accorded for adjustment of the Petitioner as 4th Peon in the said school. As such there was no appointment made by the then Managing Committee by obtaining necessary sanction in this regard from the appropriate authority. 30. Therefore, the Managing committee has no jurisdiction to conduct interview for the post of Daftary as the post of Daftary is a promotional post. If the yardstick prescribes for an additional Peon prior permission to the Government is required to take steps for promotion of the senior most Peon to the post of Daftary and to pass appropriate resolution to that effect and against the consequential vacancy, the Managing Committee has to pass a resolution for giving adjustment of the additional Peon strictly adhering the procedure prescribed for appointment of such additional Peon. 31. Secondly, it is pertinent to clarify that the service of the Petitioner was not approved by the Inspector of Schools. The then Inspector of Schools, Phulbani Circle, Phulbani upon thorough examination of the material documents including pg. 19 the resolution book of the then Managing Committee, other connected records including the Attendance Register and other connected documents arrived at a conclusion that there was manipulation of records tampering of documents and upon meticulous examination of all material available on record, the then Inspector of Schools, Phublani Circle, Phulbani refused to approve the so-called appointment of the Petitioner as 4th Peon. 32. The Petitioner has deliberately, intentionally and mischievously suppressed those material facts before this Court and the Petitioner has also never disclosed in his petition about the final outcome of the GIA case. In absence of such disclosure, it can be safely said that order passed by the then Inspector of Schools on 07.11.1992 remain unassailed and reached its finality. 33. In light of the aforesaid discussion and having regard to the present position of law, this Court is of the opinion that the Writ Petitioner cannot be granted any relief by way of a Writ and the present Writ Petition is liable to be dismissed. 34. The Writ Petition is, accordingly, dismissed. Orissa High Court, Cuttack, Dated the 15th March, 2023/ B. Jhankar ( Dr. S.K. Panigrahi ) Judge pg. 20