The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12350 of 2014 Kabi Pradhan …. -versus- Petitioner State of Odisha and others …. Opposite Parties Advocates appeared in the case For Petitioner Ms. Jacqueline Jena, Advocate For Opposite Parties
Legal Reasoning
Mr. M. K. Khuntia, Additional Government Advocate CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN JUDGMENT 01.05.2024 Chakradhari Sharan Singh, CJ. We have heard learned counsel for the parties. 2. The petitioner, in the present writ petition filed under Article 226 of the Constitution of India, has put to challenge a common order dated 27.01.2012 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack (‘the Tribunal’ in short), whereby his original applications i.e. O.A. No.1759(C) of 2000 and O.A. No.3410(C) of
Decision
2002 have been disposed of. 3. Certain facts, not in dispute, deserve to be taken note of at the outset. The petitioner had joined as an Assistant Teacher in Jandol High School in the district of Sambalpur on 30.10.1990. The said W.P.(C) No.12350 of 2014 Page 1 of 7 school was taken over by the State Government with effect from 07.06.1994 by way of a Resolution dated 16.12.1994. Later, on 29.04.1995, the Government is said to have approved a post of Additional Section Teacher in the said school. The petitioner’s appointment in the said school was approved, with the issuance of an office order No.8506 dated 12.06.1998 by the Inspector of Schools, Sambalpur Circle, Sambalpur. It was specifically stipulated in the said office order dated 12.06.1998 that the persons, whose services were being approved, must acquire B.Ed training within two years from the issuance of the said office order, failing which the approval would stand cancelled automatically. Acting upon the said office order dated 12.06.1998, the petitioner functioned as an Additional Section Teacher. The petitioner approached the Tribunal by making an application registered as O.A. No.1759(C) of 2000 seeking a relief to exempt him from the requirement of passing B.Ed examination within two years and to allow him one more year to pass the said examination. Later, by an order dated 09.03.2001, the services of the petitioner was directed to be terminated pending final decision in O.A. No.1759(C) of 2000 before the Tribunal. Questioning the legality of the said order dated 09.03.2001, the petitioner filed another original application before the Tribunal giving rise to O.A. No.3410(C) of 2002. The said two original applications have been decided by the Tribunal by the common order, which is impugned in the present proceeding. 4. Learned counsel appearing on behalf of the petitioner, assailing the impugned common order has firstly submitted that when the petitioner was appointed on 30.10.1990 before taking over the W.P.(C) No.12350 of 2014 Page 2 of 7 school, there was no requirement of B.Ed qualification for appointment as an Assistant Teacher. She secondly contends that the petitioner’s continuance as Additional Section Teacher could not be said to be invalid in the absence of B.Ed qualification and that the absence of B.Ed qualification could have the only consequence that the petitioner would not be entitled to scale of pay admissible to a trained teacher. She has placed reliance on a co-ordinate Bench decision of this Court in case of Bibekananda Das v. State of Orissa and others (passed in Misc. Case No.7202 of 2000 arising out of OJC No.1012 of 1996) reported in 2002 (I) OLR 243 with a special reference to paragraph 5 therein, which reads thus: “5. On consideration of the submission of the counsel for parties and on perusal of the cause filed by the opposite parties to this application, we are of the opinion that it is a glaring example of the Executive arrogating to itself the power of review over a judicial decision. All the aforesaid grounds mentioned in the impugned order were raised by the opposite parties in the writ petition of the applicant (O.J.C. No. 1012 of 1996) to oppose his claim. This Court considered them and overruled the S&ME. The applicant's writ petition was allowed by recording mainly the following findings : the relevant time, an untrained (i) During (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 applicant being a pre 1993 appointee, his appointment cannot be disapproved merely because he does not possess the training qualification (B. Ed.). W.P.(C) No.12350 of 2014 Page 3 of 7 (ii) The Government instructions contained in letter No. 1074/EYS. dated 5.1.1991 at Annexure-C/3 cannot be a bar against the applicant 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 applicant's name) against additional, section in Pipili High School, Pipili. As already indicated, the office order No. 1657 dated 8.2.1996 passed by the Inspector of Schools disapproving the applicant's appointment was quashed and he was directed to approve his appointment with effect from 7.6.1994. In obedience to the direction, the Inspector of Schools passed order approving the applicant's appointment.” 5. She secondly submits that since the petitioner was not given an opportunity to pursue the teacher’s training course while in service, he could not obtain B.Ed qualification. At the first opportunity available to the petitioner, he had applied in the year 2000 and later, the appropriate authority had sponsored the petitioner’s candidature to do his B.Ed course. She accordingly contends that the petitioner could not be blamed for not acquiring B.Ed qualification within two years from the date his appointment was approved. 6. Mr. M. K. Khuntia, learned Additional Government Advocate appearing on behalf of the Opposite Parties-State of Odisha has submitted that the approval of the petitioner’s appointment against the post of Additional Section Teacher was conditional, subject to him acquiring B.Ed qualification within two years of issuance of the office order. He has submitted that once the petitioner failed to acquire B.Ed qualification within the stipulated period, he cannot question the order W.P.(C) No.12350 of 2014 Page 4 of 7 of termination. He has further argued that there is no material to suggest that the petitioner had taken any step for acquiring B.Ed qualification before the year 2000 and, therefore, the petitioner himself is responsible for not acquiring B.Ed qualification within the stipulated time. He has placed reliance on a Division Bench decision of this Court in case of Manamohan Tripathy v. State of Orissa and others reported in 1999 (II) OLR 185 to strengthen his argument. 7. After having heard learned counsel for the petitioner and learned Additional Government Advocate for the State of Odisha- opposite parties, and having perused the pleadings and other materials on record, we are satisfied that the approval of petitioner’s appointment as Additional Section Teacher by the office order dated 12.06.1998 was conditional, subject to the petitioner acquiring B.Ed qualification within two years. It was clearly mentioned in the office order that in case the petitioner failed to acquire the said qualification, the order of approval shall stand automatically cancelled. The petitioner has not been able to show whether he had made any effort to pursue B.Ed course by seeking permission from the competent authority so as to fulfill the condition of approval, before the year 2000. Learned counsel for the petitioner has attempted to convince this Court that the very fact that the petitioner’s candidature was sponsored for pursuing B.Ed course in State Council of Educational Research and Training (‘SCERT’ in short) suggests that the petitioner had made efforts and because of the failure on the part of the opposite parties to sponsor his candidature, he could not pursue B.Ed course. The said submission does not convince us for the reason that neither there is any material on record nor any pleading to the effect that the petitioner had W.P.(C) No.12350 of 2014 Page 5 of 7 taken steps for pursuing B.Ed course within reasonable period after approval of his appointment on 12.06.1998. 8. Further, decision in the case of Bibekananda Das (supra), relied upon by learned counsel for the petitioner, has been considered by the Division Bench of this Court in case of Manamohan Tripathy (supra). wherein it has been held as under: - “10. xxx. The decision in Bibekananda Das's case cannot be said to have laid down any proposition that the management of the School was free to appoint untrained persons at their will without making any effort to get trained persons. According to us, after new pattern was introduced with effect from July 1, 1981, untrained persons could be appointed against trained post only under unavoidable such appointment.” circumstances justifying 8.1. Further, in the case of Manamohan Tripathy (supra), the Division Bench held in paragraph 12 as under: “12. Besides, the School was an un-aided private School till May 31,1994. Neither the Recruitment Rules of 1974 nor the Subordinate Service Rules of 1972 were directly applicable to the School. The petitioner was appointed on March 23, 1991 long after the standard pattern of 1981 was introduced. The notification dated July 8, 1981 introducing new pattern of standard staff was applicable to all non-Govt. Secondary Schools, aided or un-aided. Recruitment Rules, 1974 were applicable only to the teachers and members of staff of aided educational institutions. It further appears from the letter of the State Government dated July 11, 1995 (Annexure-A/4) that it was expressly made clear that only the teaching staff appointed in accordance with the recruitment procedures and having requisite qualifications would be approved for the purpose of giving grant-in-aid. The Government W.P.(C) No.12350 of 2014 Page 6 of 7 cannot be compelled to pay salary to a person who did not have the requisite qualification at the time of his appointment of even at the time of consideration for approval. The decision in OJC No. 1024 of 1990 relied on by Mr. Swain cannot be applicable to the facts of the present case. In that case the writ petitioner was appointed on September 5, 1980 i.e. before introduction standard pattern. The writ petitioner's of new appointment was also approved there on the condition that the writ petitioner would have to get herself trained within a period of two years. Said approval was cancelled subsequently before expiry of the two years period granted for securing training. In the said factual context, the writ application was allowed. The said decision cannot be of any help to the writ petitioner in the present case.” 9. As was the situation in the case of Manamohan Tripathy (supra), the petitioner was given an opportunity to obtain B.Ed qualification while approving his appointment by the order dated 12.06.1998. 10. In such view of the matter, we do not find any legal infirmity in the impugned common order passed by the Tribunal. This writ petition stands dismissed accordingly being devoid of merit. Chief Justice (Chakradhari Sharan Singh) (M. S. Raman) Judge M. Panda Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-May-2024 13:09:29 W.P.(C) No.12350 of 2014 Page 7 of 7