The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.960 of 2018 Umesh Chandra Pradhan …. Appellant Mr. S.N. Sharma, Advocate -versus- State of Odisha & Ors. …. Respondents Mr. S.K. Samal, AGA Mr. A. Sahoo, Advocate (Respondent No. 4) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 29.02.2024 Order No 09. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Pursuant to the order passed by this Court on 15.02.2024, further affidavit filed by Respondent No. 4 in Court be kept in record.
Legal Reasoning
of time. This Court in that case has relied upon the non-repealed provision contained in rule 5 and 8 of the 1974 Rules. In case of Itisree Ray (supra), this Court relying upon the case of Arnapurna Panda (supra), as also Rule 8(2)(a) of the 1974 Rules, now also in force has found the Managing Committee to be having the power to give adhoc appointment in terms of the said rule pending appointment of a Selection Board Candidate and has accordingly held that the teachers concerned are entitled to get the salary under the Direct Payment Scheme. This Court relying upon the judgment in case of Itsree Ray (supra) and referring to the same, in that case of Pravati Kumari Udyasingh (supra) has directed the Managing Committee to allow the applicant therein to continue on adhoc basis till her replacement by a Selection Board Candidate.” 5.1. Learned counsel for the Appellant accordingly contended that since prior approval is not a requirement in view of the decision in the case of Balaji Sahoo as cited supra, rejection of the Appellant’s claim vide the impugned order on the said ground is required to be interfered with by this Court. 6. Mr. S.K. Samal, learned Addl. Govt. Advocate while supporting the impugned order, contended that since the Appellant while working as against the post of TGT (PCM) left the School and joined as a Sikshya Sahayak for the period from 05.01.2005 to 31.08.2007, after the School became eligible to get the benefit of Grant-in-aid, the Managing Committee was not supposed to reappoint the Appellant on 01.09.2007 without seeking prior approval. However, learned Addl. Govt. Advocate does not dispute Page 4 of 6 // 5 // the law decided by this Court in the case of Balaji Sahoo as cited supra. 7. Mr. A. Sahoo, learned counsel appearing for the Respondent No. 4 on the other hand basing on the stand taken in the affidavit contended that even though the Appellant was reappointed vide order dtd.01.09.2007, but he is not coming to the School at present. 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the Appellant was initially appointed as against the post of TGT (PCM) on 09.08.1991. But Appellant left the School on his appointment as a Sikshya Sahayak. Subsequently, after the School was notified as an Aided Educational Institution vide Govt. order dtd.28.06.2007 w.e.f.01.06.2007 and Appellant was reappointed by the Managing Committee on 01.09.2007. The Tribunal placing reliance on 1994 Rules as well as the circular issued by the Director on 13.07.2011, rejected the claim on the ground that the Managing Committee after the School became eligible to receive Grant-in-aid was not competent to reappoint the Appellant on 01.09.2007. 8.1. However, in view of the decision of this Court in the case of Balaji Sahoo, the ground on which the claim of the Appellant has been rejected no more subsists. In view of the same, this Court is inclined to quash the order dtd.11.05.2018 so passed by the Tribunal in GIA case No. 732 of 2012. While quashing the same, this Court remits the matter to the Tribunal to take a fresh decision on the claim of the Appellant. Since the matter is of the year 2012, the Tribunal is directed to dispose of the matter in accordance with law as expeditiously as possible preferably within a period of six (6) months from the date of receipt of this order. Appellant is Page 5 of 6 // 6 // directed to provide a copy of this order before the Tribunal on 11th March, 2024.
Arguments
3. Heard Mr. S.N. Sharma, learned counsel appearing for the Appellant, Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for State-Respondents and Mr. A. Sahoo, learned counsel appearing for Respondent No. 4. 4. The present appeal has been filed challenging order dtd.11.05.2018 so passed by the State Education Tribunal (in short “Tribunal”) in GIA Case No. 732 of 2012. Vide the said Judgment claim of the Appellant for approval of his services as against the post of TGT (PCM) was rejected on the ground that Appellant was reappointed by the Managing Committee of the School on 01.09.2007 after the school was taken over by the Govt. without seeking prior approval of the Inspector as well as Director in terms // 2 // of the provisions contained under Odisha Selection Board (Education Circle Recruitment) Rules, 1994 (in short Rules) as well as the circular issued by the Director on 13.07.2011. 5. Learned counsel for the Appellant contended that the ground on which the claim of the Appellant was rejected by the Tribunal vide its order dtd.11.05.2018, is no more sustainable in the eye of law in view of the decision rendered by this Court in the case of Balaji Sahoo Vs. State of Odisha & Ors. (2018 (II) OLR 761). This Court in Para 10 of the said Judgment has held as follows:- “10. In view of the above rival submissions, the first consideration arises as to whether the Tribunal has rightly refused to issue a direction to approve the service of the petitioner in the said Institution as prayed for and the finding on that score if would receive affirmation or rejection. Then only the next question regarding the tenability of the order of the learned Tribunal as regards payment of salary and if so which of the opposite party is to shoulder the said burden would arise for being addressed and answered. Admittedly the institution in question has been notified as an Aided Institution before the date of appointment of the petitioner and his joining on 01.01.2007 pursuant to the order dated 27.12.2006 of the Managing Committee of the Institution (opposite party No. 5). Sub-Rule (5), (6), (7), (8) and (9) have been repealed with effect from 01.10.1992 and admittedly at the time of appointment of this petitioner, the said Rules as those stood earlier were not in force. The joining of the petitioner and his continuance in that post for all these period is not in dispute. In case of Pravati Kumari Udyasingh (supra), the appointment was made on a stopgap arrangement until Page 2 of 6 // 3 // sponsoring of a Selection Board Candidate. This having been taken note of, the Tribunal had said that the anointment of the present petitioner here in the case has not been made as a stopgap arrangement due to non-availability of a sponsored Selection Board Candidate and rather has been made on a regular basis and next it has taken note of the fact that the opposite party No. 4 has not given any requisition to the Selection Board showing the necessity of filling the vacancy against which the petitioner has been appointed. In that way said case of Pravati Kumari Udyasingh (supra) has been distinguished. Placing on record the case of Majhipada M.E. School vs. State of Orissa and others 1992 (1) OLR 447 the Tribunal has stated that the Assistant Teacher therein was appointed temporarily and continued as such till he was appointed as the Headmaster of the School, first on adhoc basis and then permanently by order dated 04.04 1987 and the School received the Grant-in-Aid on 01.08. 1987 So in that case, the claimant had been appointed prior to the School being notified as an Aided Institution and therefore, the Managing Committee having terminated the service of the claimant, the Tribunal set it at naught as it was not with the prior approval of the Competent Authority which was upheld. Therefore, it has been said by the Tribunal that the said case does not come to the aid of the present petitioner. The Tribunal in the instant case has found the petitioner to have been appointed after the Institution was notified as an Aided Institution and without obtaining any prior approval and without seeking of the Selection Board as required under the Rules and for placement of a candidate Therefore, it has found the case of the petitioner to be squarely covered by the ratio decided in case of Nabin Kumar Beura (supra). In view of the repeal of rule 5(8) and (9) with effect from 01. 10. 1992, here the petitioner’s appointment cannot be said to be per se illegal. In case of Nabin Page 3 of 6 // 4 // Kumar Beura, (supra) the appointment was on 19.07.1992 which is prior to the repeal of rule 4 to 7 including rule 5, 8 and 9 of the 1974 Rules which were holding the field then at the relevant point
Decision
9. The appeal is disposed of accordingly. Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Mar-2024 18:20:36 Page 6 of 6