The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.891 of 2018 Baikuntha Nath Ranbir …. Petitioner Mr. S.B. Jena, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. R.N. Mishra, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.09.2023 Order No 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S.B. Jena, learned counsel for the Petitioner and Mr. R.N. Mishra, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition challenging the order dtd.21.10.2017 so passed by the Govt.-Opp. Party No. 1 under Annexure-8. Vide the said order the claim of the Petitioner for his absorption as a Hindi Teacher in K.P.A.N. School of Education, Bankoi in the district of Khurda was rejected. 3.1. It is the contention of the learned counsel for the Petitioner that the Petitioner was appointed as a Hindi Teacher in K.P.A.N. School of Education, Bankoi, Khurda vide order dtd.24.08.1994 under Annexure-1. By the time the Petitioner was so appointed there was no prescribed yardstick and the Managing Committee taking into // 2 // account the requirement of the School appointed him as a Hindi Teacher. It is contended that similarly situated teaching and non- teaching staff appointed by the Managing Committee in K.P.A.N. School of Education, Bankoi, Khurda though was approved by the Govt. vide order dtd.14.01.1999 after taken over basing on the Notification issued by the Law Department on 27.01.1997 under Annexure-3, but the services of the Petitioner was never approved. 3.2. Challenging non-approval of his services the Petitioner and similarly situated employees when moved the Opp. Party No. 2, the said Opp. Party vide communication dtd.14.03.2005 under Anenxure-9 and subsequent communication issued on 27.07.2005 under Annexure-11 as well as Annexure-13 though requested the Govt. to approve the services of the Petitioner and other left out teaching and non-teaching staff of K.P.A.N. School of Education, Bankoi, but no decision was taken on such request made by the Opp. Party No. 2 by the Govt.. On the face of such recommendation made by the Opp. Party No. 2 when the services of the Petitioner was not approved, Petitioner approached the Tribunal in T.A. No. 6(C) of 2013 arising out of OJC No. 12066 of 1998. The Tribunal vide order dtd.07.04.2017 considering the submission made by the learned counsel appearing for the Parties therein disposed of the matter inter alia with the following order:- “Since we do not find any ground to strike down Sec. 8 of the PAN Ordinance/Act, 1997, it will not be possible to make any such order. However, that being so, as per Sec. 8 of the said Act, the teaching and non- teaching employees who joined in the post as on the 1s April, 1996, who have the requisite qualifications for holding such posts and whose posts are within prescribed yardstick as that of Page 2 of 6 // 3 // similar schools shall have to be deemed to have been absorbed in the government school from the date of taking over. There is no yardstick relating to private institutions. The argument of the applicants that since the number of students who were studying and allowed to appear in the examination is higher and as there was no prescribed yardstick available for private schools, the employees on the date of taking over, is to be considered as government employees after taking over of the school cannot be accepted in view of the provision of Section 8 of the Ordinance/Act. However, those employees who were in the school on or prior to 1990, need to be considered as per the said section From the annexures relied upon by both the parties it is seen that the proposals relating to absorption of left over teaching and non-teaching staff was under examination This can only be done by an appropriate policy decision of the government. Accordingly a decision in this regard may be taken within a period of six months from the date of receipt of copy of this order. Further, we make it clear that the decision in these O.As shall not be an impediment to State respondents to consider the grievance of the applicants by taking an appropriate policy decision.” 3.3. It is contended that since by the time Petitioner was appointed as a Hindi Teacher, there was no prescribed yardstick and the Managing Committee taking into account the requirement appointed the Petitioner and similarly situated teaching and non- teaching staff, the services of the Petitioner was required to be approved. But Govt.-Opp. Party No. 1 though approved the services of 12 nos. of teaching and non-teaching staff vide order dtd.14.01.1999 after the School was taken over in terms of the Page 3 of 6 // 4 // Notification issued by the Law Department under Annexure-3, but the services of the Petitioner was never approved by the Govt. 3.4. It is also contended that since Opp. Party No. 2 found the claim of the Petitioner for his approval to be a genuine one, recommendation was made to the Govt. vide Annexure-9, 11 & 13. On the face of such recommendation made by the Opp. Party No. 2, the claim of the Petitioner could not have been rejected vide the impugned order. It is accordingly contended that the impugned order is not sustainable in the eye of law. 4. Mr. R.N. Mishra, learned Addl. Govt. Advocate though made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party Nos. 2 and 4 while supporting the impugned order, it is contended that since the school in question failed to produce relevant records in support of the appointment of the present Petitioner and the Petitioner was not appointed as per the prescribed yardstick, his claim has been rightly rejected. Mr. Mishra also brought to the notice of this Court the report submitted by the then Inspector of Schools, Khurda Circle on 12.09.1997 vide Annexure-18. 5. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the claim of the Petitioner for his absorption has been rejected by the Opp. Party No. 1 on the ground that the Petitioner was not appointed as per the prescribed yardstick and on the other ground that the school in question failed to produce relevant records in support of the appointment of the Petitioner. But it is found from the record that by the time the Petitioner was appointed vide order Page 4 of 6 // 5 // under Annexure-1, no prescribed yardstick was there and the said fact is also admitted by the Opp. Parties in their counter affidavit. Therefore, the ground taken by the Opp. Party No. 1 while rejecting the claim that the Petitioner was not appointed as per the prescribed yardstick is not sustainable in the eye of law. The other ground taken by the Opp. Party No. 1 regarding non-availability of records, this Court is of the view that since the Petitioner was appointed vide order dtd.24.08.1994 under Annexure-1 and teaching and non- teaching staff so appointed by the School in question up to 01.04.1996 have been approved vide order dtd.14.01.1999, the stand taken by the Opp. Party No. 1 regarding non-availability of records with regard to appointment of the Petitioner and his continuance is also not acceptable. 5.1. Therefore, in view of such factual position available in the case record and placing reliance on the recommendation made by the Opp. Party No. 2 under Annexure-9, 11 & 13, this Court is inclined to quash the impugned order of rejection so far as it relates to the Petitioner. While quashing the same, this Court directs Opp. Party No. 1 to take a fresh decision on the claim of the Petitioner. It is observed that while taking such a fresh decision, Opp. Party No. 1 shall take into consideration the recommendation made by the Opp. Party No. 2 under Annexure-9, 11 & 13 as well as the order of approval passed in respect of 12 nos. of employees of the Petitioners’ School vide order dtd.14.01.1999. Opp. Party No. 1 shall also take into consideration the enquiry report submitted by the Inspector of Schools under Annexure-18. Such a fresh lawful decision shall be taken by the Opp. Party No. 1 within a period of Page 5 of 6 // 6 // two (2) months from the date of receipt of this order with due communication to the Petitioner.
Decision
6. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2023 10:50:55 Page 6 of 6