JUDGMENT
P. K. Mohanty, J.
1. The writ petitioner has prayed for quashing the order dated 1.6.1998 of the Inspector of Schools, Khurda Circle, Khurda adjusting opp. party No. 5 in the High School against the vacant Trained Graduate Post (Annexure-3). The petitioner consequently prays for a direction to allow her Trained Graduate Scale of pay w.e.f. 1.1.1996, the date when the vacancy was caused in the post of T.G. Teacher.
2. Briefly stated, the petitioner’s case is that she is working as an Assistant Teacher in Sri Satyasai High School, Unit-III, Bhubaneswar in the district of Khurda since 21.7.1983. The school became eligible to receive grant-in-aid and accordingly, names were recommended by the Managing Committee for release of grant-in-aid which included the name of the petitioner. The Inspector of Schools, on verification of records, approved the appointment of the staff including the petitioner’s appointment as a Classical Teacher with effect from 21.7.1983 vide Annexure-1. In the year 1995, the term of the Managing Committee having expired, an administrator was appointed to remain in-charge of the Managing Committee. One Manjuli Mazumdar, who was holding the post of a Trained Arts Graduate Teacher, retired from service on 31.12.1995 as a result of which, a vacancy was caused in the post of Trained Graduate Teacher. The petitioner made a representation to the Inspector of Schools for adjusting her in the Trained Graduate Post since she had acquired B.Ed. qualification in the year 1985. It is claimed that she was taking classes as a Trained Graduate Teacher since after retirement of Smt. Mazumdar. The petitioner again made a representation on 10.7.1997 to the Inspector of Schools for appropriate action. On 18.5.1998, the Inspector of Schools forwarded the representation of the petitioner to the Director, but ultimately by Annexure-3 dated 1.6.1998, opp. party No. 5 who was holding the post of Trained Matric in the Primary School was adjusted against the Trained Graduate Post in the High School. It is the petitioner’s claim that she was within the standard staff of the High School whereas the opp. party No. 5 was a teacher in the Primary School and therefore, she would not have been adjusted against a Trained Graduate Post in the High School ignoring the claim of the petitioner, specially in view of the fact that the petitioner was appointed on 21.7.1983 whereas the opp. party No. 5 was appointed in the Primary wing in the year 1985.
3. The opp. party No. 3, the Inspector of Schools and the opp. party No. 5 have filed their separate counter affidavits. The Inspector of Schools, opp. party No. 3, in his counter affidavit asserts that Sri Satyasai High School, Unit-III, Bhubaneswar is an aided High School and the petitioner is working as a Classical Teacher since 21.7.1983 whereas the opp. party No. 5 was working as an Assistant Teacher in Sri Satyasai U.P. School since 1985 as a Trained Matric Teacher. In the retirement vacancy, the opp. party No. 5 was adjusted as because both the High School and the U. P. School are under one management of Sri Satyasai Trust. The Director, Secondary Education after considering the representation of opp. party No. 5, issued direction to the Inspector of School to adjust her against the vacancy. The representation of the petitioner have been forwarded to the Director, Secondary Education on 18.5.1998. It is also submitted that the petitioner was appointed as a Classical Teacher and accordingly, she is entitled to teach Sanskrit subject in the School. With regard to the claim of the petitioner that she was entrusted to take up classes after the retirement of Smt. Mazumdar, it is said, that is an arrangement made by the Headmaster of the School.
4. Opp. party No. 5 in her counter affidavit in para-6, however, asserts that although the school in question is a composite school having one management and one Headmaster, yet the Inspector of Schools was releasing grant-in-aid in favour of the Secondary wing and the D.I. of Schools was releasing grant-in-aid in favour of Primary wing. The opp. party No. 5 was receiving her monthly salary under direct payment scheme from District Inspector of Schools through the Headmaster of the composite schools. The allegation in the writ petition that both wings have separate entity have been denied. The opp. party No. 5 asserts that since the petitioner was appointed as a Classical Teacher without B.Ed. qualification in the year 1983 and acquired B.Ed. qualification in the year 1986 much after her, she has no claim to the post. The opp. party No. 5 has taken the plea that teachers serving against Ex-cadre post of a Classical Teacher cannot be promoted/adjusted to a cadre post of a Trained Graduate Teacher. It is specifically asserted that the Administrative Officer incharge of the Management of the School considered the case of both of the petitioner and the opp. party No. 5 since opp. party No. 5 is senior to the petitioner as she acquired B. Ed. qualification earlier to her, recommended her case to the Director, Secondary Education for approval of her promotion/adjustment in the Trained Graduate Post. A copy of the letter of the Administrative Officer is annexed as Annexure-B/5.
5. In view of the pleadings of the parties, the factual position is admitted. The petitioner was working as a Classical Teacher in the High School whereas the opp. party No. 5 was appointed in the Matric C.T. Post in the primary wing. The question, therefore, is whether a teacher working in the primary wing or in the primary school could be adjusted against the vacancies in a Trained Graduate Post in an aided educational institution without following the requirement of Rule 5 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. Rule 8 of the Recruitment Rules carves out an exception to selection by Board. The relevant Rule-8(2)(b) of the Recruitment Rules, 1974 may be quoted hereunder:
“8. (2) Notwithstanding anything to the contrary in these rules it shall not be necessary to apply to or submit any appointment made by the Managing Committee of Governing Body to the Selection Board, if:
(a) xxx xxx xxx
(b) the vacancy in a post, carrying higher scale of pay, is filled up with prior approval of Government in case of a College and the concerned Director in case of an institution other than a College, by an employee of the same institution who possesses the prescribed qualifications and experience and whose performance in respect of the post he holds, has been found satisfactory. Such appointment shall be treated as regular appointment from the date, the same is filled up on ad hoc basis by the Managing Committee or the Governing Body, as the case may be, in the event of its approval by the competent authority.”
It is thus, clear that in case, the Managing Committee of a High School fills up a vacancy in a post carrying higher scale of pay with prior approval of the Director, by an employee of the same institution possessing prescribed qualification and experience, it need not apply to the selection board for recommending a candidate for appointment to such post. Such appointment by the Managing Committee is to be treated as regular.
6. Admittedly and as revealed from the impugned order itself, opp. party No. 5 was appointed as an Assistant Teacher in the primary wing as against a Matric C.T. post in the year 1985, whereas the petitioner was appointed as a Classical Teacher in the High School during 1983. The petitioner obtained B. Ed. qualification in the year 1986, but opp. party No. 5 obtained B.Ed. qualification in the year 1985. Opp. party No. 5 herself has admitted in paragraph 6 of the counter that the school in question was the composite school and as such, the Inspector of Schools was releasing grant-in-aid in favour of the Secondary wing, whereas D.I. of Schools was releasing the grant-in-aid in favour of the primary wing. She receives payment of her salary from the D.I. of Schools since she was serving in the primary wing. Thus, there cannot be any dispute that the petitioner was holding the post of a classical teacher in the High School wing and the opposite party was holding a Trained Matric post in the Primary wing acquiring B. Ed. qualification earlier or latter does not affect the merit position since by the time, the question of consideration for adjustment came in the year 1998 both the petitioner as well as opp, party No. 5 had acquired the requisite qualification.
7. Section 3(i) of the Orissa Education Act defines a school to mean an educational institution imparting instruction in standards of classes VIII to X leading to the High School Certificate Examination and may have the standards or classes of Upper Primary School attached to it. Upper Primary School has been defined under Section 3(1) of the Act mean an educational institution imparting instruction in the standards or classes VI and VII and may have the standards of primary school attached to it. But primary school has been defined under Section 3(n) to mean any educational institution imparting elementary standard of education comprises in standards or classes I to V. In such view of the matter, a High School would normally mean a school imparting instruction in Classes VIII to X, but it may also include upper primary school attached to it. According to the opp. party No. 5 herself, she was appointed in the primary wing of the school and receiving her salary components from the Government through the D.I. of Schools. The D.I. of Schools is the controlling authority in respect of the primary schools. The petitioner admittedly was receiving her salary and grant-in-aid components from the Inspector of Schools. Thus, there cannot be any manner of doubt that there were two recognised wings in the school like the secondary wing and the primary wing and receiving aid separately from the respective educational authorities, even though it was under a common education trust. Necessarily, the Managing Committee for each of the wing has to be separate.
8. Rule 8(2)(b) of the Orissa Education (Recruitment, and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 is an exception to the requirement of referring and selection of a teacher to an aided educational institution by the Selection Board. The exception is for vacancy in a post carrying a higher scale of pay by an employee of the same institution, who possesses prescribed qualification and experience and if he is found to be suitable for the post. Thus, the petitioner, who is admittedly serving in the High School wing and possessing the prescribed qualification and experience, she ought to have been considered in terms of Rule 8(2)(b) and not a teacher in a primary wing may be of a High School. The petitioner otherwise also being senior to opp. party No. 5 has an age over her for consideration. The provision of Rule 8(2)(b) and the exception carved out therein cannot be extended to an employee working under a different wing like the petitioner.
9. In that view of the matter, we quash the impugned order under Annexure – 3 and direct the Director of Secondary Education to consider the case of the petitioner forwarded by the school for adjustment against the vacant Trained Graduate post, in the vacancy caused due to superannuation of Smt. Majumdar, in accordance with law on its own merit within two months from the date of receipt of this order and communicate the same to the concerned authorities and the petitioner.
The writ petition is accordingly allowed, but there shall be no order as to costs.
CH. P. K. Misra, J.
10. I agree.