JUDGMENT
L. Mohapatra, J.
1. The petitioner in this writ application has sought for a direction to quash the order dated 27.1.2000 passed by the Superintendent of Sanskrit Studies, Orissa (Annexure-6) rejecting the proposal for approval of the appointment of the petitioner as an Assistant Pandit in Damodar Tol. Balibil, in the district of Jajpur and for a further direction to the Superintendent to approve the appointment of the petitioner w.e.f 11.9.1 996 and for payment of arrear salary.
2. The case of the petitioner is that Damodar Tol at Balibil, in the district of Jajpur was a Madhyama institution entitled to have one post of Acharya Head Pandit, two posts of Sastri Pandit, one post of B.A., B.Ed, teacher and another post of I.A., C.T. teacher in terms of the yardstick of 1987. Keeping in mind, the aforesaid yardstick, the petitioner was appointed as an Assistant Pandit in the said institution on 2.1 1.1 992. At the relevant time, the petitioner was a Upa-Sastri though the requirement for holding the post of Assistant Pandit in Madhyama stream was Sastri. The petitioner acquired Sastri qualification on 11.9.1996. The Managing Committee of the said School passed a resolution on 9.12.1996 confirming the appointment of the petitioner against the said post and sent a proposal to the Superintendent of Sanskrit Studies, Orissa-opp. party No. 4 for the purpose of approval of his appointment. On receipt of the said proposal, the opp. party No. 4 by letter dated 26.11.1999 called upon the Head Pandit of the institution to furnish his views with regard to appointment of the petitioner as an Assistant Pandit of the said institution. In the said letter certain other queries were also made and the Head Pandit of the institution was directed to comply with the queries. The Head Pandit of the institution in compliance of the direction contained in the letter dated 26.11.1999 submitted his views and answered the queries made by the opp. party No. 4 in his letter dated 1.12.1999. In spite of receipt of the reply from the Head Pandit of the institution, the opp. party No. 4 turned down the proposal for approval of the petitioner’s appointment as an Assistant Pandit by order dated 27.1.2000 stating that the compliance report submitted by the Head Pandit is not to the point. The said order dated 27.1.2000 has been challenged in this writ application.
3. A counter affidavit has been filed by the opp. party No. 4 wherein it is stated that the minimum qualification for appointment of an Assistant Pandit is Sastri whereas at the time of appointment, the petitioner was only Upa-Sastri and therefore, the Managing Committee of the institution committed an irregularity at the time of appointment of the petitioner. By the time the petitioner acquired the qualification of Sastri, the School had become an aided one and therefore, the petitioner could not have been appointed again as Sastri without following the recruitment procedure as prescribed under the Orissa Education (Recruitment etc.) Rules of 1974. On the aforesaid ground only the proposal for approval of the appointment of the petitioner had been turned down.
4. Shri K.K.Swain, the learned counsel appearing for the petitioner submitted that at the time of appointment of the petitioner, the Tol in question was an unaided one. The Tol being an unaided one at the relevant time, the Managing Committee had the full power to make such appointment as it deemed just and proper. The petitioner having been appointed in the post of Assistant Pandit in the year 1992 when the Tol was unaided, compliance of-1974 Rules was not necessary. Therefore, the initial appointment of the petitioner by the Managing Committee when the institution was an unaided institution cannot be called irregular. After the Tol became an aided one, the earlier teaching and non-teaching staff of the institution were allowed to continue in their respective posts and only after the petitioner acquired the requisite qualification to hold the post of Assistant Pandit, proposal was submitted by the Managing Committee of the institution for approval of his appointment. Therefore, there is no irregularity or illegality in submitting such a proposal and it was not open for the opp. parties to reject the proposal only on the ground that the initial appointment of the petitioner as Assistant Pandit was not in accordance with law as the petitioner did not have the requisite qualification for such appointment. Shri Swain relying on Rule 30 of the Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991 submitted that the Managing Committee of an institution had the absolute right in the matter of appointment of teaching and non-teaching staff in accordance with the provisions contained in the Act, Rules and instructions of the Department. So far as Orissa Education Act is concerned, there is no provision for appointment of teaching and non-teaching staff in an unaided recognised institution. The only provision contained in the Orissa Education Act i.e. Section 10 prescribes that the qualification required for appointment of a teacher and other members of the staff of aided educational institutions and their conditions of service relating to salary, leave, pension, provident fund, age of retirement, disciplinary action and other matters shall be as may be prescribed. Under Section 27 of the Act, the State Government is empowered to make rules for carrying out any of the purposes of the Act and in exercise of powers Under Section 27, 1974 Rules were framed which came into effect from 1.4.1974. The said rules are exclusively meant for aided educational institutions and have no application to unaided institutions. Therefore, the appointment of the petitioner having been made at a time when the School was unaided, the 1974 Rules were not applicable to the case of the petitioner and the Managing Committee had the right to make appointment in terms of the Act and the rules existing then.
5. The learned Addl. Government Advocate submitted that the petitioner’s initial appointment was made when the School was an unaided one and after obtaining the qualification of Sastri, the petitioner was re-appointed by the Managing Committee on 11.9.1996 and such re- appointment could not have been made ignoring the 1974 Rules governing appointment of the teachers.
6. Undisputedly, the petitioner was appointed as an Assistant Pandit by the Managing Committee of the institution’on 2.11.1992. Admittedly on the said date, the institution was unaided and admittedly the petitioner did not have the requisite qualification for such appointment. Now the question is as to whether the appointment of the petitioner was regular, legal or not. Section 10 of the Orissa Education Act runs as follows :
“10. Conditions of service of the staff of aided institutions : (i) The qualification required for appointment as a teacher and other members of the staff of aided educational institutions and their conditions of service relating to salary, leave, pension, provident fund, age of retirement, disciplinary action and other matters shall be as may be prescribed.”
The said section only speaks of aided educational institutions and has no application to an institution which is unaided. The Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 also prescribe the procedure for appointment of teaching staff in an aided educational institution and the rules have no application so far as appointment in unaided institutions are concerned. The learned Addl. Government Advocate has not been able to cite any provision contained in the Act or the rules governing appointment of teachers in an unaided educational institution. On the other hand, Rule 30 (k) of the 1991 Rules prescribes that the Management will make appointment of teaching and non-teaching staff in accordance with the provisions contained in the Act, Rules and instructions of the Department. Therefore, I am of the view that the appointment of the petitioner by the Managing Committee as an Assistant Pandit in the said institution when the School was unaided cannot be termed as irregular or illegal even though the petitioner did not have requisite qualification at the time of such appointment.
7. The second question that arises for consideration is what will be the status of such employees when the institution becomes an aided one. To answer this question, it is necessary to see a decision of this Court reported in (1993) 1 ATT (HC) 306, (Kumari Sabitri Dash v. State of Orissa and others) wherein this Court held that the moment a School becomes an aided educational institution, its erestwhile teachers who are covered by the staffing pattern would ipso facto become employees of the aided educational institution, but then for good and sufficient reason, a particular teacher may not be so accepted.
8. In view of the aforesaid decision of this Court, the petitioner ipso facto becomes an employee of an aided educational institution provided he comes within the staffing pattern. There is no dispute that the appointment of the petitioner was within the ambit of the staffing pattern existing then and therefore, the moment the School became an aided one, the petitioner ipso facto became an employee of an aided educational institution.
9. The third question that comes for consideration is whether on acquisition of the requisite qualification, the appointment of the petitioner can be approved or not. This Court in a decision reported in 1994 Vol. (II) OLR 534, (Khitish Chandra Pati and Anr. v. State of Orissa and others) held that approval of a teacher becomes necessary for the purpose of making payment of salary under the direct payment scheme and it has got no connection with the appointment of a teacher given by the Managing Committee. The apex Court in a decision reported in JT 1997 (4) SC 588 (State of Orissa and Anr. v. Damodar Nayak and another) held that the benefit of grant-in-aid can only be extended only on acquisition of the requisite qualification and not from the date of appointment.
10. In view of my earlier finding that the petitioner ipso facto became an employee of an aided educational institution after the institution became an aided one, continued to hold the post and only after acquisition of the requisite qualification, a proposal was submitted by the Managing Committee for approval of his appointment. In the present case, the petitioner’s appointment was at a point of time when the School was unaided and 1974 Rules were not applicable. Therefore, in absence of any provision either in the Act or the Rules and in view of Rule 30 (k) of the 1991 Rules, the Managing Committee had the right to appoint the petitioner and there cannot be any illegality in such appointment. The proposal having been submitted only after acquisition of the requisite qualification, I do riot find any illegality committed by the Managing Committee in submission of such a proposal and rejection of the proposal for approval on the ground that the petitioner’s appointment at the initial stage was not in accordance with law cannot be accepted as the Act and the Rules did not make any provision for appointment in unaided institutions and it was left to the discretion of the Managing Committee to make such appointment.
I, therefore, allow the writ application and direct the opp. parties to approve the appointment of the petitioner as Assistant Pandit from 11.9.1996 when he acquired the requisite qualification of Sastri to hold the post of Assistant Pandit. I, further direct that the petitioner shall be paid all his differential arrear dues within a period of six months from the date of communication of this judgment. The requisites be filed within one week.