JUDGMENT
G.B. Pattnaik, J.
1. The petitioner who was a teacher of Radha Krushna Jew High School has approached this Court as the Managing Committee of the school did not allow him to resume his duties as a teacher notwithstanding the direction given by the Inspector of Schools. It is alleged in the writ application that while the petitioner was continuing as a teacher of the school, he wanted to get himself trained by undergoing training and for that purpose made an application to the school for leave. The Managing Committee passed a rasolution granting leave to the petitioner and the petitoner was duly relieved by the Secretary of the Managing Committee on 11-8-1976. On completion of the training when the petitioner intimated the Secretary of the Managing Committee about the completion of his course, and would join on 1-4-1973 but no letter had been received from the Secretary. When on 1-4-1978 factually the petitioner joined the Institution he was not allowed to discharge his duties and on the other hand was is restrained by the Secietarv of the Managng Commitee to perform us duties The penecner brought this matter immediately to the notice of the Tnspesier of Schools and the Inspector directed that the petitioner should be allowed to join. But even though the order of the Inspector was communicated to the Secretary of the Managing Committee, yet the petitioners was not allowed to join his duties. For such disobedience of the orders of the inspector. the Managing Committee was ultimately superseded in accordance with law. During the period of suatfrsession even though the Inspector continued to remain in charge of the Managing Committee but did not allow the petitioner to resume his duties and on the other hand, asked the petitioner to wait till the decision is taken by the State Government in the appeal that had been preferred against the order of supersession of the Managing Committee. The petitioner further avers that even though the appeal was ultimately dismissed and the superseded Managing Committee was reconstituted, but still the petitioner having failed in his attempt to join the post from where he had been relieved the petitioner approached this Court. The petitioner preys th3t he may be permitted to join the Institution as a teacher and it must be held that he was coninuing in service all through and all the airrear salary from the date he was prevented from discharging his duties be paid to him
2. Pursuant to notice issued by this Court, a. counter affidavit has been tiled on behalf of opp. parties 1 to 3 being sworn to by tile ‘Administrative Officer in the office o1 the Inspector of Schools. Toe- assertions made in the writ application have all been admitted. The fact that he was gianted study leave has also been admitted. But so far as inaction on the part of the Inspector is concerned, while he was continuing to remain in charge of the institution in not allowing the petitioner of resume his duttes. it has been staed that because of the stay order passed by the appellate authority, the Inspector thought it appropriate not to allow to resume his duties and thereafter he thought that the reconstituted Managing Committee -would take a decision in the mailer It has further been aveirtd that in the meantime the petitioner has been appointed as a primay school teacher on being selected by the Selection Committee under the Disuict Inspector of Schools, Bhadrak-I.
3. On behalf of the superseded Managing. Committee a counter affidavit has been liled being sworn to by the clerk of the Advocate appearing for the said Committee and the tact that the petitioner was relieved though has been admitted, out the tact that he was granted study leave has been denied.
4. A rejoinder affidavit has been filed on behalf of the petitioner refusing the stand taken in the counter affidavit, of opp. party No. 4. It is to be noted that though one Chandramani Choudhury had been appointed as a teacher in place of the petitioner and was arrayed as opposite party No. 5 and she also has entered o appearance in this proceeding, but no return has been tiled by her.
5. In view of the rivat stand of the parties, the sole question that arises for consideration is whether the petitioner was granted any study leave by the Managing Committee to prosecute studv and further even if no studv leave had been granted but no order of termination having been passed by the Managing Committee who was the employer of the petitioner and he had been relieved of his duties to pursue, his studies, whether the relationship of employer and employee ceases. Though the Inspector of Schools in the aiffidavit has also admitted that the Managing Committee granted study leave to the petitioner, but on perusing the resolution book which was produced before us in course of hearing, it is difficult for us to accept that assertion of the petitioner. But it is conceded on behalf of me superseded Managing Committee also who was being represented in this proceeding by Mr. Das that the petitioner was relieved of his duties as a teacher and was permitted to join the training course and no order of termination had been passed. According to Mr. Das the very tact that he was not allowed to resume his duties tentamounts an order of termination. We are unable to accept this stand taken by the superseded Managing Committee. That apart, the Inspector of Schools having considered the grievance of the petitioner and having directed the Managing Committee to allow the petitioner to resume his duties, there was no justification on the part of the Managing Committee in still preventing the petitioner from joining his post and discharging is duties. If the Maraging Committee felt aggrieved by the order of the Inspector, they could have approached this Court, Be that as it may, the Managing Committee having already been superseded in accordance with law and that, order having been affirmed in appeal and the matter not having been challenged in any higher forum, the super seded Managing Committee has no focus .stand to assail the decision of the Inspector or to have any say in the matter. Needless to mention that the reconstituted Managing Committee has chosen not to enter appearance in this proceeding nor any return has been filed in this Court on behalf of the said re-constituted Managing Committee. In this view of the matter, there cannot be any dispute that the petitioner who h3d been appointed as a teacher of the school continues to be a teacher of the school the said appointment not having been terminated in accordance with law and, therefore, the Managing Committee was not justified in preventing the petitioner from joining his duties after the petitioner returned from the training course and submitted his joining report. We are also of the considered opinion that the appointment of opp. party No. 5 in the post which was being occupied by the petitoner is also without jurisdiction and said opp. party No. 5 cannot resist to continuance of the petitioner as a teacher of the school.
6. In course of hearing, Mr. Das also submitted before us that the gross delay on the part of the petitioner disentitles him to invoke the jurisdiction of this Court and in support of the same, placed before us a decision of this Court reported in 1989 (II) OLR 338 (Bsuli Charan Behera v. State of Orissa and Ors.) which was a case in relationship to an employee of the very same institution. Apart from the fact that Mr. Das has no locus stand! having entered appearance for the superseded Managing Committee, we are also not inclined to reject the application on the ground of laches particularly when the petitioner approached the Educational Authorities and obtained an order from the Educational Authorities, but yet that order has not been implemented even when the Inspector of Schools remained in charge of the Managing Committee after the Managing Committee was suparscded by the appropriate authority under the Act. We really fail to under- stand why the Inspector did not permit the petitioner to discharge his duties as a teacher of the school when the Inspector himself was in charge of the management of the school after the disposal of the appeal by the superseded Managing Committee which stood dismissed by the State Government. On that as it may, in view of our conclusion above there cannot be any dispute that the petitioner is entitled to continue as a teacher of the school. The petitioner’s subsequent appointment as a teacher of a Primary School does not take away his right to be absorbed as a teacher of the school wherefrom he had been relieved of without any termination he was prevented from discharging his duties. In the aforesaid circumstances, we direct that the petitioner must be permitted to join Radha Krushna Jew High School as a teacher and until his services are lawfully terminated should be pernrtted to continue and get his salary regularly.
So far as the past period is concerned, we are of the opinion that the salary of the petitioner may not be paid to him particularly in view of the fact that he did not aporoach this Court immediately when he was prevented from discharging his duties as a teacher, but his services prior to the date of his relief from the post to undergo training shall be taken into account to decide the length of service of the petitioner. The petitioner may immediately get himself relieved from the Primary School where he has been appointed and report to the Radha Krushna Jew High School. Needless to mention that on the date of the petitioner submits his joining report, opp. party No. 5 would be relieved from the School. Since opp. party No. 5 has already rendered sufficient years of service, the Inspector of Schools may consider for her absorption against a suitable post if permissible under Jaw. The writ application is allowed but there would be no order as to costs.
B.N. Patnaik, J.
I agree.