CASE NO.: Appeal (civil) 6844 of 2003 PETITIONER: State of Orissa and Ors. RESPONDENT: Vs. Rajendra Kumar Das and Anr. DATE OF JUDGMENT: 29/08/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT. JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P. (C) No. 7032 of 2002)
[With CA No.6846/2003 (Arising out of SLP (C) No. 7994/2002, CA
No.6848/2003 (Arising out of SLP (C) No. 9699/2002, CA No.6847/2003
(Arising out of SLP (C) No. 20165/2002, CA No.6845/2003 (Arising out of
SLP (C) No. 19708/2002
ARIJIT PASAYAT,J.
Leave granted.
As in all these appeals basic factual matrix is the same, except
that the dates are different, and the points of law involved belong to
the same spectrum; they are disposed of by this common judgment.
The factual background can be adumbrated concisely as follows:
The responded no.1 in each case filed a writ application before
the Orissa High Court claiming that he was appointed as “fourth peon”
by the management of the concerned institution, which is an “aided
educational institution” as defined under the Orissa Education Act,
1969 (in short the ‘Act’) and Orissa Education (Recruitment and
Conditions of Service of Teachers and Members of the Staff of Aided
Educational Institutions) Rules, 1974 (in short ‘Recruitment Rules’).
It is not in dispute that if an institution is an aided educational
institution, same is governed by the Act and rules framed thereunder.
The Recruitment Rules are framed under the Act. As the functionaries of
the State did not approve the appointment holding the same to be beyond
the prescribed yardstick, writ applications were filed for direction to
the concerned authorities to accord approval to the appointment.
The High Court by the impugned judgments in separate writ
applications came to hold that the functionaries of the State were not
justified in refusing to accord approval. Stand of the State Government
was that circular dated 8.7.1981 contained yardstick for fixation of
standard staff for the Non-Government Secondary Schools in supersession
of earlier circulars. Under the “category of staff” the number of peons
which can be appointed was clearly spelt out. Only if the roll strength
of the institution exceeded a particular number, one post of “Daftary”
was admissible. According to the State Government the post of
“Daftary” is a promotional post and, therefore, the concept of a
“fourth peon” as sought to be canvassed by the writ petitioners is
without any legal foundation. The position was further clarified by
Circular dated 27.3.1992. The High Court on consideration of the rival
stands came to equate the “fourth peon” with “Daftary” and held the
claim of the writ petitioners warranted acceptance.
In support of the appeals learned counsel for the State of Orissa
submitted that the High Court missed to consider several vital aspects.
Firstly, there is no prescription of a “fourth peon” in the yardstick
prescribed. The post of “Dafrty” is a promotional post and it carries
higher scale of pay. That being the position, the last entrant cannot
claim the post of the “Daftary”.
Per contra, learned counsel for the concerned writ petitioners
submitted that the High Court has considered the circulars and come to
the right conclusion that the claim for appointment as the “fourth
peon” is legally enforceable.
At this juncture it is to be noted that at different points of
time yardsticks were formulated. Government of Orissa, Education & Y.S.
Department, issued Circular No. 28365-EYS dated 8.7.81 fixing standard
staff for the non-government secondary schools. So far as peons are
concerned, the relevant portions of the circular read as follows:
“Category of staff 3 class 5class 7 class
………..
9.Peons (I) Office Peon 1 1 1
(ii) Office Attendant 1 1 1
(iii) Night watcher cum
sweeper 1 1 1
Notes
…………
C)(ii) Where the roll strength of the school exceeds 100 one
post of Daftary is admissible.
…….”
Subsequently by another circular No.155000-XVIIEP-50/91-E, dated
27th March, 1992 the position was further clarified as under:-
“I am directed to say that the question of fixation of
revised yardstick for appointment of class IV employees in Non-
government Secondary Schools was under consideration of
Government for some time past. After careful consideration
Government have been pleased to decide that the yardstick for
class IV employees of Non-Government Secondary Schools shall be
as follows:
Category of staff 3 class 5class 7 class
(i) Office Peon 1 1 1
(ii)Science Attendant 1 1 1
(iii)Night Watcher cum 1 1 1
Sweeper
Where the roll strength of 10 Class High School is 500 (five
hundred) or more, one post of Daftary admissible.
For the schools running shift system for shortage of
accommodation one additional post of peon is admissible.
The yardstick will come into force with effect from the Ist
January 1992 and Government order referred to above stands
modified to the extent indicated above.”
A comparison of the two circulars shows that under 1981 Circular
the requisite roll strength was 100, which was changed to 500
subsequently in the 1992 Circular.
It is fairly accepted by learned counsel for the writ petitioners
that the expression used in the two circulars is “Daftary” and not
“fourth peon”. The High Court seems to have fallen in error by
proceeding on the basis as if the circulars referred to “fourth peon”.
This is clear from the reading of the various judgments impugned in
these appeals.
It is to be noted that post of “Daftary” carries higher scale of
pay and is a promotional post for class IV employees. That being the
position, the High Court was not justified in directing approval of the
writ petitioners’ services as “fourth peon”. But one significant aspect
cannot be lost sight of. If a school was entitled to have a “Daftary”,
certainly the appointment was to be made by promoting one of the three
persons i.e. Office Peon, Office Attendant and Night Watcher-cum-
Sweeper, there being no other class IV post in the institution. It is
for the Managing Committee of the institution to decide who is to be
promoted and thereafter seek approval of the concerned authorities.
That way the claims of the writ petitioners could have been considered
by the authorities, on being appropriately moved by the management. It
is undisputed that the writ petitioners were appointed by the managing
committees’, may be under a misreading of the relevant government
orders.
We, therefore, while allowing these appeals direct that the
management of the concerned institution shall move the concerned
authorities for approval to the promotional appointment of a class IV
employee, as “Daftary”. Simultaneously, it can also recommend for
appointment to the class IV post, in case approval is accorded to the
recommendation for appointment of “Daftary” on promotion. The decision
on both motions shall be taken within three months from the date of
submission of the recommendation in accordance with law keeping in view
the operative yardsticks in force at the time of appointments were
made. Even if there has been refusal earlier, the matter shall be
reconsidered in the light of what has been stated above.
Before we part with this case we must indicate that undisputedly
there were several decision of the Division Bench rendered at earlier
points of time, taking a view contrary to the one taken in the impugned
judgments. Learned counsel for the respondents (writ petitioners)
fairly accepted that it is so. In fact, copy of one such decision
dated 3.12.1998 in O.J.C. 14004/97 was placed on record. The decisions
do not appear to have been brought to the notice of the learned Judges
hearing the writ petitions. This speaks volumes about the seriousness
exhibited by learned counsel appearing for the parties, – particularly
the State Government, before the High Court.
The appeals are allowed in the aforesaid terms, leaving the
parties to bear their respective costs.
