HIGH COURT OF ORISSA : CUTTACK
WRIT APPEAL NO.04 Of 2002
In the matter of an application under clause-10 of the letters patent
Act read with Chapter-8, Rule-2 of the Orissa High Court Rules, 1948.
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State of Orissa & Others ...... Appellants
-Versus-
Nabin Kumar Beura ...... Respondent
For Appellants : Standing Counsel for
School & Mass Education Deptt.
For Respondent : M/s. K.K.Swain, P.N.Mohanty,
B.Jena & S.C.Das.
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PRESENT:
THE HON'BLE CHIEF JUSTICE SHRI V. GOPALA GOWDA,
AND
THE HON'BLE JUSTICE SHRI INDRAJIT MAHANTY.
Date of hearing and judgment : 27.07.2010
Indrajit Mahanty, J. The present letters patent appeal has been filed by the
State of Orissa, represented by the Secretary, School and Mass Education
Department, the Director, Secondary Education, Orissa and the Inspector
of Schools, Jagatsinghpur Circle seeking to challenge the judgment dated
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15.5.2001 passed by the learned Single Judge allowing O.J.C. No.8377 of
1998 with a direction to the State Government to create the post held by
the petitioner and approve his appointment and release salary component
within a period of six months from the date of communication of that
order.
2. Learned Standing Counsel for the School and Mass
Education Department submitted that the writ petitioner (present
respondent) had earlier filed O.J.C. No.7213 of 1997 before this Court
and the same was disposed of vide the order dated 14.7.1997 with the
following directions :
” … …. If the matter is pending as asserted by
petitioner, let the Inspector of Schools, Jagatsinghpur
Circle (Opp. Party No.3) deal with the matter and
dispose of the same within four months from the date of
receipt of our order.”
It is further asserted that after the aforesaid direction was
passed, the Inspector of Schools, Jagatsinghpur Circle in compliance of
the said direction, rejected the representation filed by the present Opp.
Party vide his office order dated 31.12.1997 on the following grounds :
” 1) That, the Managing Committee of the School
has appointed the petitioner against Supra post who
joined in the school on 1.8.92.
2) While appointing the petitioner against Supra
post the Mnaging Committee of the School has not
taken prior permission from the competent authority.
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3) Addl. Section teachers are not within the
standard staff. The petitioner is working against
unapproved post which not created by Government.”
Learned Standing Counsel further submitted that the Opp.
Party claims to have been appointed by the Managing Committee of
Jawahar Smruti Bidyapitha, Badhei as an Additional Section Teacher
(Supra post) on 19.7.1992. It was further asserted that much prior to
19.7.1992, the school in question had become an “aided educational
institution” and the appointment of the respondent had been made
without following the procedure prescribed under Rule-5 of the Orissa
Education (Recruitment and conditions of Service of teachers and
Members of the staff of aided educational institutions) Rules, 1974
(hereinafter referred to as “1974 Rules” ). He further submitted that since
the Managing Committee of the school in question appointed the
respondent by creating a post on their own volition as an Additional
Section teacher, his appointment was wholly invalid, since, creation of a
post of Addl. Section teacher had to be made only with the prior approval
of the Government, who bear the salary cost by way of grant-in-aid. It is,
therefore, asserted that since the Managing Committee without having
the necessary authority in law, created the post without the prior
approval of the State Government and thereafter, purportedly proceeded
to appoint the respondent in the said post without complying with the
requirement of Rule-5 of 1974 Rules, which prescribes the procedure for
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appointment of teachers and staff, the same had to be made through the
Selection Board and therefore, the appointment of any candidate without
the recommendation by the Selection Board is per se illegal and
unauthorised. In terms of Rule-5(8), the Managing Committee merely
possesses the right to appoint a person only for a period of six months
and/or till recommendation of Selection Board is received whichever is
earlier, would have been valid, provided prior approval of the Inspector
had been taken. Therefore, the learned Standing counsel submitted that
since neither prior approval had been sought for the creation of the post
nor any prior approval as per Rule-5 had been sought for nor obtained for
appointment of the respondent, the State Government was left with no
other alternative other than to reject the representation of the
respondent. He further submitted that since the appointment of the
respondent by the Managing Committee is without the recommendation
of the Selection Board and without the prior approval of the State
Government, the said appointment is clearly invalid. According to the
learned Standing Counsel, the Hon’ble Single Judge had failed to take
into consideration the aforesaid statutory requirements while allowing the
writ application in favour of the respondent and hence, prayed for
quashing of the same.
3. Mr.K.K.Swain, learned counsel for the respondent has
strongly supported the findings of the learned Single Judge as well as on
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a judgment of a Division Bench of this Court presided over by the Chief
Justice B.L.Hansaria (as his Lordship then was) in the case of Managing
Committee, Majhipada M.E.School Vrs. State of Orissa & Others,
1992 (I) OLR 447.
4. On perusal of the impugned judgment, it appears that the
learned Single Judge has dealt with two issues. The first being that
Section 5 of the Orissa Education Act was for the first time brought into
the Statute by Orissa Act No.13 of 1994 and secondly, the fact that the
respondent had got appointment in the year 1992 and the requirement of
‘prior permission’ for appointment of the respondent was no more
justifiable in view of the judgment of this Court in the case of Majhipada
M.E. School (supra) and therefore, came to hold that ‘post facto
permission’ should also be granted.
5. In so far as the second issue in relation to ‘creation of post’ is
concerned, the learned Single Judge concluded that since 1981 yardstick
clearly provides that in addition to one Trained Graduate teacher for
every three additional sections of classes VIII to X taken together, one
additional Trained Graduate teacher or one classical teacher according to
necessity would be admissible, he concluded that ‘the creation of a post’
is a mere formality and the proposal submitted by the Managing
Committee cannot be turned down only on the ground that the post had
not been created.
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6. At this juncture, it is essential to deal with the requirement
of Rule-5 of 1974 Rules which is quoted herein below :
“5. Procedure of application to the Board and appointment of
Staff in Aided Institutions – (1) The Secretary of the Managing
Committee the Governing body, as the case may be, of an
Aided Educational Institution shall, on or before the thirty-
first day of August every year apply to the Selection Board
with copy of each application to the concerned Inspector of
Schools in respect of Schools [Director of Higher Education]
in respect of Colleges in such manner as the Selection Board
may prescribe for selection of a candidate for appointment in
the vacancy or vacancies in teaching post, [***] and the
concerned Inspector of Schools and [Director of Higher
Education] shall process the applications so received and
transmit the same to the Selection Board by thirtieth day of
September every year with certificate of genuineness of the
vacancy or vacancies along with a statement of the vacancy
position in the Educational Institutions within his
jurisdiction.
xxx xxx xxx
(8) It shall not be necessary to apply to the Selection Board
for appointments to vacancies [for a period of six months or
till the date of receipt of the list referred to in Sub-rule (2)
from the selection Board whichever is earlier] and all such
appointments may be made by the Managing Committee or
the Governing Body, as the case may be, with the prior
approval of the Inspector in respect of an Institution other
than a College and of the Director in respect of a College.
xxx xxx xxx
(9) Notwithstanding anything contained in Sub-rule (8), it
shall be competent for the Managing Committee or the
Governing Body, as the case may be to extend the term of
appointment beyond six months till the recommendation of
the Selection Board is received with the prior approval of
Government.”
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7. Since reliance has been placed by the learned Single Judge
on the judgment of this Court in the case of Majhipada M.E.School
(supra) and a great amount of emphasis was laid by Mr.Swain thereon, it
now becomes necessary to consider the aforesaid judgment.
In Majhipada M.E. School’s case the facts are that one
Rasananda had been appointed as an Asst. Teacher on 1.7.1983
temporarily and continued as such till he was appointed as the
Headmaster of the school, first on ad hoc basis and then permanently, by
order dated 4.4.1987. The school started receiving the grant-in-aid from
1.8.1987. Therefore, Rasananda had been appointed prior to the
educational institution becoming an aided institution.
After a new Managing Committee was constituted and
assumed office, Rasananda’s service was terminated, against which order
he preferred an appeal before the State Education Tribunal under Section
10-A(3) of the Orissa Education Act, 1963. The Tribunal set aside the
termination order on the ground that ‘prior approval’ of the competent
authority was not taken prior to terminating his service and therefore,
direction was issued to reinstate Rasananda in the post of Headmaster.
That order of the Tribunal came to be challenged by the Managing
Committee before the High Court. Since admittedly ‘prior approval’ of the
concerned authority as required under section 10-A(I) of the Act had not
been taken, the termination of the service of Rasananda, without
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obtaining ‘prior approval’ of the authority was declared to be invalid and
the finding of the Tribunal was up-held by this Court in paragraph-4 of
the said judgment.
8. In contrast to the facts of Majhipada M.E.School, in the
present case, the respondent claims to have been appointed as an
Additional Teacher in the year 1992, after the institution had become
aided. In other words, while Rasananda had been appointed prior to the
institution coming to the fold of G.I.A., in the present case, the
respondent was appointed after the institution i.e. Jawahar Smruti
Bidyapitha had come into G.I.A. Scheme. The second fact of great
significance is that, in the case of Majhipada M.E. School, the
termination was made without complying with the requirement of Section
10-A of the Education Act, which required ‘prior approval’ for termination
and such a requirement was held to be ‘mandatory’.
9. While dealing with Majhipada M.E. School’s case, various
other contentions were also taken into consideration by this Court since
the learned counsel for the petitioner-Managing Committee therein,
raised a contention that continuance of Rasananda in the school beyond
six months of his first appointment was in violation of Rule-5(8) of the
1974 Rules, inasmuch as ‘prior approval’ of the concerned authority had
not been taken for his ‘appointment’ as required by the Rules. Therefore,
it was contended that the appointment of Rasananda in the school
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beyond the period of six months was void, for which reason prior approval
contemplated by Section 10-A(1) of the Act was not required to be taken.
In paragraph-6 of the judgment, this Court dealt with the
issues raised in the case and came to hold that the first question does not
present any problem, as the school having become aided on 1.8.1987, the
Rules which are meant for aided institutions would not have applied to
the cases of teachers appointed before 1.8.1987. On this ground itself,
the contentions raised by the learned counsel for the petitioner were
rejected.
10. It is important to note here that the facts of the present case
are distinctly different. The school in question i.e. Jawahar Smruti
Bidyapitha, Badhei became aided prior to 1992 and therefore, 1974 Rules
which are meant for ‘aided institutions’ would have total application to
the appointment of the respondent, since admittedly he had been
appointed much after the school had become aided. Therefore, the facts of
the present case are clearly distinct from the facts of the case of
Majhipada M.E.School.
Considering the importance of the issues raised and the
consequence of the impact of such a decision, in Majhipada M.E.School’s
case, this Court sought for assistance of other Senior counsel and
considered their contentions raised in course of argument.
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Reference was made to the proviso to Rule-5(8) and the Court
found some force in the contention that the proviso would indicate that if
appointment of a teacher is against the provision of Rule 5(8), his
appointment is not to become invalid in any way, but appropriate action
shall be taken against the Managing Committee. Reference was also made
to the letter dated 22.8.1977 issued by the Education and Youth Services
Department and printed at pages 739-40 of Panda’s Orissa Education
Manual, 1990 Edition which has dealt with the subject of extension of
service of teachers appointed on ad hoc basis beyond six months in aided
High and M.E. Schools and prior approval of the Government to extend
the term of appointment beyond six months as required by Rule-5(9) of
the 1974 Rules may be taken to have been accorded.
Reliance was placed on the aforesaid letter for the purpose of
indicating that, even though Rule-5(9) speaks of ‘prior approval’, post
facto approval was accorded by the Government by a general
communication covering a large number of cases. The Court also took
into consideration its own experience in the matter of ‘prior approval’ as
required under Rule-5(9) was rarely taken by the concerned authority and
the matter was referred to the authority ‘after the appointment’ is made
by the Managing Committee, and the concerned authority thereafter
accords approval retrospectively with effect from the permissible date.
Therefore, it was held that the strict letter of the rules has not been
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insisted upon and the Court declined to upset the ‘general convention’
that any appointment made ‘without prior approval’ would be illegal in
the eye of law.
11. Referring to the principles of ‘contemporanea expositio’ and
the judgment of the Supreme Court in the case of K.P.Varghese Vrs.
Income Tax Officer, (1983) 4 SCC 173 as well as various other
judgments and Authors, this Court came to the conclusion that, in
construing a statute Courts will give much weight to the interpretation
put upon it at the time of its enactment by those whose duty it has been
to construe, execute and apply. Accordingly, this Court laid down the
requirement of the Rule relating to ‘prior approval’ as mere approval,
which can be ‘post facto’ also. This Court held that it would be
unreasonable as it would unsettle the settled practice, if the Court holds
that the letter of the law, which requires ‘prior approval’, must mean what
it says and giving of approval afterwards would not meet the requirement
of law. Therefore, in order to make the provision reasonable, the same
was wholly read down.
In paragraph-14 of the said judgment this Court held that
because of lack of prior approval, appointment of a teacher cannot be
regarded to be invalid. But then, what view has to be taken regarding the
validity of the appointment, if there be no approval even afterwards ? This
question was answered by stating that the answer would depend on the
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fact as to who is questioning the appointment. If the approving authority
raises this question, the same would be permissible and what it too can
do is to refuse approval, the effect of which would be that the teacher
cannot continue after the approval is refused. This action would not
amount to invalidation of the very appointment, so much so as to regard
the same as void, because of which it could even be suggested that the
teacher was not entitled to receive his salary for the period of service
rendered by him prior to the date of refusal of the approval which would
have disastrous consequences. We cannot permit such a consequence to
take effect, because in such a case the teacher was not even entitled to
receive his salary, an effort may be made to recover the same from him.
In paragraph-18 of the said judgment, this Court has
expressed its view that it is not necessary to delve into the matter as to
whether appointment of teacher without prior approval is void or
voidable. It was held that we have taken this stand because, as already
observed, we would not regard the appointment made without prior
approval as void. This apart, the controversy as to when an action or
order is void and when it is voidable is too complicated and we do not
think it necessary to enter into the mess or quagmire.
12. On a detailed analysis of the case of Majhipada M.E. School
(supra), the facts of that case are distinct from the facts of the present
case as noted herein above. In so far as the issue of ‘prior approval’ is
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concerned, it would be pertinent also to take note of the amendment
brought by the State by the Orissa Act No.13 of 1994, requiring ‘prior
permission’ for establishment of educational institutions, since the State
wanted to stop the mushroom growth of the educational institutions.
Obviously, Orissa Act No.13 of 1994 was not available for consideration
in the case of Majhipada M.E.School (supra) which was decided on
21.02.1992. We are of the view that the learned Single Judge failed to
consider the legal requirements ‘prior to creation of the post’. Whenever
an additional section teacher post is required, 1974 Rules itself required
‘prior sanction of the post’ itself whereafter only, consideration for filling
up the post would arise. In the present case admittedly the institution
had never sought for any approval or creation of any Additional post and
consequently, it had no right to fill up the said post and that too by
appointing the respondent without prior approval and whose name does
not find place in the Select list prepared by the Selection Board.
13. What is most important to note here that the respondent was
appointed in the year 1992 as an Additional Section teacher much after
the school in question had already come to the fold of Grant-in-aid and
therefore, the institution was receiving aid prior to the date of
appointment of the respondent. Admittedly, therefore, 1974 Rules would
apply to the respondent. In the present case, it is the admitted case of the
parties, that no approval either for “creation of the post” or for
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“appointment of Additional teacher” was ever sought for nor approved.
Rule-5(8) clearly mandates that all appointments in aided institutions
shall be made from the list provided by the Selection Board. The
Managing Committee could make temporary appointment for a maximum
period of six months but that too, after approval of the Inspector of
Schools. In the present case, no such approval was granted and
subsequent to the disposal of the earlier writ application i.e. OJC No.7213
of 1997 on 14.7.1997, the Inspector of Schools came to reject the
representation of the respondent.
Therefore, while the facts of the present case is clearly
distinct from the facts dealt with in Majhipada M.E.School’s case, we are
of the view that the learned Single Judge erred in misconstruing the
judgment of this Court in the aforesaid case by holding that post facto
approval would be obtained as a matter of right. We are further of the
view that the learned Single Judge also erred in directing the ‘creation of
a post’, since the competency for creation of a post lies only with the
authority vested with such authority under the Act and such a direction
in the absence of any application being made by the institution for
creation of the post was clearly opposed the stipulation contained in the
1974 Rules.
14. Considering the circumstances noted herein above and the
views expressed by us, we allow the writ appeal and set aside the
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judgment passed by the learned Single Judge. But keeping in view the
judgment passed by this Court in the case of Majhipada M.E. School
(supra) and in particular, the principles laid down in paragraph-14
thereof, we are of the view that the appointing authority had the authority
either approve or reject approval of the appointment of the respondent
and since the appointing authority refused to accord approval by the
order dated 31.12.1997 under Annexure-2, the same may only operate
prospectively and, therefore, while allowing the writ appeal, we direct
that since the institution in question, utilized the services of the
respondent, the respondent shall be entitled to grant-in-aid till the date of
refusal to accord approval i.e. 31.12.1997.
With the aforesaid direction, the writ appeal is allowed.
…………………….
I.Mahanty, J.
…………………….
V.Gopala Gowda, C.J.
ORISSA HIGH COURT; CUTTACK September , 2010/ KCP.
