B K MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) WITH effect from 1-1-1948 a number of princely States which were situated within the territories of the present State of Orissa were merged with the Province of Orissa as it then existed. On such merger the High Schools within the said princely States also came under the jurisdiction of the Province of Orissa. The said High Schools belonged to two categories - namely 'A' type schools which were full-fledged High Schools which were actually sending candidates for the matriculation examination and 'B' type schools which were incomplete schools not sending candidates for the matriculation examination. On the said High Schools being taken over by the Province of Orissa, the teachers serving in the said High Schools came under the control of the Government of Orissa. It then became necessary to make an order to regulate the services of the said teachers. The Government of Orissa in the Education Department issued a letter dt. 5-1-1949 to the Director of Public Instruction on the subject. The relevant portion thereof is extracted below :

(2.) THE appellant was appointed as an Assistant Teacher on a pay of Rs. 70.00 per month in the pay scale of Rs. 70-140 plus admissible dearness allowance in one of the 'B' type High Schools by the Inspector of Schools on 15-6-1953 after the commencement of the Constitution of India. He continued to work as an Assistant Teacher in one or the other of the 'B' type High Schools to which he was transferred until Aug. 1, 1964 when the State Government published a rationalisation scheme for integrating the services of the teachers in different types of High Schools in the State of Orissa, namely, Zilla Schools, 'A' type Government High Schools, 'B' type High Schools, ex-District Board High Schools and ex-Anchal High Schools hereinafter collectively referred to as integrated High Schools. THE relevant part of the scheme reads thus :- "No.18027-E Government of Orissa, Education Department Resolution 1st Aug., 1964

(3.) IT is no doubt true that the 'B' type High Schools were formerly in the princely States and that on the merger of the States the then Government of the Province of Orissa passed an order on 5-1-1949 stating that the 'B' type High Schools would be governed and managed by the Inspector of Schools on behalf of the Government and the Headmasters would be the correspondents of 'B' type Government managed High Schools. IT is also true that till the commencement of the Constitution the position of 'B' type High Schools and the teachers working in them were being regulated in accordance with the terms contained in the order dated 5-1-1949. But on the commencement of the Constitution all the territories which immediately before the commencement of the Constitution were either comprised in the Province of Orissa or were being administered as if they formed part of that Province became and constituted the State of Orissa (vide entry No. 10 in the First Schedule to the Constitution.) The State Government was under an obligation to discharge its executive functions with respect to education by virtue of entry 11 of the Seventh Schedule to the Constitution as it then existed in respect of all the schools including 'B' type schools. A High School which once belonged to the princely States became a Government High School with effect from the commencement of the Constitution and it could not be anything else. The Inspector of Schools could no longer function as the managing agent on behalf of the State Government and the 'B' type High School could no longer be a 'Government managed High School'. The teachers working therein became teachers holding posts under the Government since there was no other authority which owned the 'B' type High Schools after Jan., 26, 1950 because there were no territories within the State of Orissa which could be considered as territories administered by the Government as if they formed a part of the State which was the case until Jan., 26, 1950. Though the princely States were subject to the paramountcy of the British Crown, they were considered to be foreign States by the British Indian Provinces. Any action taken in respect of them or their subjects by the British Indian Provinces was an act of State but its effect could not be extended beyond 26/01/1950 because after that date there was no longer any foreign Government. The princely States had gone out of existence. IT is well settled that the doctrine of an 'act of State' cannot be pleaded by a State as a defence against its own citizens. An 'act of State' is an act done in relation to a foreigner by the sovereign power of a country or its agent either previously authorised or subsequently ratified. Such an act cannot be questioned or made the subject of legal proceedings in any Court of law. But such a situation would not arise between the State Government and a citizen like the appellant who joined service after the commencement of the Constitution.