ARABINDA PANDA Vs. STATE OF ORISSA

JUDGEMENT

(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.) 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.