RABINARAYAN MOHAPATRA Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) THE Petitioner was appointed as a Hindi Teacher for a period of 89 days or till a candidate on being sponsored by the State Selection Board joined by an order dated 12 -7 -1982 arid thereafter such spells of appointment continued only with break at the commencement of the summer vacation till the school reopened after summer vacation, that is to say, the services stood terminated on the eve of the commencement of summer vacation of the year 1983 and again reappointment was made after the school reopened after the summer vacation and this process continued till 1986. After his services stood terminated on the eve of summer vacation of the year 1986 with effect from 25 -5 -1986 his further appointment by the Managing Committee was not approved by the educational authorities. The Inspector of Schools had given the last approval by his letter dated 3 -3 -1986, annexed as Annexure -6, so far as the Petitioner is concerned for a period of 89 days with effect from 23 -9 -1985. The Distinct Inspector of Schools, however, recommended the Petitioner's case for further continuance until a sponsored candidate is allotted in favour of the school by letter dated 9 -4 -1986, but the Inspector never sent any communication. The Managing Committee of the School passed a resolution on 6 -7 -1987, annexed as Annexure -8, requesting the Secretary to approach the educational authorities for approval of reappointment of the Petitioner and for payment of arrear salary. But as no further action was taken by the educational authorities, the Petitioner approached this Court. The Petitioner prays in the writ application that the Petitioner's appointment be regularised and Petitioner be treated as in continuous service from the date of relief on 25 -5 -1986 and such further direction be issued to do complete justice to the Petitioner.

(2.) ON behalf of the educational authorities, a counter affidavit has been filed wherein the stand taken is that the Director had issued instructions in May, 1986, not to appoint any Hindi Teacher after the School reopens on account of summer vacation and, therefore, no approval has been given to the Petitioner's continuance after 25 -5 -1986. It has further been indicated in the counter affidavit that the Director of Secondary Education has recommended the name of one Selection Board candidate against the vacancy in which the Petitioner was serving and, therefore, the question of permitting the Petitioner to continue in the post does not arise. It has been reiterated that since the Selection Board candidate has already been allotted, the Petitioner cannot claim for any further continuance in the post.

(3.) THE conditions of service of a teacher of an aided educational institution are governed by a set of Rules called the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational Institutions) Rules, 1974. In the said Rules appointment to a post of teacher can be made by the Managing Committee of a candidate allotted to the school under Sub -rule (2) of Rule -5 and thus a candidate who has not been included in the list made by the selection board cannot be appointed. The only exception that has been provided for in Sub -rule (8) of R.5 is that a managing committee can make an appointment to a vacancy 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 appointment may be made with prior approval of the Inspector. Further, under sub rule (9), such appointment beyond the period of six months can be extended by the managing committee with the prior approval of the Government but that would be also till receipt of the recommendation of the selection board. As the selection board was not regularly sitting and as the select list candidates were not available, the managing committee have been appointing teachers on short -term basis for different spells. It is of course true that in view of the observations of the Supreme Court in Rattanlal's case ( : A. I. R. 1987 S. C. 478) appointment of a teacher till the commencement of the summer vacation of an educational session and then terminating the service on the eve of the summer vacation and reappointing him again after the school reopens on account of summer vacation cannot but be deprecated and such an unhealthy practice should not be tolerated upon. But in view of the statutory rules regulating the terms and conditions of service and recruitment rule providing for a regular appointment only of a candidate from the select list, there is no manner of doubt that the Petitioner could not have been appointed on a regular basis as admittedly he had not been included in the select list nor has he been allotted to the school by the Director. The fact remains that there has been no further approval of the Petitioner's continuance after 23 -5 -1986 although Mr. Patnaik for the Petitioner asserts that the Petitioner is continuing in service pursuant to the order of the managing committee. The managing committee is no more in existence and the management may vests with the Inspector. There has been no assertion made by the Inspector notwithstanding our earlier order as to whether in fact the Petitioner is continuing as a teacher or not, but in the meantime, as has been averred in the counter affidavit of opposite party No. 3, a select list candidate has been allotted to the school in question. In paragraph -12 of the counter affidavit, it has been averred: