SUBHRANTA KUMAR MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in this writ application has prayed for quashing the order contained in Annexure 6 approving the appointment of the petitioner as In charge Headmaster, and has prayed for a direcrion to the opposite parties to approve petitioner's appointment as Headmaster with effect from 1 6 1994 and pay his salary in the scale prescribed for Headmaster according to rule 9 of the 1974 Recruitment Rules.

(2.) THE case of the petitioner is that Bhagabati High School was established in the year 1981 and the school was granted recognition of the educational authorities in December, 1984. The Board of Secondary Education granted permission to present the students of the said institution in the year 1985 and the first batch' of the school appeared in 1986 Board's Annual Examination. In the meantime the school having been granted aid, it has become an aided educational institution within the meaning of section 3(b) of the Orissa Education Act, 1969. The petitionet was appointed as an Assistant Teacher of the said school, consequent upon resignation of one Umesh Chandra Sahu, ex Headmaster of the school. The petitioner was then a Graduate and had appeared in the B. Ed. Examination, but the results had not been published. An appointment letter was issued to the petitioner on 7 9 1981 by the Secretary of the Managing Committee ofthe school and the petitioner joined the post on 10 9 1981. While the petitioner was continuing as such, the results of B, Ed. Examination were published in March, 1983 whereafter the petitioner was promoted to the post of Headmaster by the Managing Committee of the institution by its Resolution dated 11 11 1984. By the time the petitioner was promoted to the post of Headmaster, the school was an unrecognised and unaided one. The petitioner assumed the charge of the Headmaster of theschool with effect from 11 11 1984. After the institution became eligible to receive grant in aid, the Managing Committee was directed by the Inspector of Schools to submit the staff position for the purpose of approval. As per the direction of the Inspector of Schools, the Managing Committee placed staff position intimating therein that the petitioner had been appointed as Headmaster. But by the impugned order dated 7 6 1990, the Inspector of Schools approved the staff including the petitioner showing the petitioner as Headmastar in charge. The said order has been challenged before this Court.

(3.) BEFORE examining the case of the petitioner, it is necessary to refer to the judgment in Pritiranjan's case (supra) as well as the judgment of the Apex Court. The judgment in Pritiranjan's case upheld only a part of the judgment delivered in the case of Golak Chandra Mohanty's case 76(1993) C.L.T. 308 (F. B.) = (1993 (I) O. L R. 303). The judgment confirmed the earlier Full Bench decision of this Court only in respect of the following : For the purpose of grant of Headmaster's scale of pay seven years' teaching experience as a Trained. Graduate Teacher was necessary for an Assistant Teacher to be promoted to the post of Headmaster with the aid of rule 8 (2)(b) of the 1974 Rules in those cases where the appointments had been made on or after 29 4 1977, when the amended Regulation 17 (2)(i) of the Board's Regulations had come into force. This applies both to aided and unaided schools. The Apex Court while confirming the aforesaid judgment of this Court also held that if subsequent to 29 4 1977 any appointment has been made to the post of Headmaster, contrary to theaforesaid provisions of the Regulation of the Board, then the said appointment shall be invalid appointment and this would not confer any right on the appointee. With the aforesaid background of law laid down by this Court as well as the Apex Court, the applicability of the same to the facts of the present case is to be examined. The school in which the petitioner was working was an unaided and unrecognised one till 1985. As per Article 312 of the Education Code, the Headmaster to be appointed should have acquired training qualification. By the time the petitioner was promoted to the post of Headmaster on 11 11 1984 he was not only qualified to hold the post but also at that point of time the school had not received recognition either from the Director or from the Board. The school obtained recognition for class VIII on 10 12 1984 after the petitioner was promoted to the post of Headmaster. This Court in a decision reported in (1933) 1 A.T.T. (H.C.) 306; Kumari Sabitri Dash v. State of Orissa and others, held that the moment a school becomes an aided educational institution, its erswhile teachers who are covered by the staffing pattern would ipso facto become employees of the aided educational institution, but then, for good and sufficient reason, a particular teacher may not be so accepted. Shri Rath relying on the aforesaid decision submitted that since the petitioner was working as Headmaster of the institution when it came within the fold of grant in aid the status of the petitioner has to be taken as such. In reply to the argument advanced by the learned counsel for the State that there was no separate resolution by the Managing Committee of the institution appointing the petitioner as Headmaster after he completed seven years of teaching experience as a Trained Graduate Teacher, the petitioner has filed an affidavit. In the said affidavit it is stated that the Managing Committee of the institution vide resolution dated 22 5 1995 conferred the status of a regular Headmaster in favour of the petitioner with effect from 9 3 1990 as the petitioner had completed seven years teaching experience as a Trained Graduate Teacher by that dateand accordingly allowed Headmaster's scale of pay of Rs.1700 3200/ . In view of the submissions of the learned counsel appearing for both the parties, the following facts are clear :