SURESWAR MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioners before us are teachers in the employment of the Cuttack Municipality. Both of them were recruited as Assistant Teachers --petitioner No. 1 on 13-8-1962 and petitioner No. 2 on 4-8-1964. At the time of recruitment, both were Matriculates. Some Upper-Primary Schools within the municipal area of Cuttack were upgraded as Middle English Schools and came to be known as Panchayat Samiti M. E. Schools with effect from 1974. The U. P. School at Sutahat was one of them. The Inspector of Schools (opposite party No. 2) appointed opposite party No. 4 as a teacher by his order dated 23-101975 (Annexure-G/4) on temporary basis and she was posted in the Sutahat Panchayat Samiti M. E. School. Opposite Party No. 5 came on transfer under orders of opposite party No. 2 as Headmistress of the Practising Urdu Upgraded M. E. School run by the Municipality. Challenge in this application is to the transfer and posting of opposite parties 4 and 5, in Schools run by the Cuttack Municipality on the basis that petitioners are municipal employees and are in one cadre while opposite parties 4 and 5 are not municipal employees and cannot be members of the cadre and the said two teachers cannot be said as municipal employees and should not be allowed to prejudice the promotional prospects of the petitioners on the basis of their own seniority. It has been further claimed that the appointment of opposite parties 4 and 5 in Municipal Schools being an act without jurisdiction, they should be withdrawn from the schools run by the Municipality and the vacancies should be filled up by municipal teachers.

(2.) Four separate returns have been made to this Court to the rule nisi. Opposite parties 1 and 2 have filed a common counter while each of the remaining opposite parties have filed a separate counter. The Municipality through its Executive Officer has taken the stand that the up-gradation of the schools has been made under resolution dated 5-6-1978 published in the Orissa Gazette on July 28, 1978, The resolution incorporates a scheme that the upgraded schools should be run by the local bodies and thus the schools belong to the Municipality. The Orissa Municipal Act makes provision for appointment of municipal employees and that power is conferred on the authorities indicated in the statute and the rules made thereunder. In regard to municipal schools, the jurisdiction of the Inspector of Schools is very limited and, therefore, appointment and posting of teachers in municipal schools cannot be controlled by the Inspector. Municipal employees are subject to the disciplinary jurisdiction of the authorities under the Act and the Inspector, therefore, cannot interfere in the matter. The Municipality has produced along with its counter affidavit the correspondence in which the same stand had been taken while objecting to interference of the Inspector. Shortly stated, the stand of the Municipality supports the contention of the petitioners. The other three affidavits have adopted a common stand of supporting the action complained against by the petitioners.

(3.) There is no dispute that the up-gradation had been made on the Government orders and resolution of 5th June, 1978 (annexure-1) gave a complete shape to the matter. The relevant portion of the resolution may now be extracted:-