NAYANA KUMARI MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner has come before this Court claiming seniority over the opposite party Nos. 4 and 5 as Trained Graduate 'teacher, as also assailing the promotion of the opposite party No. 4 as the Headmaster vide Annexure-14. It is her case that though she was appointed later than the, opposite party Nos. 4 and 5 as an Assistant Teacher yet she became a Trained Graduate earlier than them and hence became entitled to Trained Graduate scale with effect from 28-8-1974, i.e. the date on which she acquired B.Ed. qualification. The admitted facts are that the petitioner was appointed on 26-7-1971 against a Trained Matric post and by that time she had appeared in the B.Sc. examination but her results had not been published. The apposite party No. 4 who was a B.Sc., was appointed on 9-7-1969 as against a Trained Graduate post and the opposite party No. 5 was appointed on 14-7-1970 also against a Trained Graduate post when he was only an Arts. Graduate. The opposite party No. 4 was adjusted against the third Trained Graduate post for which the petitioner made representations on 27-11-1974 and 25-7-1975 claiming such adjustment for herself. While the presentation were not decided, a fourth Trained Graduate post was sanctioned on 28-1-1975 and the Managing Committee adjusted the petitioner against that post on 5-1-1976. In Annexure-5, a letter dated 7-9-1976 the Inspector of Schools asked the Managing Committee as to why the petitioner had not been adjusted against the third Trained Graduate post and directed in Annexure-7 to grant her the Trained Graduate scale with effect from 28-1-1975, i.e. the date on which the fourth Trained Gradute post had been sanctioned. The Joint Director of Public Instructions had also called for explanation in Annexure-B, his letter dated 22-8-78 as to why the petitioner had not been adjusted in the trained Graduate post with effect from 28-8-1974. On 23-7-1980 the Government decided and approved the petitioner's promotion against the third Trained Graduate post and the promotion of opposite party No. 4 to the fourth Trained Graduate post, both with effect from 21-7-1980 vide Annexure-12. But later, on 23-8-1985 an order was passed by the Government reversing the order in Annexure-12 and allowing the petitioner the Trained Graduate scale only from 3-7-1982. The order has been annexed to the writ petition as Annexure-13. It is the case of the petitioner that she was not afforded any opportunity to be heard before the order in Annexure-13 was passed and it is also contended that since she had acquired the B.Ed. qualification earlier, she was entitled to be granted Trained Graduate Scale with effect from 28-8-1974 or at least from 21-7-1980 when the order in Annexure-12 was passed.

(2.) Separate counter affidavit have been filed by the opposite party Nos. 4 and 5 in which, amongst other things, it has been pointed out that the decision of the Government in Annexure 13 was based upon an undertaking Annexure D/4 given by the petitioner on 13-5-1985 that she had no objection for her promotion as trained graduate teacher being effective from 3-7-1982 and the monetary benefits to flow out of such promotion. On the basis of the undertaking of the petitioner, it is urged that the present writ petition is not maintainable, as the order is based upon the undertaking.

(3.) Refuting the contention it is the submission of Mr. Dora, the learned counsel appearing for the petitioner, that the seniority of the petitioner and the promotion of the opposite party No. 4 superseding her claims is a question relating to her fundamental right and since a fundamental right cannot be waived or abandoned, and at any rate since Annexure D/4 does not indicate the petitioner to have abandoned her fundamental right, the undertaking is not stand in her way of prosecuting the cause of action. The undertaking, given by the petitioner may be usefully extracted :