GOPAL CHANDRA MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order of the Deputy Director non -Government Schools, Bhubaneswar, dated 18 -9 -1989, annexed as Annexure -4 allowing opposite party No. 5 to draw the trained graduate scale against the fourth trained graduate post of teacher and the consequential order of the Inspector of Schools Bolangir Circle dated 3 -11 -1990 in favour of opp. party No. 5 allowing him to draw the trained graduate scale of pay with effect from 23.8 -1980 the date of his passing B. Ed. Examination, annexed as Annexure -5 are being assailed in this writ application by the petitioner, inter alia, on the ground that the petitioner being senior to opp. party No. 5 was entitled to be adjusted against fourth trained graduate post.

(2.) THE petitioner was appointed as an Assistant Teacher of Satyabadi Bidyapitha. an aided educational institution against a trained matric post on 1 -7 -1970. At that point of time he had passed the intermediate examination. When the petitioner was appointed as a teacher the Recruitment Rules, namely the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 had not come into force and the said Recruitment Rules came into force with effect from 1 -4 1975. The petitioner had gone on C. T. training in the year 1985 and against the vacant post, thus caused opp. party No. 5 was apdointed ad hoc basic in the leave vacancy on 18 -8 1975. The said opp. party No. 5 was appointed against a trained intermediate post on regular basis on 23 -8 -1975. The Government of Orissa created fourth post of trained graduate teacher in all the aided educational institutions with effect from 28 -1 -1975 and it was communicated to the Headmasters of all schools. So far as Satyabadi Bidyapjtha is concerned, the Inspector of Schools by letter dated 9 -1 -1976 called upon the Headmaster to submit proposal and recommendation, if any along with the resolution of the Managing Committee in respect of senior -most Assistant Teacher working against the 1. A.C. T. and Matri -C T posts for further action. It is to be noticed that the appointment of opp. party No. 5 against 1. A. C. T. Post on 23 -8 -1975 though had been made after the Recruitment Rules had come into fore but not following the procedure provided for such recruitment. Opp. party No 5 became a graduate in the year 1977 while the petitioner became a graduate in the year 1979 and both of them acquired B. Ed. degree on the same date that is 23 -8 -1980. As fourth trained graduate post was still lying vacant in the institution, the Managing Committee requested the inspector of Schools to decide as to who would be adjusted against fourth trained graduate post. The Deputy Director. non -Govern -merit School by his order dated 19 -9 -1989 having decided to fill up the post of fourth trained graduate by promoting opp. party no. 5 as per Annexure -4 and the Inspector of Schools having passed the consequential order on 3 -11 -1990 as per Annexure -5, the petitioner has approached this Court. Prior to filing of the writ application the petitioner had filed representations to the Managing Committee as well as to the Inspectorate but the Managing Committee replied that the post having already been filled up and there being no vacancy, question of considering the petitioner's case did not arise. So far as the representation of the petitioner to the Inspector of Schools is concerned no repty had been received by him and hence the present writ application.

(3.) MR . Swain appearing for the petitioner raises to following contentions in assailing the order of adjustment of opp. party No. 5 against the trained graduate post : (1) The petitioner having been continued against a trained matric post with effect from 1 -7 -1970 and opp. party No. 5 having joined the institution five years later on 23 -8 -1975 and both of them having acquired B. Ed. degree on the same date on 23 -8 -1980, the petitioner must be held to be senior to opp. party No. 5 and, therefore, has a right to be adjusted against the trained graduate post; (2) Appointment of opp. party No. 5 on 23 -8 -19 5 after the statutory Recruitment Rules had come into force not having been made in accordance with the Rules is an invalid appointment and, therefore, . the said appointment does not confer any right on opp. party No. 5; (3) The power to fill up a trained graduate post in an aided educational institution vests with the Managing Committee. The Managing Committee having not exercised that power and no resolution of the Managing Committee having been passed, the order of adjustment in favour of opp. party No. 5 made by the Inspector of Schools pursuant to the decision of the Deputy Director is illegal and without jurisdiction and the same cannot be sustained ; (4) In any view of the matter, non -consideration of the petitioner's case white deciding the question of filling up the post of fourth trained graduate teacher contravenes Art. 16 of the Constitution and the impugned order, therefore, is liable to be struck down.