KRISHNA CHANDRA KARNA Vs. STATE OF ORISSA

JUDGEMENT

(1.) What is the true meaning of the word 'employee' occurring in Rule 8 (2)(b) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter referred to as 'the 1974 Rules')? -this is the short question presented before us for determination. A Bench of this Court in Akshaya Kumar Das v. State of Orissa (OJC No. 3700 of 1987 disposed of on 12.11.1990) has taken the view that the word 'employee' in the aforesaid rules may out be confined to the teachers in case the promotion is contemplated to a post of teacher carrying higher scale of pay'. The ratio of Akshaya Kumar (supra) was followed in OJC No. 6717 of 1991 disposed of on 27 -3 -1992.Both the aforesaid two cases come to be cited when the present case came up for hearing before a Bench. As the literal interpretation given to the word 'employee' in Akshaya Kumar (supra) was questioned, the Bench referred the matter to a larger Bench. This is how it has not come up for hearing before this Full Bench.

(2.) FACTS : The petitioner is now serving as a clerk in Janata High School, Godabhaga. At the time of his appointment on 20 -3 -1984, his educational qualification was B. A. While working in the school as such, he appreared at the By Ed. Examination and passed the said examination in June, 1989. In July, 1989, when a post of section teacher (Trained Intermediate section teacher) fell vacant in the school, the petitioner made a representation (Annexure -4) to the Director, Secondary Education, Orissa, staking his claim for being promoted against the said vacant post on the ground that he being an employee of the institution and having the requisite qualification is eligible to be promoted under Rule 8(2)(b) of the 1974 Rules. As his representation remained unattended to in the Directorate, the petitioner has filed this writ petition praying for a direction to the opposite parties to promote and appoint him as a teacher in the existing vacancy in the school. Counter affidavit has been filed on behalf of the opposite parties contending, intar alia, that under Rule 8 (2)(b) of the 1974 Rules, promotion to a post carrying higher scale of pay is only available to the employees who are in the teaching line and the petitioner, who is a cleric, being the non -teaching staff of the school, is not entitled to be considered for promotion.

(3.) IT is an admitted position that the 1974 Rules do not deal with the manner of recruitment of members of non -teaching staff of an aided educational institution. As already indicated. Chapter -II deals exclusively with recruitment to fill up teaching posts. The entire scheme of the 1974 Rules would show that all appointments in the teaching staff have to be made through the Selection Board as provided in Rule 5. Rule 8 carves out exception in that on certain conthgencies procedure for filling up teaching posts through Selection Board can be avoided (or evaded?). Three such contingencies have been contemplated in Rule 8. the first being a case of filling up a teaching post by a person on deputation from the Government, the second, appointment on ad hoc basis for a period not exceeding three months, and the third, filling up a vacancy in a post carrying higher scale of pay by an 'employee' of the same institution The present is a case, according to the petitioner, which comes under the last category.