BIPRESWAR SAHU Vs. CHAIRMAN CUTTACK

JUDGEMENT

(1.) PETITIONER , a trained science graduate, was appointed as an Assistant Teacher in I. A. C. T. scale in the Municipal City High School Rajabagicha, on 17.9.1959. The letter of appointment has been annexed as Annexure -1 to the writ petition. In this writ petition he challenges the promotion of opposite party No. 4 to the post, of a trained science graduate teacher and further challenges the promotion of opposite party No. 5 to a post in trained graduate scale as per Annexure -10 to the writ petition. Petitioner has also prayed to quash the appointment of opposite party No. 5 on 19.9.1975 as being contrary to the Rules. 'The petitioner further prays for a direction to opposite party No. 2 to promote the petitioner to a trained graduate scale with effect from June, 1972.

(2.) THE case of the petitioner is that though he was a trained science gradute, yet he was appointed temporarily as an assistant teacher in I. A. C. T. scale in the Municipal City High School, Rajabagicha, as per Annexure -1. Under the Cuttack Municipality, there are several secondary schools and the teaching staff of all the schools form one cadre and the posts are inter transferable. The petitioner came to know that a trained science graduate teacher's post was lying vacant in the Municipal Girl's High School at Thoriasahi and since he was duly qualified, he filed a representation on 4.1.1970 for being promoted to the said post. At that point of time opposite party No - 4 who was merely an Intermediate in Science was discharging the job of a science teacher in Thoriasahi Girls' High School being absorbed in a Matric C. T. post. Without considering the representation of the petitioner, he was transferred to the Municipal Proposed High School at Mansinghpatna as a science teacher in the same I. A. C. T. scale on 5.10.1972. The order of transfer has been annexed as Annexure -5 to the writ petition. On 2.1.1973, as per Annexure -6 under orders of the Executive Officer, Cuttack Municipality, opposite party No. 4 was transferred to the Municipal City High School against a post in I. A. C. T. scale. On 12.9.1973, the Municipal Council promoted opposite party No. 4 to the trained science graduate post in the Municipal Girls' High School, Troriasahi, as opposite party No. 4 had by then acquired the qualification of a trained graduate. On 29.3.1974, the petitioner represented against the aforesaid appointment of opposite party No. 4, but did not receive any reply. The petitioner also made further representations on 26.4.1974 and 27.6.1974 but the said representations did not receive any attention of the employer, the Cuttack Municipality, and hence the petitioner was compelled to take recourse to the filing of the present writ application. So far as opposite party No. 5 is concerned, the petitioner's case is that his initial appointment on 19.9.1975 is bad in law being in contravention of Rule 408 of the Orissa Municipal Rules as he was admittedly more than 28 years of age. His further case is that opposite party No. 5 being junior to him, he should not have been given the trained graduate scale on 28.3.1977 retrospectively with effect from 19.9.1975 although the petitioner was promoted to the post of a trained science graduate on 2.8.1976. According to the petitioner, the order giving opposite party No. 5 the trained graduate scale as per Annexure -10 is one of promotion and, therefore, Rule 426 of the Orissa Municipal Rules should have been strictly complied with and the petitioner should have been promoted since he is admittedly senior to opposite party No. 5. The petitioner also made a representation against the said promotion of opposite party No. 5 and ultimately as per Annexure -13, the State Government, cancelled the selection held on 18.9.1975 and, therefore, the selection of opposite party No. 5 must be held to be bad in law.

(3.) SO far as opposite party No. 5 is concerned, it was stated in the counter affidavit that he was never appointed to a post in I.A.C.T. scale. The said opposite party No. 5 was appointed as Headmaster, but his scale of pay had not been fixed at the time of appointment. Subsequently after receiving clarification from the Inspector of Schools, his scale of pay was fixed in the trained graduate scale as per Annexure -10. Thus it was not a case of promotion, but a case of initial recruitment to the post of Headmaster in trained graduate scale and consequently opposite party No. 5 could not be declared junior to the petitioner, as contended in the writ petition. So far as violation of Rule 403 of the Orissa Municipal Rules is concerned, it was averred that the Municipal council itself while requesting the Employment Exchange to send names indicated that candidates whose age exceeded 28 years might also be sponsored since the municipality was in search of an experienced person had accordingly names of candidates whose age had exceeded 28 years, which included the name of opposite party No. 5, had been sponsored by the Employment Exchange. The said appointment of opposite party No. 5, it was contended, could not be challenged after lapse of so many years. So far as Annexure - 13 is concerned, the stand of the opposite parties is that the order of cancellation under Annexure -13 relates to the selection of Headmaster on the basis of promotion and the said order does not in any way affect the selection of a direct recruit like opposite party No. 5 and, therefore, the decision of the selection committee selecting opposite party No. 5 remained valid notwithstanding the order of the State Government in Annexure -13.