SANTOSH KUMAR MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner in this writ application prays for a direction to validate his service as trained intermediate teacher from the date of his initial appointment and to grant all pecuniary benefits by treating the break periods as in service.

(2.) BRIEFLY stated, the petitioner's case is that he came to be appointed as Assistant Teacher in K. C. High School, Berhampur, on 21 -9 -1981 against a vacancy in the additional section (Class -VIII (B) ). The Inspector of Schools, Ganjam Circle, Berhampur (opp. party No. 3) approved the said appoinment. The petitioner continued till 20 -3 -1982 against the said post. The Managing Committee later allowed him to continue against the vacancy in additional section (VII -B) on ad hoc basis. The Managing Committee of the School appointed the petitioner on ed hoc basis from time to time in sppells of 89 days and those appointments were being approved by the Inspector of Schools. Although the petitioner was a B.A.B.Ed. at the time of his initial appointment in the school, he was only given the scale of pay of Matric C.T. While the matter stood thus, the Inspector of Schools in his office memo No. 17800 dated 17 -10 -1992 (Annexure -15) regularised the petitioner's services with effect from 21 -9 -1981 under the provisions of the Orissa Aided Educational Institutions' Appointment of Teachers Validation Act, 1989. In the said memo Annexure -15 the designation of the petitioner was mentioned as Trained Matric teacher. The further case of the petitioner is that the State Government in the order as communicated in letter No. 12386 dated 27 -4 -1995 (Arinexure -17) upgraded 309 posts of trained matric/trained intermediate teachers in different schools to the posts of Trained Graduate teachers with effect from 1 -6 -1983. One of such schools which got the benefit of upgradation of the post under Annexure -17 is K.C. High School, Berhampur and the petitioner is the incumbent of that upgraded post. in the said order (Anexure -17) the Government further stipulated that the pay of the teachers whose posts stood upgraded be fixed notionally with effect from 1 -6 -1983, but no arrear financial benefit would be given to them. According to the petitioner despite upgradation of his post to that of Trained Graduate teacher with effect from 1 -6 -1983, the Inspector of Schools in his office memo No. 3780 dated 16 -3 -1996 (Anneure -18) fixed his pay with effect from 28 -12 -1987.

(3.) LET us now consider the contentions of the petitioner in seriatim : Contention No. (i) It is not in dispute that the petitioner was being appointed with effect from 21 -9 -1981 on '89 days basis' with certain breaks and he has been continuing in service without any break since 28 -12 -1987. The Supreme Court in Rabinarayan Mohapatra v. State of Orissa : AIR 1991 SC 1286 ruled that appointment on '89 days basis' with break of one day or more which deprives a teacher of his salary for the period of summer vacation and other service benefits is wholly arbitrary and suffers from the vice of discrimination. In that case although the service of the concerned teacher was regularised under the Validation Act, 1989, he was denied his salary for summer vacation and other breaks. As a consequence of regularisation, the Court held that the concerned teacher wold be entitled to his salary including the salary for summer vacations and other breaks which must be taken as non est from the date of his regular appointment. In view of the law laid down by the Supreme Court in the case of Rabinarayan Mohapatra (supra), the State Government in the Department of School and Mass Education as per letter No. 15716/SME dated 26 -5 -1993 clarified the position as follows : 'It is clarified that the breaks of services between two spells of appointment in the last Institution end/or termination of services just before Summer Vacation and reinstatement just after Summer Vacation may be treated as non est. The appointment itself of such teachers being validated the first day of appointment of such teachers in the last institution maybe taken into account and from that day the services of such teachers may be regularised. Such teachers will be entitled to regular salaries during those period of break. They will also be entitled to annual increment, leave, seniority, pension, gratuity and other service benefits available to the teachers of aided educational institutions. The aforesaid being the position, we hold that the petitioner is entitled to salary for the break periods during the period from 21 -9 -1981 till 28 -12 -1987. The Inspector of Schools, opp. party No. 3, is directed to calculate the arrears on that count and pay the same to the petitioner within six months from the date of receipt of this order. We make it clear that the arrears will be drawn on the basis of the salary the petitioner was drawing during the relevant period. Contention No. (ii) The petitioner's claim that he should be treated as a Trarned Graduate teacher with effect from 1 -8 -1983 (i.e. the day from which his post in the school was upgraded to the post of Trarned Graduate teacher) is disputed by the opp. parties 1 to 3. Their objection is that the petitioner started his regular service with effect from 28 -12 -1987 and before that he was being appointed on '89 days basis' in spells with breaks and for this reason he cannot be taken to be a trained graduate teacher with effect from the day his post was upgraded. We have carefully considered the contention of the petitioner and the objection raised by the opp. parties 1 to 3 and are of the opinion that the ground of objection is wholly untenable. Admittedly, the petitioner's services have been regularised by the order of the Inspector of Schools with effect from 21 -9 -1981 under the Validation Act, 1989. It is also not in dispute that the post against which the petitioner was appointed stood upgraded by the State Government to that of Trained Graduate teacher with effect from 1 -6 -1983. The further admitted fact is that petitioner was B. A. B. Ed. by the time he was first appointed as Assistant Teacher on 21 -9 -1981. In view of the aforesaid facts, we declare that the petitioner is a Trained Graduate teacher with effect from 1 -6 -1983 and is entitled to all service benefits except the financial benefits as indicated in the Government letter No. 12386 dated 27 -4 -1995 (Annexure -17). The writ application is accordingly disposed of. No costs.