Prahallad Panda vs State of Orissa and Others

A.S. Naidu, J.—The Petitioner seeks to assail the Judgment passed by the State Education Tribunal, Orissa dated 4.11.1997 in Appeal No. 3 of 1997 (Annexure-6), in this Writ Petition.

The Petitioner was initially appointed by the Managing Committee of Swapneswar High School, Odiso in the district of Jajpur as Section Teacher on 10.11.1982. In the year 1988 a post of Assistant Teacher fell vacant due to resignation of one of the Teachers. Consequently, the Petitioner was adjusted against the said regular post, which was within the standard staffing pattern of the school. The decision of the Managing Committee dated 26.6.1988 adjusting the Petitioner in the said post was communicated on 11.7.1988 to the Director, Secondary Education. While in service, the Petitioner completed his B.Ed. training in the year 1990. In the year 1991 the Managing Committee of the School was reconstituted & number of disputes cropped up assailing the reconstitution before this Court, i.e., OJC No. 91 of 1991 & other writ applications. The Petitioner, it is submitted, unfortunately became the victim of the inter se fight between the two powerful groups & was prevented from discharging his duties. Being aggrieved by the said action, the Petitioner filed an appeal before the Director, Secondary Education & as the appeal was not disposed of in time, he approached this Court in OJC No. 7550 of 1994 inter alia praying to direct the Director, Secondary Education to decide the appeal preferred by the Petitioner assailing the inaction of the Managing Committee. The said writ application was disposed of on 19th December,. 1994 directing the Appellate authority, i.e., Director, Secondary Education, to dispose of the appeal filed by the Petitioner within a period of 3 months.

After hearing the parties & after perusing all the documents, the Director, Secondary Education disposed of the appeal & held that the Petitioner was working in the school both as an untrained Science Graduate as well as Trained Science (CBZ) graduate prior to the time when the school came within the fold of grant-in-aid. Consequently, the appeal was allowed & the order of termination was set aside & the Petitioner was directed to be reinstated prospectively in service without any arrear financial benefits. In pursuance of the order passed by the Director, the Petitioner joined in his post on 24.1.1997 His joining report was duly accepted & the services of the Petitioner were approved by the Inspector of Schools by his letter dated 1.2.1997 (Annexure-4).

While the matter stood thus, the Petitioner came to know that the order passed by the Director was assailed before the State Education Tribunal by Opp. Party No. 6 in Appeal No. 3 of 1997 & the Tribunal was pleased to stay operation of the order of the Director. On coming to know about the said fact, the Petitioner appeared before the Tribunal & raised a preliminary objection, with regard to maintainability of the said case. The Tribunal, however, without deciding the question of maintainability, disposed of the appeal & remitted the dispute to the Director, Secondary Education for de novo disposal after giving reasonable opportunity to Opp. Party No. 6 (who was Appellant before the Tribunal) to put-forth his grievances. The said order, as stated earlier, is assailed before this Court mainly on the ground that the appeal filed by Opp. Party No. 6 u/s 10-A of the Orissa Education Act, 1969 was not maintainable & as such, the Tribunal acted illegally & with material irregularity in entertaining & disposing of the same on merits by remitting the dispute to the Director, Secondary Education for de novo disposal.

After receiving notice, Opp. Party No. 6 has entered appearance. In course of hearing, Mr. A.K. Mishra, Learned Sr. Advocate appearing for Opp. Party No. 6, forcefully submitted that the appeal filed by Opp. Party No. 6 was maintainable u/s 10-A of the Orissa Education Act, hereinafter to be referred to as "the Act". According to Mr. Mishra, Opp. Party No. 6 was appointed as a teacher in the School, he was discharging his duties but then without impleading him, the Petitioner had preferred the appeal before the Director, Secondary Education & the Director without realizing the correct facts, allowed the appeal, consequently, the services of Opp. Party No. 6 were terminated. Mr. Mishra further submits that as the services of Opp. Party No. 6 were terminated without obtaining prior approval of the Inspector of Schools, the same was not just & proper & the controversy as to whether such termination is valid or not can be adjudicated u/s 10-A of the Act. For the sake of brevity, Section 10-A of the Act is quoted hereinbelow:

Section 10-A- Service of teachers of aided institutions not to be terminated without approval:

(1) The services of a teacher (& other members of the Staff) of an aided Educational Institution shall not be terminated without obtaining the prior approval in writing of the

(a) (Director) in the case of teacher (& other members of the Staff) of a College.

(b) Circle Inspector of Schools having jurisdiction, in the case of a teacher (& other members of the Staff) or a School.

(2) Every order passed by the (Director) or Circle Inspector as the case may be, either according approval or refusing to accord approval under Sub-section (1) shall be communicated to the, parties concerned within three months of the reference.

(3) Any person aggrieved by an order passed under Sub-section (1) may prefer an appeal to the Tribunal within one month from the date of receipt of the order.

Heard Learned Counsel for the Petitioner & Learned Counsel for Opp. Party No. 6 & Learned Counsel for the State diligently. Perused the documents annexed to the pleadings meticulously.

Fact remains, Swapneswar High School was established in the year 1982 & the same acquired the status of an aided educational institution in the year 1994. The services of the Petitioner were terminated in the year 1992, i.e., prior to the date when the school became aided. It is well settled that not permitting any employee to discharge his duties in a school amounts to deemed termination of service. In consonance with the circular of the State Government, such employee has a right to prefer an appeal before the Director. That apart, this Court in the earlier writ application also called upon the Director to dispose of the appeal on merits. On the date when the appeal was filed, Opp. Party No. 6 was not in the picture. That apart, the Petitioner had no cause of action against Opp. Party No. 6 The appeal as stated earlier was allowed & the Petitioner was reinstated in his previous service, consequently, Opp. Party No. 6, who was appointed against the said post had to quit.

So far as Opp. Party No. 6 is concerned, according to Mr. Mishra, his services were terminated without obtaining prior permission of the Inspector, & as such, he had a right to file an appeal before the Tribunal. The said submission cannot be accepted on two grounds.

Firstly, in the year 1997 when the Opp. Party No. 6 filed O.E. Appeal No. 3 of 1997, he was not terminated from service. For better understanding, the prayer made in the memorandum of appeal is quoted hereinbelow:

Under the facts & circumstances the Appellant most humbly prays that the Hon''ble Tribunal may be pleased to call for the records from the O/o. the O.P. No. 1 & also call upon the 0. P. to submit their show cause reply & after hearing the Counsel for the parties be pleased to direct the O.Ps. not to terminate the services of the Appellant & further be pleased to direct the O.Ps. more particularly O.P. Nos. 1,2,3 & 5 not to allow O.P No. 4 to Join the post of Science Teacher (CBZ).

Thus, the Opp. Party No. 6 candidly admits that on the date when he filed the appeal, he was not terminated. Therefore, the appeal filed u/s 10-A of the Act being pre-matured was not maintainable.

Even otherwise, according to Section 10-A, no employee can be terminated without obtaining prior permission of the Inspector of Schools. The said clause will not be ipso facto applicable to the case in hand inasmuch as it appears, the Opp. Party No. 6 was appointed in the vacancy, which was created due to termination of the Petitioner. The order of termination of the Petitioner was assailed by him before the Director, Secondary Education The said appeal was allowed & the Director called upon the management to reinstate him. Consequently, Opp. Party No. 6, who was holding the post has to give the way & rightly his services were terminated. Such termination will not attract the provisions of Section 10-A.

Be that as it may, fact remains, the Petitioner is continuing in service right from 1997 whereas Opp. Party No. 6 is out of service from the said date. The appointment of the Petitioner has been approved by the authorities & he is enjoying all the benefits.

In view of the aforesaid facts & circumstances, we find that the Learned Education Tribunal acted illegally & with material irregularity in entertaining the appeal filed by Opp. Party No. 6 against a threatened termination. In fact, the said appeal was a premature one & the Tribunal acted illegally in disposing of the appeal on merits. Consequently, the order passed by the Tribunal vide Annexure-6 cannot be sustained & is set aside. The writ application is allowed.

However, before parting with the case, we feel that ends of justice & equity will be better served, if we direct the Inspector of Schools to consider if Opp. Party No. 6 can be accommodated in some other school against any available vacancy.

B.N. Mahapatra, J.

I agree.