Pratap Chandra Swain vs State Of Orissa & Others

Sashikanta Mishra, J.

The petitioner was appointed as 4th Peon by the Managing Committee of Haripur High School on 13.04.1991. His appointment was approved by the Inspector of Schools, Cuttack Circle vide order dated 23.08.1997 and he was allowed to draw salary in the scale of pay of Rs.750-940/-against the post of Sweeper-cum-Watchman with effect from the date the School came into the grant-in-aid fold i.e., 01.06.1994 pending allowing of Duftary Scale of Pay in favour of one of the four Class-IV employees of the School on the basis of suitability with due regard to seniority. It was however stipulated that the payment of arrear salary would be subject to provision of funds by the Government. By Resolution dated 25.07.2009, the Managing Committee of the School resolved to appoint one Prasanna Kumar Das, who was the senior-most Class-IV employee (peon) as Duftary. Such Resolution was approved provisionally by the Inspector of School, Cuttack vide Office Order dated 04.09.2009 and accordingly, the adjustment of the petitioner in the consequential vacancy of Class-IV post was also approved, inter alia, subject to condition that such adjustment shall be prospective in nature and the petitioner will be entitled to salary (GIA) only after he assumes duty in the said post.

Being aggrieved, the petitioner approached this Court in W.P.(C) No.17769 of 2011, which was disposed of vide order dated 15.07.2011 allowing the petitioner to move the concerned authority by submitting a representation. The petitioner submitted a representation addressed to the Inspector of Schools, Cuttack Circle, which came to be disposed of by order dated 17.11.2011, copy enclosed as Annexure-4, wherein the claim of the petitioner for payment of arrear salary prior to 01.06.1998 was rejected by holding that he is not entitled to the same. Being aggrieved by rejection of his claim, the petitioner has approached this Court seeking the following relief:

“Under the above circumstances, it is therefore humbly prayed that this Hon’ble Court be graciously pleased to quash the stipulation made in Annexure-3 and 4 with regard to payment of salary to the petitioner and direct the opp.parties to pay the arrear salaries of the petitioner from 1.6.1994 to 24.7.2009 with all benefits excluding the payment he has received for those 3 months, i.e., March to May, 1998 within the stipulated period.

And/or pass any other appropriate writ/writs, order/orders and direction/directions in the fitness of the case;

And for this act of kindness as in duty bound the petitioner shall ever pray.”

Heard Mr. S.K. Das, learned counsel for the petitioner and Mr. A.R.Dash, learned Additional Government Advocate for the State.

Mr.   Das   would   argue   that   the   petitioner’s appointment as 4th peon having already been approved by the Inspector of Schools with effect from 01.06.1994, he is entitled to arrear salary as admissible with effect from the said date. The Government cannot take a contrary view subsequently as the petitioner had already rendered service in the approved post since 01.06.1994. Mr. Das further argues that as per the prevailing yardstick, the roll strength of the School justified four Class-IV employees, one of whom was to be promoted as Duftary. It was for the Management to grant promotion, which it did not. The petitioner cannot be blamed for the delay caused by the Management in this regard more so as his appointment as per the yardstick was duly approved by the competent authority.

Mr. A.R. Dash, referring to the counter affidavit filed by the District Education Officer (opposite party No.3) would argue that the appointment of the petitioner by the Managing Committee in the 4th post of Peon was not permissible as per yardstick of the Government. The prevailing yardstick permitted such appointment only if one of the three existing peons is promoted as Duftary. The approval order dated 23. 08.1997 was issued by the Inspector of Schools without approval of the Director, Secondary Education and therefore, has no sanctity. Mr. Dash further relies upon the judgment of the Supreme Court in the case of State of Odisha and others vs. Rajendra Kumar Das and another  2004(I) OLR(SC) 517, wherein it was held that 4th peon could be adjusted only against the vacancies arising out of promotion of one of the Class-IV employees as Duftary. In the instant case, the petitioner was appointed straightaway against the so-called 4th post and not against any vacancy created due to promotion of one of the Class-IV employees to the post of Duftary. Therefore, he cannot lay a valid claim for grant-in-aid prior to 25.07.2009, on which date he was adjusted against the vacancy created consequent upon promotion of one Prasanna Kumar Das to the post of Duftary.

In order to appreciate the rival submissions it would be apposite to refer to the yardstick circular in question, i.e. Government of Odisha Education and Y.S. Deptt. No. 28465 EYS dated 08.07.1981, wherein the standard staff for non-government Secondary Schools was fixed by the Government. The Relevant portion of such circular is quoted herein below:

"From

Shri N. P. Parija, I.A.S.,

Deputy Secretary to Govt.

To

The Director of Public Instruction (s), Orissa

Sub : Fixation of standard staff for the non-Government Secondary Schools.

Sir,

I am directed to say that the question of fixation of standard staff for the Non-Government Secondary Schools has been felt necessary by the Government due to introduction of the revised syllabus under 10 years schools pattern. After careful consideration of the various aspects, Government have now been pleased to decide that the standard staff both teaching and non-teaching for different categories of non-Government Secondary Schools shall be as follows :

(A) For the Schools having no additional sections :

Category of staff 3 Class                  5 Class                  7 Class

xx                            xx                            xx                            xx

Peons

(i) Office Peon                      1                              1                              1

(ii) Science Attendant         1                              1                              1

(iii) Night Watcher-           1                              1                              1

(C) Additional Post of Clerks and Peons :

(i)            xx                            xx                           xx                            xx

(ii) Where the roll strength of the School exceeds 100 one post of Daftary is admissible.

(iii)         xx                            xx                            xx                            xx"

It is not disputed that the roll strength of the School exceeded 100 as on the date of approval of appointment of the petitioner, i.e. 23.08.1997 by the Inspector of Schools. The School was therefore, entitled to three peons and one Duftary. Duftary being a promotional post is to be filled up by promoting one of the three existing peons. It follows that until and unless one of the three peons is promoted as Duftary there would not be place for a 4th peon. The above view was also taken by the Supreme Court in the case of Rajendra Kumar Das (Supra) wherein it was observed as follows:

“It is to be noted that post of "Daftary" carries higher scale of pay and is a promotional post for class IV employees. That being the position, the High Court was not justified in directing approval of the writ petitioners' services as "fourth peon". But one significant aspect cannot be lost sight of. If a school was entitled to have a "Daftary", certainly the appointment was to be made by promoting one of the three persons i.e. Office Peon, Office Attendant and Night Watcher-cum- Sweeper, there being no other class IV post in the institution. It is for the Managing Committee of the institution to decide who is to be promoted and thereafter seek approval of the concerned authorities. That way the claims of the writ petitioners could have been considered by the authorities, on being appropriately moved by the management. It is undisputed that the writ petitioners were appointed by the managing committees,” may be under a misreading of the relevant government orders.”

The circular does not envisage any provisional appointment of the 4th peon keeping in view the possible promotion of one of the three employees as Duftary in future. To reiterate, the appointment of 4th peon is contingent upon actual promotion of one of the three existing peons to the post of Duftary as such appointment would be against the vacancy created as a consequence. This Court finds that as on 23.08.1997 no person had been appointed as Duftary. The yardstick circular does not envisage appointment of any 4th peon. Therefore, the appointment of the petitioner against the so called 4th post cannot be treated as valid. There is no dispute that the Managing Committee in its Resolution dated 25.07.2009 resolved to promote the senior most Peon (Prasanna Kumar Das) to the post of Duftary and to adjust the petitioner in the vacancy so created. This being in consonance with the yardstick circular and the principle laid down in Rajendra Kumar Das (supra), was approved by the Inspector of Schools as per office order dated 04.09.2009. Since this Court has held that the appointment of the petitioner prior to 25.07.2009 was not in consonance with the yardstick circular, he cannot lay a valid claim for grant-in-aid prior to such date. The order of the Inspector dated 23.08.1997 purportedly approving the appointment of the petitioner as 4th peon has no force of law and therefore, cannot enure to the benefit of the petitioner. Obviously, the petitioner cannot take advantage of a wrong committed by the authority on the principle that there can be no estoppel against law/statute.

From the foregoing narration it is evident that the petitioner’s claim for arrear salary/GIA from 01.06.1994 to 24.07.2009 is without any legal basis and hence, unsustainable in the eye of law.

Resultantly, the writ application being devoid of merit is therefore, dismissed. There shall be no order as to costs.

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