The Managing Committee, Mohavir Ucha Vidyapitha vs Baishnab Charan Nayak and Others

R.N. Misra, J.—The Managing Committee of a High English School - an aided educational institution as defined by the Orissa Education Act - through its Secretary is the Petitioner. The appellate order of the State Education Tribunal is assailed and the Petitioner has asked for quashing the same by issue of a writ of certiorari.

On 1.2.1973, the opposite party No. 1 was appointed as a teacher up to 30th of June of that year and the appointment was approved by the Managing Committee of the School by Resolution dated 3-3-1973. In the Resolution it was specifically indicated that a trained graduate teacher was not available and, therefore, opposite party No. 1 though not trained had been given the appointment on temporary basis. Opposite party No. 1''s appointment was extended in two instalments - first upto 31-5-1974 and again upto 31-5-1975. The second extension as would appear from the Resolution of the Committee under Annexure-3 was under instruction of the Inspector of Schools during inspection. On 1.5.1975, the Secretary of the Managing Committee informed opposite party No. 1 that his services would no longer be required with effect from 1st of June, 1975. On 14-5-1975, the Inspector informed the Managing Committee that the notice of termination was illegal and, therefore, the same should be withdrawn and justification for termination if any should be communicated to the Inspector. On 16-5-1975, the Secretary requested the Inspector to accord approval of termination of the service with justifying grounds. On 1-8-75, the Inspector communicated his approval with reference to the request dated 16-5-1975 and on 3-8-1975, the fact that the termination was approved by the Inspector was duly communicated to opposite party No. 1. The teacher thereupon carried an appeal to the Tribunal. By the impugned order dated 29-5-1976, the Tribunal has vacated the termination and had directed the employment to continue. This appellate order is assailed now.

3 Opposite party No. 1 has filed a return to the rule nisi and had justified the appellate order. He has further indicated that on 10-8-1976, the Inspector required the Management to permit opposite party No. 1 to join the Service, but since this Court did not allow stay of operation of the appellate order and the Managing Committee refused to allow the opposite party No. 1 to resume work, it has been superseded in July, 1978. It is, however, conceded that the order of supersession had -in the meantime been stayed in an appeal filed by the Management.

Opposite party No. 1 was initially appointed by order under Annexure-1 for a term explaining on 30th of June, 1973 and the period of appointment was extended twice. There is no dispute that in the approved pattern of the teaching staff there is no room for an untrained teacher but to meet exigencies of circumstances untrained teachers are casually appointed. According to the Management, opposite party No. 1''s appointment was against the a post of a trained graduate and because a trained graduate was not available opposite party no, 1 had been appointed on temporary basis for fixed periods so that he could be substituted at any reasonable time; on the availability of a trained graduate. Section 10-A of the Orissa Education Act, as far as relevant, provides:

(1) The services of a teacher of an aided educational institution shall not be terminated without obtaining the prior approval in writing of the

(a) ...

(b) Circle Inspector of Schools having jurisdiction in the case of a teacher of a school.

....

In two decisions of this Court, it has already been held that where appointment is for a specified temporary period and service terminates with the lapse of the time, it is not a case of termination of service so as to attract the relevant provision of the Education Act. First is the case of Sarit Kumar Naik v. The Managing Committee and Ors. ILR 1977 Cutt 525 where it has been held:

"...The service of the Petitioner was for a specified temporary period which expired after the academic year 1973-74. After abolition of the post his services automatically terminated. Since the Petitioner had no right in law to the extension of his term of service, there can be no question of obtaining approval of the Director of Public Instruction (Schools) for termination of his services....

The second is the case of Managing Committee of Bhagabati Middle English School v. Baikunthanath Mohapatra and Ors. ILR 1977 Cutt 529, where is was stated:

...We have already extracted the terms of sanction by the District Inspector of the post. It is clear from that order that the post came into existence with effect from the 25th September, 1973 and was intended to continue upto the 25th May, 1974. Creation of an additional post beyond the approved pattern involves financial liability and since the institution is financially aided to the tune of two-thirds of its expenses, strict control is contemplated. In the absence of a definition of the word termination in the statute, Petitioner had contended that the word must be given its common parlance meaning and is, therefore, a term of wide amplitude. Even if the appointment was for a fixed term and with the lapse of time indicated in the order of appointment, the service is to lapse, Petitioner''s Counsel contends, it would still amount to a case of termination. On the other hand, Counsel for the Managing Committee as also learned Additional Government Advocate have taken the stand that termination is a positive act and where the appointment is for a fixed term and the event of closure of service is the outcome of lapse of time, the process is automatic. It is like the event of superannuation where no positive decision is necessary and the event flows out from the approach of the prescribed time limit....

Relying on these decisions, counsel for the Petitioner. Managing Committee has contended that the instant case was not one of termination of service. In fact, when appointment was given or extension was granted, it was stipulated that the appointment would terminate on a specified date and opposite -party No. 1 has been permitted to continue upto the specified date.

This Court in the case of Saroj Kumar Ghosh Vs. Chairman, Orissa State Electricity Board, , dealing with the words ''termination'' and ''superannuation'' stared:

Termination and superannuation cannot be equated. The diction any meanings of the two also do not indicate that there is any similarity in the two processes. The meaning of superannuation as in the dictionary is to cause to retire from service on a pension, to pension off, to become too old for a pension, to reach an age at which one retires from an office and the meaning of termination is cessation, closure, conclusion, the act of bringing a matter to an end''. Superannuation seems to us to be an event which comes more or less in an automatic process. An age is fixed on the reaching of which the holder of an office is required to go out of office. There is no volition in the act. With the lapse of time the event automatically comes. Both the parties, that is, the employer and the employee have notice of the matter long before and it is an event which cannot be arrested by them if the rule IS to be followed. On the other band, termination is a positive act by which one party even against the desire of the other can bring about the end to an employment....

In the case of The United Provinces Electric Supply Co. Ltd., Allahabad Vs. Their Workmen, , the view expressed by this Court, as aforesaid, was in clear terms approved.

Mr. Mohapatra for opposite party No. 1 takes the stand that the Orissa Education (Recruitment and conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974, made under the Orissa Education Act came into force with effect from 1-4-1975. Under Rule 18 as it then stood, it was not open to terminate opposite party No. 1''s service except on the ground that the post was superfluous and that too with the approval of the Board. We have already indicated that in the instant case there was no termination and, therefore, the application of the Rules was not attracted. Again, the Board contemplated under the Rules had not been functioning then and, therefore, the Rules were indeed not operative though the same had been notified to be in force. Mr. Mohapatra next contended that opposite party No. 1 was actually in service after 30-5-1975 and if he had been continuing in Service after that date, his service cannot be accepted to have been for a specified term. This argument is advanced on the basis of the letter dated 3-8-1975 (Annexure-8) where opposite party No. 1 has been described as an Assistant Teacher of the School. The contents of the letter are, however, clear that the service stood terminated

with effect from 31st May, 1975, and he was only being communicated the fact that the action of the Management had been approved by the Inspector. There is no assertion by the opposite party No. 1 any where that he was in service beyond 31-5-1975 nor is there a finding to support this stand in the appellate order. We are, therefore, not inclined to entertain this new argument on the assumption of a fact for which there is no foundation. We are thus satisfied that the view taken by the Appellate Tribunal is contrary to law and is bound to create difficulty in the management of the School.

Mr. Mohapatra for opposite party No. 1 during hearing of the application had taken the stand that this was not a case where the extraordinary jurisdiction of this Court should be exercised. According to him, the matter was not covered by Clause (a) of Article 22b(l) of the Constitution and if it came within the other provisions, there was no material to hold that there was substantial injustice to the Petitioner. We have already indicated that the approved pattern does not admit of untrained teachers and the School requires a trained hand. There is material on the record to support the stand of the Management that a trained teacher has already been appointed in the vacancy which had automatically temporarily been filled up by opposite party No. 1. In that event, there would be no post which opposite party No. 1 could hold and the Management would be substantially prejudiced if the appellate order was to be enforced.

The writ application is accordingly allowed and the appellate order of the Tribunal is quashed. Parties are directed to bear their own costs of this proceedings.

Writ application allowed.

B.K. Ray, J. -I agree.