HIGH COURT OF ORISSA : CUTTACK WRIT APPEAL NO.04 Of 2002 In the matter of an application under clause-10 of the letters patent Act read with Chapter-8, Rule-2 of the Orissa High Court Rules, 1948. -------------- State of Orissa & Others …… Appellants -Versus- Nabin Kumar Beura …… Respondent For Appellants : Standing Counsel for School & Mass Education Deptt. For Respondent : M/s. K.K.Swain, P.N.Mohanty, B.Jena & S.C.Das. --------------- P R E S E N T : THE HON’BLE CHIEF JUSTICE SHRI V. GOPALA GOWDA, AND THE HON’BLE JUSTICE SHRI INDRAJIT MAHANTY. Date of hearing and judgment : 27.07.2010 Indrajit Mahanty, J. The present letters patent appeal has been filed by the State of Orissa, represented by the Secretary, School and Mass Education Department, the Director, Secondary Education, Orissa and the Inspector of Schools, Jagatsinghpur Circle seeking to challenge the judgment dated 15.5.2001 passed by the learned Single Judge allowing O.J.C. No.8377 of 1998 with a direction to the State Government to create the post held by the petitioner and approve his appointment and release salary component within a period of six months from the date of communication of that order. 2. Learned Standing Counsel for the School and Mass Education Department submitted that the writ petitioner (present respondent) had earlier filed O.J.C. No.7213 of 1997 before this Court and the same was disposed of vide the order dated 14.7.1997 with the following directions : “ … …. If the matter is pending as asserted by petitioner, let the Inspector of Schools, Jagatsinghpur Circle (Opp. Party No.3) deal with the matter and dispose of the same within four months from the date of receipt of our order.” It is further asserted that after the aforesaid direction was passed, the Inspector of Schools, Jagatsinghpur Circle in compliance of the said direction, rejected the representation filed by the present Opp. Party vide his office order dated 31.12.1997 on the following grounds : “ 1) That, the Managing Committee of the School has appointed the petitioner against Supra post who joined in the school on 1.8.92. 2) While appointing the petitioner against Supra post the Mnaging Committee of the School has not taken prior permission from the competent authority. 2 3) Addl. Section teachers are not within the standard staff. The petitioner is working against unapproved post which not created by Government.” Learned Standing Counsel further submitted that the Opp. Party claims to have been appointed by the Managing Committee of Jawahar Smruti Bidyapitha, Badhei as an Additional Section Teacher (Supra post) on 19.7.1992. It was further asserted that much prior to 19.7.1992, the school in question had become an “aided educational institution” and the appointment of the respondent had been made without following the procedure prescribed under Rule-5 of the Orissa Education (Recruitment and conditions of Service of teachers and Members of the staff of aided educational institutions) Rules, 1974 (hereinafter referred to as “1974 Rules” ). He further submitted that since the Managing Committee of the school in question appointed the respondent by creating a post on their own volition as an Additional Section teacher, his appointment was wholly invalid, since, creation of a post of Addl. Section teacher had to be made only with the prior approval of the Government, who bear the salary cost by way of grant-in-aid. It is, therefore, asserted that since the Managing Committee without having the necessary authority in law, created the post without the prior approval of the State Government and thereafter, purportedly proceeded to appoint the respondent in the said post without complying with the requirement of Rule-5 of 1974 Rules, which prescribes the procedure for 3 appointment of teachers and staff, the same had to be made through the Selection Board and therefore, the appointment of any candidate without the recommendation by the Selection Board is per se illegal and unauthorised. In terms of Rule-5(8), the Managing Committee merely possesses the right to appoint a person only for a period of six months and/or till recommendation of Selection Board is received whichever is earlier, would have been valid, provided prior approval of the Inspector had been taken. Therefore, the learned Standing counsel submitted that since neither prior approval had been sought for the creation of the post nor any prior approval as per Rule-5 had been sought for nor obtained for appointment of the respondent, the State Government was left with no other alternative other than to reject the representation of the respondent. He further submitted that since the appointment of the respondent by the Managing Committee is without the recommendation of the Selection Board and without the prior approval of the State Government, the said appointment is clearly invalid. According to the learned Standing Counsel, the Hon’ble Single Judge had failed to take into consideration the aforesaid statutory requirements while allowing the writ application in favour of the respondent and hence, prayed for quashing of the same. 3. Mr.K.K.Swain, learned counsel for the respondent has strongly supported the findings of the learned Single Judge as well as on 4 a judgment of a Division Bench of this Court presided over by the Chief Justice B.L.Hansaria (as his Lordship then was) in the case of Managing Committee, Majhipada M.E.School Vrs. State of Orissa & Others, 1992 (I) OLR 447. 4. On perusal of the impugned judgment, it appears that the learned Single Judge has dealt with two issues. The first being that Section 5 of the Orissa Education Act was for the first time brought into the Statute by Orissa Act No.13 of 1994 and secondly, the fact that the respondent had got appointment in the year 1992 and the requirement of ‘prior permission’ for appointment of the respondent was no more justifiable in view of the judgment of this Court in the case of Majhipada M.E. School (supra) and therefore, came to hold that ‘post facto permission’ should also be granted. 5. In so far as the second issue in relation to ‘creation of post’ is concerned, the learned Single Judge concluded that since 1981 yardstick clearly provides that in addition to one Trained Graduate teacher for every three additional sections of classes VIII to X taken together, one additional Trained Graduate teacher or one classical teacher according to necessity would be admissible, he concluded that ‘the creation of a post’ is a mere formality and the proposal submitted by the Managing Committee cannot be turned down only on the ground that the post had not been created. 5 6. At this juncture, it is essential to deal with the requirement of Rule-5 of 1974 Rules which is quoted herein below : “5. Procedure of application to the Board and appointment of Staff in Aided Institutions – (1) The Secretary of the Managing Committee the Governing body, as the case may be, of an Aided Educational Institution shall, on or before the thirty- first day of August every year apply to the Selection Board with copy of each application to the concerned Inspector of Schools in respect of Schools [Director of Higher Education] in respect of Colleges in such manner as the Selection Board may prescribe for selection of a candidate for appointment in the vacancy or vacancies in teaching post, [***] and the concerned Inspector of Schools and [Director of Higher Education] shall process the applications so received and transmit the same to the Selection Board by thirtieth day of September every year with certificate of genuineness of the vacancy or vacancies along with a statement of the vacancy position in the Educational Institutions within his jurisdiction. xxx xxx xxx (8) It shall not be necessary to apply to the Selection Board for appointments to vacancies [for a period of six months or till the date of receipt of the list referred to in Sub-rule (2) from the selection Board whichever is earlier] and all such appointments may be made by the Managing Committee or the Governing Body, as the case may be, with the prior approval of the Inspector in respect of an Institution other than a College and of the Director in respect of a College. xxx xxx xxx (9) Notwithstanding anything contained in Sub-rule (8), it shall be competent for the Managing Committee or the Governing Body, as the case may be to extend the term of appointment beyond six months till the recommendation of the Selection Board is received with the prior approval of Government.” 6 7. Since reliance has been placed by the learned Single Judge on the judgment of this Court in the case of Majhipada M.E.School (supra) and a great amount of emphasis was laid by Mr.Swain thereon, it now becomes necessary to consider the aforesaid judgment. In Majhipada M.E. School’s case the facts are that one Rasananda had been appointed as an Asst. Teacher on 1.7.1983 temporarily and continued as such till he was appointed as the Headmaster of the school, first on ad hoc basis and then permanently, by order dated 4.4.1987. The school started receiving the grant-in-aid from 1.8.1987. Therefore, Rasananda had been appointed prior to the educational institution becoming an aided institution. After a new Managing Committee was constituted and assumed office, Rasananda’s service was terminated, against which order he preferred an appeal before the State Education Tribunal under Section 10-A(3) of the Orissa Education Act, 1963. The Tribunal set aside the termination order on the ground that ‘prior approval’ of the competent authority was not taken prior to terminating his service and therefore, direction was issued to reinstate Rasananda in the post of Headmaster. That order of the Tribunal came to be challenged by the Managing Committee before the High Court. Since admittedly ‘prior approval’ of the concerned authority as required under section 10-A(I) of the Act had not been taken, the termination of the service of Rasananda, without 7 obtaining ‘prior approval’ of the authority was declared to be invalid and the finding of the Tribunal was up-held by this Court in paragraph-4 of the said judgment. 8. In contrast to the facts of Majhipada M.E.School, in the present case, the respondent claims to have been appointed as an Additional Teacher in the year 1992, after the institution had become aided. In other words, while Rasananda had been appointed prior to the institution coming to the fold of G.I.A., in the present case, the respondent was appointed after the institution i.e. Jawahar Smruti Bidyapitha had come into G.I.A. Scheme. The second fact of great significance is that, in the case of Majhipada M.E. School, the termination was made without complying with the requirement of Section 10-A of the Education Act, which required ‘prior approval’ for termination and such a requirement was held to be ‘mandatory’. 9. While dealing with Majhipada M.E. School’s case, various other contentions were also taken into consideration by this Court since the learned counsel for the petitioner-Managing Committee therein, raised a contention that continuance of Rasananda in the school beyond six months of his first appointment was in violation of Rule-5(8) of the 1974 Rules, inasmuch as ‘prior approval’ of the concerned authority had not been taken for his ‘appointment’ as required by the Rules. Therefore, it was contended that the appointment of Rasananda in the school 8 beyond the period of six months was void, for which reason prior approval contemplated by Section 10-A(1) of the Act was not required to be taken. In paragraph-6 of the judgment, this Court dealt with the issues raised in the case and came to hold that the first question does not present any problem, as the school having become aided on 1.8.1987, the Rules which are meant for aided institutions would not have applied to the cases of teachers appointed before 1.8.1987. On this ground itself, the contentions raised by the learned counsel for the petitioner were rejected. 10. It is important to note here that the facts of the present case are distinctly different. The school in question i.e. Jawahar Smruti Bidyapitha, Badhei became aided prior to 1992 and therefore, 1974 Rules which are meant for ‘aided institutions’ would have total application to the appointment of the respondent, since admittedly he had been appointed much after the school had become aided. Therefore, the facts of the present case are clearly distinct from the facts of the case of Majhipada M.E.School. Considering the importance of the issues raised and the consequence of the impact of such a decision, in Majhipada M.E.School’s case, this Court sought for assistance of other Senior counsel and considered their contentions raised in course of argument. 9 Reference was made to the proviso to Rule-5(8) and the Court found some force in the contention that the proviso would indicate that if appointment of a teacher is against the provision of Rule 5(8), his appointment is not to become invalid in any way, but appropriate action shall be taken against the Managing Committee. Reference was also made to the letter dated 22.8.1977 issued by the Education and Youth Services Department and printed at pages 739-40 of Panda’s Orissa Education Manual, 1990 Edition which has dealt with the subject of extension of service of teachers appointed on ad hoc basis beyond six months in aided High and M.E. Schools and prior approval of the Government to extend the term of appointment beyond six months as required by Rule-5(9) of the 1974 Rules may be taken to have been accorded. Reliance was placed on the aforesaid letter for the purpose of indicating that, even though Rule-5(9) speaks of ‘prior approval’, post facto approval was accorded by the Government by a general communication covering a large number of cases. The Court also took into consideration its own experience in the matter of ‘prior approval’ as required under Rule-5(9) was rarely taken by the concerned authority and the matter was referred to the authority ‘after the appointment’ is made by the Managing Committee, and the concerned authority thereafter accords approval retrospectively with effect from the permissible date. Therefore, it was held that the strict letter of the rules has not been 10 insisted upon and the Court declined to upset the ‘general convention’ that any appointment made ‘without prior approval’ would be illegal in the eye of law. 11. Referring to the principles of ‘contemporanea expositio’ and the judgment of the Supreme Court in the case of K.P.Varghese Vrs. Income Tax Officer, (1983) 4 SCC 173 as well as various other judgments and Authors, this Court came to the conclusion that, in construing a statute Courts will give much weight to the interpretation put upon it at the time of its enactment by those whose duty it has been to construe, execute and apply. Accordingly, this Court laid down the requirement of the Rule relating to ‘prior approval’ as mere approval, which can be ‘post facto’ also. This Court held that it would be unreasonable as it would unsettle the settled practice, if the Court holds that the letter of the law, which requires ‘prior approval’, must mean what it says and giving of approval afterwards would not meet the requirement of law. Therefore, in order to make the provision reasonable, the same was wholly read down. In paragraph-14 of the said judgment this Court held that because of lack of prior approval, appointment of a teacher cannot be regarded to be invalid. But then, what view has to be taken regarding the validity of the appointment, if there be no approval even afterwards ? This question was answered by stating that the answer would depend on the 11 fact as to who is questioning the appointment. If the approving authority raises this question, the same would be permissible and what it too can do is to refuse approval, the effect of which would be that the teacher cannot continue after the approval is refused. This action would not amount to invalidation of the very appointment, so much so as to regard the same as void, because of which it could even be suggested that the teacher was not entitled to receive his salary for the period of service rendered by him prior to the date of refusal of the approval which would have disastrous consequences. We cannot permit such a consequence to take effect, because in such a case the teacher was not even entitled to receive his salary, an effort may be made to recover the same from him. In paragraph-18 of the said judgment, this Court has expressed its view that it is not necessary to delve into the matter as to whether appointment of teacher without prior approval is void or voidable. It was held that we have taken this stand because, as already observed, we would not regard the appointment made without prior approval as void. This apart, the controversy as to when an action or order is void and when it is voidable is too complicated and we do not think it necessary to enter into the mess or quagmire. 12. On a detailed analysis of the case of Majhipada M.E. School (supra), the facts of that case are distinct from the facts of the present case as noted herein above. In so far as the issue of ‘prior approval’ is 12 concerned, it would be pertinent also to take note of the amendment brought by the State by the Orissa Act No.13 of 1994, requiring ‘prior permission’ for establishment of educational institutions, since the State wanted to stop the mushroom growth of the educational institutions. Obviously, Orissa Act No.13 of 1994 was not available for consideration in the case of Majhipada M.E.School (supra) which was decided on 21.02.1992. We are of the view that the learned Single Judge failed to consider the legal requirements ‘prior to creation of the post’. Whenever an additional section teacher post is required, 1974 Rules itself required ‘prior sanction of the post’ itself whereafter only, consideration for filling up the post would arise. In the present case admittedly the institution had never sought for any approval or creation of any Additional post and consequently, it had no right to fill up the said post and that too by appointing the respondent without prior approval and whose name does not find place in the Select list prepared by the Selection Board. 13. What is most important to note here that the respondent was appointed in the year 1992 as an Additional Section teacher much after the school in question had already come to the fold of Grant-in-aid and therefore, the institution was receiving aid prior to the date of appointment of the respondent. Admittedly, therefore, 1974 Rules would apply to the respondent. In the present case, it is the admitted case of the parties, that no approval either for “creation of the post” or for 13 “appointment of Additional teacher” was ever sought for nor approved. Rule-5(8) clearly mandates that all appointments in aided institutions shall be made from the list provided by the Selection Board. The Managing Committee could make temporary appointment for a maximum period of six months but that too, after approval of the Inspector of Schools. In the present case, no such approval was granted and subsequent to the disposal of the earlier writ application i.e. OJC No.7213 of 1997 on 14.7.1997, the Inspector of Schools came to reject the representation of the respondent. Therefore, while the facts of the present case is clearly distinct from the facts dealt with in Majhipada M.E.School’s case, we are of the view that the learned Single Judge erred in misconstruing the judgment of this Court in the aforesaid case by holding that post facto approval would be obtained as a matter of right. We are further of the view that the learned Single Judge also erred in directing the ‘creation of a post’, since the competency for creation of a post lies only with the authority vested with such authority under the Act and such a direction in the absence of any application being made by the institution for creation of the post was clearly opposed the stipulation contained in the 1974 Rules. 14. Considering the circumstances noted herein above and the views expressed by us, we allow the writ appeal and set aside the 14 judgment passed by the learned Single Judge. But keeping in view the judgment passed by this Court in the case of Majhipada M.E. School (supra) and in particular, the principles laid down in paragraph-14 thereof, we are of the view that the appointing authority had the authority either approve or reject approval of the appointment of the respondent and since the appointing authority refused to accord approval by the order dated 31.12.1997 under Annexure-2, the same may only operate prospectively and, therefore, while allowing the writ appeal, we direct that since the institution in question, utilized the services of the respondent, the respondent shall be entitled to grant-in-aid till the date of refusal to accord approval i.e. 31.12.1997. With the aforesaid direction, the writ appeal is allowed. ……………………. I.Mahanty, J. ……………………. V.Gopala Gowda, C.J. ORISSA HIGH COURT; CUTTACK September , 2010/ KCP. 15