STATE OF ORISSA AND ORS.

RAJENDRA KUMAR DAS AND ANR.

AUGUST 29, 2003 B

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Service Law :

Orissa Education Act, 1969/0rissa Education (Recruitment and C Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974-Appointment of Peon-In aided educational institutions-State Approval-Denial of-On the ground that the approval was beyond prescribed yardstick provided by the statute- Writ petition-High Court directed to accord approval equating it to the post of 'Daftary'-Plea that post of 'Daftary' being promotional post and D with higher pay scale, last entrant cannot claim the same-On appeal held: The claim of the class JV employees could have been considered by the State by promoting one of the existing Class IV employees as 'Daftary'.

Respondents were appointed to the post of 'Peon' with aided E educational institutions as defined under Orissa Educational Act, 1969 and under Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. State did not approve the appointments. Respondents, claiming to have been appointed as 'fourth peon' filed writ petitions for direction to the concerned authorities to accord approval. High F Court equated the "fourth peon" with "Daftary" and held that the claim warra d acceptance.

In apperal to this Court State contended that there was no prescription of a 'fourth peon' in the yardstick prescribed; and that G the post of 'Daftary' being a promotional post and as it carried higher scale of pay, the last entrant could not claim the post of 'Daftary'.

Allowing the appeals, the Court

HELD: 1. High Court was not justified in directing approval of the H writ petitioners' services as "fourth peon". Post of "Daftary" carries

higher scale of pay and is a promotional post for class IV employees. If a A school was entitled to have a "Daftary", certainly the appointment was to be made by promoting one of lhe 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 B 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. [150-C-E)

2. The management of the concerned institution shall move the concerned authorities for approval to the promotional appointment of C a class IV employee, as "Daftary". Simultaneoulsy, it can also recommend for appointment to the Class IV post, in case approval is accoreded to recommendation for appointment of "Daftary" on promotion. (150-F-G)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6844 of D 2003.

From the Judgment and Order dated 23.8.2000 of the Orissa High Court in O.J.C. No. 13475 of 1999.

WITH

C.A. Nos. 6846, 6848, 6847, 6845 of 2003.

Jana Kalyan Das for the Appellants.

Yasobant Das, Bharat Sangal, Ms. Sangeeta Panicker, R.R. Kumar, F Ms. K. Sarada Devi, Arvind K. Tiwari, Sudarsh Menon, Manoj Kumar Das and Sibo Sankar Mishra for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. : Leave granted.

As in all these appeals basic factual matrix is the same, except that the dates are different, and the points of law involved belong to the same spectrum; they are disposed of by this common judgment.

, The factual background can be adumbrated concisely as follows: H

A The responded no. I in each case filed a writ application before the Orissa High Court claiming that he was appointed as "fourth peon" by the management of the concerned institution, which is an "aided educational

institution" as defined under the Orissa Education Act, 1969 (in short the 'Act') and Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Instituti?ns) B Rules, 1974 (in short 'Recruitment Rules'). It is not in dispute that if an institution is an aided educational institution, same is governed by the Act and rules framed thereunder. The Recruitment Rules are framed under the Act. As the functionaries of the State did not approve the appointment holding the same to be beyond the prescribed y>1rdstick, writ applications C were filed for direction to the concerned authorities to accord approval to the appointment.

The High Court by the impugned judgments in separate writ applications came to hold that the functionaries of the State were not justified in refusing to accord approval. Stand of the State Government was D that circular dated 8.7.1981 contained yardstick for fixation of standard staff for the Non-Government Secondary Schools in supersession of earlier circulars. Under the "category of staff' the number of peons which can be appointed was clearly spelt out. Only if the roll strength of the institution exceeded a particular number, one post of "Daftary" was admissible.

E According to the State Government the post of "Daftary" is a promotional post and, therefore, the concept of a "fourth peon" as sought to be canvassed by the writ petitioners is without any legal foundation. The position was further clarified by Circular dated 27.3 .1992. The High Court on consideration of the rival stands came to equate the "fourth peon" with "Daftary" and held the claim of the writ petitioners warranted acceptance.

F In support ; the appeals learned counsel for the State of Orissa submitted that the High Court missed to consider several vital aspects.

Firstly, there is no prescription of a "fourth peon" in the yardstick prescribed. The post of "Daftary" is a promotional post and it carries G higher scale of pay. That being the position, the last entrant cannot claim the post of the "Daftary".

Per contra, learned counsel for the concerned writ petitioners submitted that the High Court has considered the circulars and come to the right conclusion that the claim for appointment as the "fourth peon" is legally H enforceable.

At this juncture it is to be noted that at different points of time A yardsticks were formulated. Government of Orissa, Education & Y.S.

Department, issued Circular No. 28365-EYS dated 8. 7 .81 fixing standard staff for the non-government secondary schools. So far as peons are concerned, the relevant portions of the circular read as follows:

"Category of staff 3 class 5 class 7 class B

9 .Peons (I) Office Peon

(ii) Office Attendanf

(iii) Night watcher cum sweeper

Notes

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

Subsequently by another circular No. 155000-XVIIEP-50/91-E, dated 27th March, 1992 the position was further clarified as under:-

"! am directed to say that the question of fixation of revised yardstick for appointment of class IV employees in Non- E government Secondary Schools was under consideration of Government for some time past.

After careful consideration Government have been pleased to decide that the yardstick for class IV employees of Non-Government Secondary Schools shall be as follows: F

Category of staff

(i) Office Peon

(ii) Science Attendant

(iii) Night Watcher cum Sweeper

3 class 5 class 7 class

Where the roll strength of I 0 Class High School is 500 (five hundred) or more, one post of Daftary admissible.

For the. schools running shift system for shortage of

accommodation one additional post of peon is admissible.

The yardstick will come into force with effect from the 1st January 1992 and Government order referred to above stands modified to the extent indicated above."

A comparison of the two circulars shows that under 1981 Circular the requi$ite roll strength was 100, which was changed to 500 subsequently B in the 1992 Circular.

It is fairly accepted by learned counsel for the writ petitioners that the expression used in the two circulars is "Daftary" and not "fourth peon".

The High Court seems to have fallen in error by proceeding on the basis C as ifthe circulars referred to "fourth peon". This is clear from the reading of the various judgments impugned in these appeals.

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' D 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 E 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.

F We, therefore, while allowing these appeals direct that the management of the concerned institution shall move the concerned authorities for approval to the promotional appointment of a class IV employee, as "Daftary". Simultaneously, it can also recommend for appointment to the class IV post, in case approval is accorded to the recommendation for G appointment of "Daftary" on promotion. The decision on both motions shall be taken within three months from the date of submission of the recommendation in accordance with law keeping in view the operative yardsticks in force at the time of appointments were made. Even if there has been refusal earlier, the matter shall be reconsidered in the light of what H has been stated above.

Before we part with this case we must indicate that undisputedly there A were several decision of the Division Bench rendered at earlier points of time, taking a view contrary to the one taken in the impugned judgments.

Learned counsel for the respondents (writ petitioners) fairly accepted that it is so. In fact, copy ofone such decision dated 3.12.1998 in O.J.C. 14004/ 97 was placed on record. The decisions do not appear to have been brought B to the notice of the learned Judges hearing the writ petitions. This speaks volumes about the seriousness exhibited by learned counsel appearing for the parties, - particularly the State Government, before the High Court.

The appeals are allowed in the aforesaid terms, leaving the parties to bear their respective costs.

K.K.T.

Appeals allowed.