ST A TE OF ORISSA AND ORS.

LOKNATH RAY AND ORS.

MARCH 15, 2005

[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Service Law :

Orissa Educational Act, 1969/0rissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided C Educational Institutions) Rules I 97 4 and Circulars fixing yardsticks for fixation of Staff Strength :

Appointment of Respondent No. I-incumbent as Peon/fourth peon by School Management-Approval not granted by State authorities-Challenge to-Allowed by High Court-On appeal, Held: Post mentioned in the Circulars D , is 'Daftry' and not fourth peon '-Post of Daftry carries higher scale of pay and is a promotional post-Hence, High Court was not justified in directing appointment of the incumbent as fourth peon-However, if the school has sanctioned the post of 'Daftry ', the appointment of the incumbent for Class- IV post could be made by promoting one of the three existing Class-JV employees-School Management directed to consider the claim of the incumbent E accordingly-Directions issued

Respondent No. 1 was appointed as 'fourth Peon' in a School.

However, the State Authorities did not approve the appointment of respondent No. 1. Challenging the decision of the Authorities, the F incumbent filed a writ petition, which was allowed by the High Court holding that the State authorities were not justified in refusing to grant approval for the appointment made by the School.

Disposing of the appeal, the Court

HELD : 1.1. The expression used in the Circulars issued by the Government of Orissa fixing standard staff for non-governmental Secondary Schools is "Daftary" and not "fourth peon". The High Court seems to have fallen in error by proceeding on the basis as if the Circulars referred to "fourth peon". The post of "Daftary" carries higher scale of

sn H

A pay and is a promotional post for class IV employees. That being the position, the High Court was not justified in directing appointment of the writ petitioner as "fourth peon". But, if the school was entitled to have the post of "Daftary", certainly the appointment was to be made by promoting one of the three Class-IV employees, namely, Office Peon, B Office Attendant and Night Watcher-cum-Sweeper, there being no other class IV post in the school. It is for the Managing Committee of the school to decide who is to be promoted and thereafter seek approval of the concerned State Authorities. That way the claim of the wri.t petitioner could have been considered by the authorities, on being appropriately inoved by the school management. (877-C-D-E] c 1.2. The Management of the respondent-institution is directed to move the concerned authorities for approval for the promotional appointment from class IV employee of the school. Simultaneously, it can also recommend for appointment of the incumbent for class IV post in accordance with law keeping in view the operative yardstick in force at D the time of the appointment. (877-F-G]

State of Orissa and Ors. v. Rajendra Kumar Das and Anr., (2003) 10 sec 4U, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1779 of

E 2005.

From the Judgment and Order dated 30. l 0.2002 of the Orissa High Court in O.J.C. No. 12815 of 1999.

Jana Kalyan Das for te Appellants.

The Judgment of the Court was delivered by

AR:IJIT PASAYAT, J. Leave granted.

The factual background can be adumbrated concisly as fol.lows :

G The respondent no. I filed a writ application before the Orissa High Court claiming that he was appointed as "fourth peon" by the Management of the concerned institution i.e. Samanta Singhar Higli School in district of Jaipur, Orissa (Respondent no. 2) which is an "aided educational institution" as defined under the Orissa Education Ad, I 969 (in short the 'Act') and H Orissa Education (Recruitment and Conditions of Service of Teachers and

STATEOFORISSA v. L. RAY [PASAYAT, J.] 875

Members of the Staff of Aided Educational Institutions) Rules, 197 4 (in short A '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 of respondent no.

I holding the same to be beyond the prescribed yardstick, writ application B was filed for direction to the concerned authorities to accord approval to the appointment.

The High Court by the impugned judgment came to hold that the functionaries of the State were not justified in refusing to accord approval.

Stand of the State Government was that circular dated 8. 7 .1981 contained C 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. According to the State Government the post of "Daftary" is a promotional post and, therefore, the concept of a "fourth D peon" as sought to be canvassed by the writ petitioner 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 that the claim of the writ petitioner warranted acceptance.

In support of the appeal, learned counsel for the State ofOrissa 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 higher scale of pay. That being the position, the last entrant cannot claim the post of the "Daftary". F

Reliance was placed on decision of this Court in State of Orissa and Ors. v. Rajendra Kumar Das and Anr., and connected matters [2003] I 0 SCC 411 in support of the stand.

There is no appearance on behalf of the respondents.

At this juncture it is to be noted that at different points of time yardsticks were formulated. Government ofOrissa, Education & Y.S. Department, issued Cfrcular No. 28365-EYS dated 8.7.81 fixing standard staff for the nongovernment secondary schools. So far as peons are concerned, the relevant portions of the circular read as follows : H

"Category of staff

9. Peons (I) Office Peon

(ii) Office Attendant

(iii) Night watcher cum sweeper

Notes

3 class

[2005] 2 S.C.R.

5 class 7 class

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

D Subsequently by another circular No. 155000-XVIIEP-50/91-E, dated

27th March, 1992 the position was further clarified as under : -

"I am directed to say that the qustion of fixation of revised yardstick for appointment of class IV employees in Non-government Secondary Schools was under consideration of Government for some time past. After careful consideration Government have beenpleased to decide that the yardstick for class IV employees of Non-Government Secondary Schools shall be as follows :

Category of staff 3 class 5 class 7 class

(i) Office Peon

(ii) Science Attendant

(iii) Night Watcher cum l Sweeper

Where the roll strength of 10 Class High School is 500 (five hundred) or more, one post of Daftary is admissible.

For the schools running shift system for shortage of accommodation one additional post of peon is.admissible.

STATEOFORISSA v. L.RAY[PASAYAT, J.] 877

The yardstick will come into force with effect from the 1st January A 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 requisite roll strength was 100, which was changed to 500 subsequently in the 1992 Circular.

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 as if the circulars referred to "fourth peon". This is clear from the reading of the judgments impugned in the present appeal.

It is to be noted that the 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 petitioner's 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 D 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 claim of the writ petitioner could have been considered by the authorities, on being appropriately moved by the E management. It is undisputed that the writ petitioner was appointed by the managing committee, may be under a misreading of the relevant government order. The above position was indicated in Rajendra Kumar Das 's (supra).

We, therefore, while allowing this appeal direct that the management of the respondent-institution shall move the concerned authorities for approval F 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 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 G with law keeping in view the operative yardstick 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 has been stated above.

Before we part with this case we must indicate, as was done in Rajendra Kumar Das 's (supra), that undisputedly there were several decisions of the H

A Division Benches rendered at earlier point of time, taking a view contrary to the one taken in the impugned judgment. In fact, one such order is dated 3.12.1998 in 0.J.C. No. 14004/97 referred to Rajendra Kumar Das 's (supra).

The decisions do not appear to have been brought 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 B Government, before the High Court.

The appeal is allowed in the aforesaid terms, leaving the parties to bear their respective costs.

S.K.S. c Appeal disposed of.