RANJANA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this writ petition the petitioner has prayed for quashing the order dated 13.11.98 (Annexure -15) passed by the Director, Elementary Education, Orissa (O.P. No. 2) rejecting the proposal for according approval to the appointment of the petitioner, Assistant Teacher of Bagalpur U.P. (M.E.) School and directing the opposite parties, specifically O.P. No. 2, to approve her appointment as Asst. Teacher of the said Educational Institution from the date of her appointment i.e. 5.10.1989 as against the sanctioned post of Asst. Teacher.

(2.) THE case of the petitioner is that she is' continuing as an Asst. Teacher of Bagalpur U.P. (M.E.) School with effect from 5.10.1989 and the school was receiving Grant -in -aid right from the year of its establishment in the year 1928. The said educational institution is having four classes starting from Oriya Medium Class -IV to Class -VII. As per the prescriDed yardstick prevalent the school was having five teachers i.e. one Headmaster and four Asst. Teachers. In the year 1989 one Suryamani Mohanty, Matric C.T. Asst. Teacher retired on 30.9.1989 on attaining the age of superannuation and in view of the resultant vacancy, in order to fill up the said vacant post, the Managing Committee of the School as per the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (in short, '1974 Rules') issued an advertisement on 1.9.1989 inviting plain paper applications from the eligible candidates having Matric C.T. qualification or above for the post of Asst. Teacher which was likely to fall vacant from 1.10.1989 due to retirement of Sri Suryamani Mohanty, Asst. Teacher. The petitioner in response to the said advertisement submitted her application to the Managing Committee of the School for consideration of her case for appointment against the said vacant post along with other candidates and the Managing Committee of the School following all formalities as per rules selected the petitioner to hold the post of Asst. Teacher lying vacant in the School. Since the post lying vacant was due to superannuation of an Asst. Teacher, which post was sanctioned as per rules, the Managing Committee was not authorized to give any appointment and to pay salary as per the scale fixed by the State Government, the Managing Committee of the School preferred to give appointment to the petitioner against the said vacant post on honorarium basis. The petitioner then was having the degree in Bachelor of Arts. Considering the recommendation of the Selection Committee order of appointment was issued in favour of the petitioner on 2.10.1989 and in the said order of appointment it was specifically stated that the petitioner was appointed on ad hoc basis as Asst. Teacher in the existing vacancy created on the retirement of Sri Suryamani Mohanty vide Annexure -2. The petitioner in pursuance of the said appointment order joined in the School on 5.10.1989 (Annexure -3). Thereafter, on 8.12.1989 the Managing Committee of the School passed a Resolution approving the appointment of the petitioner. The petitioner while in the service of the School completed her B.Ed, course and passed B.Ed examination from Utkal University on 20.5.1991. While the petitioner was continuing as Asst. Teacher on honorarium basis, on 12.12.1990 a letter was issued from the Director of Elementary Education (O.P. No. 2) (Annexure -5) to the Secretary of the School on the subject of allotment of candidate for appointment as trained Matric Teacher in the school and the name of one Smt. Prativa Prusty was sponsored for appointment as trained Matric C.T. Assistant teacher. But the said sponsored candidate Smt. Prusty did not prefer to join in the school of the petitioner as she had been appointed as a Primary School Teacher in the Biridi Block, which is nearer to her house. In the aforesaid circumstances, the petitioner, who was continuing on honorarium basis against the sanctioned post of C.T. Assistant Teacher submitted an application before the Headmaster of the School for regularization of her service and for approval of the post of Asst. Teacher of the School. In the said application she had mentioned that she is a physically handicapped lady and had completed her B.Ed, course and as such her case might be considered for approval of appointment. The Headmaster of the School in his turn issued a letter on 18.9.1992 (Annexure -8) to the D.I. of Schools, Jagatsinghpur (O.P. No.4) referring to the Managing Committee's approval and also stating therein that the petitioner who was appointed on honorarium basis was still continuing on the same basis and had completed her B.Ed course successfully and was rendering service to the School without any payment and the Headmaster also recommended for approval of the appointment as the petitioner is a partially handicapped person and she needed sympathetic consideration. On receipt of the recommendation from the Headmaster of the School, the D.I. of Schools verified the official records regarding the process and procedure adopted by the Managing Committee in giving the petitioner appointment against the vacant post and on verification of all the official records issued a letter to the Director of Elementary Education (O.P. No. 2) recommending for approval of the appointment of the petitioner as against the post of sanctioned Asst. Teacher of the School. The D.I. of Schools also indicated in the said letter that the Selection Board Candidate Smt.Prativa Prusty duly sponsored for the post did not join. She also further recommended that since the petitioner was a qualified teacher having B.Ed, degree and a physically handicapped candidate her case may be considered by the Director. The D.I. of Schools also enclosed all the documents including the appointment letter, joining report, the certificates regarding the petitioner's educational qualifications and the certificate showing her to be orthopaedically handicapped while recommending her case to the Director vide Annexure -9 dt. 22.12.1992. The Director vide his letter dated 4.2.1993 (Annexure -10) to the D.I. of Schools made certain queries including the query as to why the proposal for recommendation was being forwarded after lapse of more than three years of the appointment of the petitioner and to clarify whether the petitioner was drawing her salary under direct payment scheme and if not the reason thereof. She also directed the D.I. of Schools to furnish the appointment file of the petitioner and some other documents and the D.I. of Schools in his turn sought for clarification and submission of the documents from the Headmaster of the School, who complied with the same vide his letter dated 26.11.1993 (Annexure -11). The D.I. of Schools submitted all the relevant clarification sought for by the Director and again the Director sought for information regarding the number of sanctioned post of the school as per the yardstick in the year 1998 vide his letter dated 22.9.1998 (Annexure -13) and the D.I. of Schools gave the details by his letter dated 16.10.1998 (Annexure -14) that the school had sanctioned strength of one Headmaster and four Asst. Teachers as the school is having four classes from Class -IV to Class -VII and this sanctioned strength of teachers is there from the very beginning of the school from the year 1928. Even after receiving all the information to his query the Director refused to accord approval of appointment of the petitioner as Asst. Teacher of the School on the ground that (i) the name of the petitioner did not find place in the list of teachers approved by Government when the school was taken over by Government with effect from 1.4.199,1; and (ii) the appointment of Smt. Das in the Bagalpur U.P. (M.E.) School has not been made by the Managing Committee as per rules, as she was untrained and one Selection Board candidate was allotted for appointment against the post. This refusal of approval of appointment of the petitioner (Annexure -15) has been challenged and sought to be quashed in this writ petition.

(3.) A rejoinder affidavit has been filed by the petitioner meeting the points raised in the counter affidavit filed by O.P. No. 2 stating therein that since the school was going without a teacher after retirement of an Asst. Teacher, Sri Suryamani Mohanty, the Management of the School had invited applications and after observing all formalities selected the petitioner who only was willing to work on honorarium basis and since there was every possibility of the selection board candidate being sponsored for appointment in the vacant post and the petitioner had to quit in that event, the matter of her appointment was not intimated by the Managing Committee of the School to the District Inspector of the Schools. Right from the year 1989 no Selection Board Candidate was sponsored for appointment against the vacancy, as stated above, and in December, 1990 allotment of a candidate for appointment against the said vacant post in the school was made and Smt. Prativa Prusty was sponsored, who declined to join vide her own letter Annexure -6. It is further clarified in the Rejoinder affidavit that as there was every chance of allotment of Selection Board candidate to fill up the vacancy at any time after Smt. Prativa Prusty refused to join, the matter was not brought to the notice of the D.I. of Schools and after the school was taken over by the Government on 1.4.1991 and since till 1992 no allotment of Selection Board Candidate was made for appointment against the vacant post and since in the meantime the petitioner had obtained B.Ed. qualification, the Headmaster on . the representation of the petitioner wrote for approval of the appointment of the petitioner in the vacant sanctioned post of C.T. Asst. Teacher.