REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.              OF 2009 (Arising out of SLP (C) No. 6405 of 2004)

State of Orissa and Ors. ..Appellants

Versus

Khirod Kumar Nayak     ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Delay condoned.

2. Leave granted.  

3. Challenge in this appeal is to the order of a Division Bench of the

Orissa  High  Court.  Factual  background  can  be  adumbrated  concisely  as

follows:

4. The responded no.1 filed a writ  application being OJC No.6857 of

1996  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

Institutions) 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 yardstick, writ

applications were filed for direction to the concerned authorities to accord

approval to the appointment.  

5. The High Court by the impugned judgment in writ application 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  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  who can  be  appointed  was

clearly  spelt  out.  Only  if  the  roll  strength  of  the  institution  exceeded  a

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particular number, one post of “Daftry” was admissible.  According to the

State Government the post of “Daftry” 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 “Daftry” and held the

claim of the writ petitioner warranted acceptance.   

6. In  support  of  the  appeal,  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 “Daftry” is a promotional post and it carries higher

scale of pay.  That being the position, the last entrant cannot claim the post

of the “Daftry”.   

7. Per contra, learned counsel for the writ petitioner 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 enforceable.   

8. At  this  juncture  it  is  to  be  noted  that  at  different  points  of  time

yardsticks  were  formulated.  Government  of  Orissa,  Education  &  Y.S.

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Department, issued Circular No. 28365-EYS dated 8.7.1981 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 5class 7 class

..............

9.Peons (I) Office Peon 1 1 1

(ii) Office Attendant 1 1 1

(iii) Night watcher cum sweeper 1 1 1

Notes

................

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

.......”    

9. 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  question  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 been pleased to

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decide that the yardstick for class IV employees of Non- Government Secondary Schools shall be as follows:

Category of staff 3 class 5class 7

class

(i) Office Peon 1 1 1

(ii)Science Attendant 1 1 1

(iii)Night Watcher cum 1 1 1 Sweeper

Where the roll strength of 10 Class High School is 500 (five hundred) or more, one post of Daftry 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 Ist  January  1992  and  Government  order  referred  to  above stands modified to the extent indicated above.”

10. 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.

11. It is fairly accepted by learned counsel for the writ petitioner that the

expression used in the two circulars is “Daftry” and not “fourth peon”. The

High Court seems to have fallen in error by proceeding on the basis as if the

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circulars  referred to  “fourth  peon”.  This  is  clear  from the reading of  the

various judgments impugned in this appeal.

12. It is to be noted that post of “Daftry” 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 “Daftry”, 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 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

management. It is undisputed that the writ petitioner was appointed by the

managing  committees’,  may  be  under  a  misreading  of  the  relevant

government orders.                        

13. We, therefore, while allowing this appeal 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

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“Daftry”.  Simultaneously,  it  can  also  recommend for  appointment  to  the

class  IV  post,  in  case  approval  is  accorded  to  the  recommendation  for

appointment of “Daftry” 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 appointments were made. Even if there has

been refusal earlier, the matter shall be reconsidered in the light of what has

been stated above.

14. Before we part with this case we must indicate that undisputedly there

were several  decision of the Division Bench rendered at earlier points  of

time, taking a view contrary to the one taken in the impugned judgment.

Learned counsel for the respondent (writ petitioner) fairly accepted that it is

so.  In fact, copy of one such decision dated 15.7.1996 in O.J.C. 5108/96

was placed on record and it has been brought to the notice of the learned

Judges hearing the writ petition.   

15. The appeal is allowed in the aforesaid terms, leaving the parties to

bear their respective costs.         

………………………………….J. (Dr. ARIJIT PASAYAT)

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………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 23, 2009

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