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CASE NO.: Appeal (civil)  6844 of 2003

PETITIONER: State of Orissa and Ors.                                         

RESPONDENT: Vs. Rajendra Kumar Das and Anr.                              

DATE OF JUDGMENT: 29/08/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

(Arising Out of S.L.P. (C) No. 7032 of 2002)

[With CA No.6846/2003 (Arising out of SLP (C) No. 7994/2002, CA  No.6848/2003 (Arising out of SLP (C) No. 9699/2002, CA No.6847/2003  (Arising out of SLP (C) No. 20165/2002, CA No.6845/2003 (Arising out of  SLP (C) No. 19708/2002  

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:

       The responded no.1 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 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.  

       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 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.  According to the State Government the post of  "Daftary" is a promotional post and, therefore, the concept of a

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"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.   

       In support of 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 "Dafrty" 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".   

       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 enforceable.   

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

......."    

       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 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 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 Ist

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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 requisite roll strength was 100, which was changed to 500  subsequently 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 as if the 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’ 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 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.                            

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 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 has been stated above.

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  judgments.  Learned counsel for the respondents (writ petitioners)  fairly accepted that it is so.  In fact, copy of one 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 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.