09 December 1996
Supreme Court
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SANJUKTA PATTANAIK Vs STATE OF ORISSA

Bench: K. RAMASWAMY,G.T. NANAVATI
Case number: SLP(C) No.-023361-023361 / 1996
Diary number: 72508 / 1996


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PETITIONER: SMT. SANJUKTA PATTANAIK

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT:       09/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This special  leave petition  arises from  the judgment and order  of the  Orissa High  Court, made on September 18, 1996 in OJC No.2148/95.      The petitioner was appointed as a clerk on June 1, 1974 against a vacancy. On August 9, 1990, she seems to have been kept in-charge  of teaching  post in  the school.  It is her claim that  pursuant thereto  she was teaching as a teacher. Since no  action was  taken by  the authorities  to have her appointed as a teacher, she filed OJC No.671/91 on March 27, 1992 and  pending disposal  interim direction  was  granted. Pursuant  thereto,   she  was   appointed  with  provisional approval by  the Director  on August  4,  1992.  On  a  writ petition filed  by the  5th respondent  on  April  15,  1993 alleging that  she was  not entitled to the post, the matter was directed to be reconsidered. The Director refused appeal by proceeding dated March 4, 1995 resulting in filing of the present writ  petition. It  is contended that the High Court was not  right in  rejecting the claim of the petitioner, on the  ground   that  all   those  cases  which  were  pending consideration, required  to be  decided in  accordance  with Full Bench  judgment of  the High  Court in  OJC No.5361/91, decided on  December 2,  1994. Since  the petitioner’s claim was  already  considered  and  approval  was  given  by  the Director, it  is not a pending case and she must, therefore, be  appointed  as  a  teacher.  We  find  no  force  in  the contention.      It is  seen that  appointment should  be in  accordance with the  Rules to  a post  as defined under Section 2(b) of the Orissa  Education (Recruitment and Conditions of Service of Teachers  and Members  of the  Staff of  Aided  Education Institutions) Rules,  1974. Since the petitioner was working in a  clerical post,  she is not entitled to be approved and the view  taken by  the Director is correct. Admittedly, she was appointed  as a  clerk. While working as clerk, the mere fact that  she was kept in charge of the teaching post, does not confer  any right  to appointment to a post, because she was not  initially appointed  to a  teaching post.  The Full Bench, therefore,  has rightly  interpreted that the initial appointment should be to a teaching post and a clerk, though

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directed to  discharge the duties as a teacher, cannot claim the post  as a  teacher. Consequently,  the earlier Division Bench judgment  of the  High Court  was set aside. Resultant operation was  that all  those cases  which had become final were directed not to be reopened and all those cases pending consideration  either   in  writ   petition  or  before  the authorities were  required to  be dealt  with in  accordance with the  Rules. Though  the  petitioner  was  provisionally given approval  pursuant to the direction issued by the High Court in  the said writ petition, that would be only subject to the  appointment and  since no  appointment could be made and was  in fact not made, the order could not be said to be in accordance  with  the  Rules.  The  provisional  approval granted  by  the  Director  cannot  be  construed  to  be  a ratification of the petitioner’s appointment as teacher. The view of  this Court  in Krishna Chandra v. State of Orissa & Ors.  [CA  No.13755/96]  decided  on  November  1,  1996  is consistent with  the above  view and  is of  no help  to the petitioner. Under  these circumstance,  we do  not find  any illegality in  the order passed by the High Court warranting interference.      The special leave petition is accordingly dismissed.