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PETITIONER: SRI RABINARAYAN MOHAPATRA

       Vs.

RESPONDENT: STATE OF ORISSA AND ORS.

DATE OF JUDGMENT02/04/1991

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) MISRA, RANGNATH (CJ) KANIA, M.H.

CITATION:  1991 AIR 1286            1991 SCR  (1) 990  1991 SCC  (2) 599        JT 1991 (2)    82  1991 SCALE  (1)578

ACT:      Orissa  Aided Educational Institution  (Appointment  of Teachers   Validation)   Act,   1989-Section   3-Legislative intention  of -Appointment of teacher on 89 day  basis  with one day break-Discriminatory.      Orissa  Aided  Education  Institutions (Appointment  of Teachers    Validation)   Act,1989-Section    3-Scope    and application of - Conditions to be satisfied.

HEADNOTE:      The  appellant  was appointed as Hindi Teacher  in  the M.E. School for a period of 89 days from July 12,1982 by the District  Inspector (Schools) on the recommendation  of  the Managing Committee of the School. He continued to serve  the school  with repeated spells of 89 day-appointments and  one day  break in between the spells, till may 25, 1986. He  was not  paid  the  salary for the period  of  summer  vacations during all these years.      Although the appellant continues to serve the school to date  under  orders  of  the  managing  committee,  but  his appointment  after 1986 was not approved by the  educational authorities,  in  spite of the resolution  of  the  managing committee dated July 6,1987.      The  appellant  filed a writ petition before  the  High Court claiming regularisation with effect from July 12,1982, contending that he was entitled to be regularsed in terms of the provisions of Section 3 of the Orissa Aided  Educational Institutions (Appointment of Teachers Validation) Act, 1989.      The High Court dismissed the petition holding that  the appellant was not entitled to the benefit of the  Validation ACt, against which present appeal was filed by the appellant contending  that  his services were to be  regularised  with effect from July 12, 1982 under the provisions contained  in Section 3 of the Validation Act.      Allowing the appeal, this Court,                                                        991      HELD:1.1.  The Validation Act has been enacted  by  the Orissa  Legislature  with  the obvious  object  of  granting relief  to those members of the teaching community  who  are being exploited for years together by keeping them in  short

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spell  appointments  like 89 day-appointments with  one  day break  and in the process denying them their  rightful  dues and other service benefits.[994G-995A]      1.2  An appointment on 89 day basis with one day  break which  deprives  a teacher of his salary for the  period  of summer-vacation  and  other  service  benefits,  is   wholly arbitrary  and suffers from the vice of discrimination.  The Validation Act covers the field upto December  31, 1984. The State  of Orissa will do well to consider the cases  of  all those who have completed one year or more as ad-hoc teachers after  December  31,1984 and come-out with a scheme  or  any other    appropriate    measure    to    regularise    their services.[995C-D]      2.  To come with in the preview of the  Validation  Act the following conditions are to be satisfied:      1.  The  appointment by the managing authority  of  the school on ad hoc basis must be on or after the 1st  December 1976 but not later than 31st December 1984.      2.  The  services as such teacher is continuous  for  a period  of  at least one year without any break  or  with  a break or breaks in one or more aided schools;      3.  Is continuing as such teacher or his services  were terminated   after   the  31st  December  ,1984   save   for misconduct.[995E-G]      2.2.  The appellant was appointed on July  12,1982  and has  been working with the approval of the  authorities  for almost 4 years with short breaks. The managing committee  is still utilising his services though there is no approval  by the  educational  authorities for the period  subsequent  to 1986.  The case of the appellant is, thus, fully covered  by Section 3 of the Validation Act.[995G-996A]      3.  The High Court erred in denying the  benefit of the Validation  Act  to  the appellant on the  ground  that  his initial  appointment  for  89 days was  conditioned  by  the stipulation  that  he  would continue until  replaced  by  a candidate from the select list. The High Court read into the Act what  was not there,[996A-B]                                                        992      Rattan  Lal v. State of Haryana, A.I.R. 1987 S.C.  478, followed.

JUDGMENT:      CIVIL APPELLATE JURISDICTION:  Civil Appeal No.1396  of 1991.      From  the  Judgement and Order dated  8.3.1990  of  the Orissa High Court in Case No. 2867 of 1987.      Mrs. Uma Metha Jain and M.A. Firoz for the Appellant.      Ashok Kumar Panda for the Respondents.      The Judgement of the Court was delivered by      KULDIP SINGH, J. Special leave granted.      Rabinarayan  Mohapatra the appellant was  appointed  as Hindi  Teacher  in Bani-gochha, M.E. School (Orrisa)  for  a period of 89 days or till a candidate selected by the  State Selection Board was made available. He joined the school  on July  12,  1982. The appointment was made  by  the  District Inspector  (Schools) on the recommendation of  the  managing committee  of the school. He continued to serve  the  school with  repeated  spells of 89 day-appointments  and  one  day break  in between the spells, till May 25, 1986. He was  not paid  the salary for the period of summer  vacations  during all  these  years. Although the period  of  summer  vacation during all these years. Although the appellant continues  to serve  the  school  to-date under  orders  of  the  managing

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committee  yet  his  appointment after  1986  has  not  been approved  by  the  educational  authorities.  The   managing committee   even  passed  a  resolution  on   July   6,1987, requesting  the  educational  authorities of  the  State  of Orissa   to  approve  the  continuous  appointment  of   the appellant  as Hindi Teacher but no action was taken  by  the said authorities.      The  appellant filed a writ petition under Article  226 of  the Constitution of India before the Orissa  High  Court claiming  regularisation as Hindi Teacher with  effect  from July 12,1982. The only argument raised before the High Court was  that  the appellant was entitled to be  regularised  in terms  of  the provisions of Section 3 of the  Orissa  Aided Educational    Institutions   (Appointment    of    Teachers Validation)  Act, 1989 (hereinafter called  ’the  Validation Act’).  The  relevant  part  of Section  3  of  the  Act  is reproduced hereinafter :          3. Validation of certain appointments - Not          withstanding                                                        993                    anything  contained in the Education  Act          or in the Rules or Regulations framed thereunder.-               (a)   graduate   teacher,   intermediate   and          matriculate  teachers, physical education  teachers          and classical teachers and Hindi teachers of  aided          schools  appointed by the managing  authorities  of          such  schools on ad hoc basic on or after  the  1st          December  ,  1976  but  not  later  than  the  31st          December, 1984;          (b) ..............          (c) ...............          who  have  continuous service as such  teachers  or          lecturers for a period of at least one year without          any break or with a break or breaks in one or  more          aided schools or Colleges and who are continuing as          such   teachers   or  whose  services   have   been          terminated  after the 31st December ,1984 save  for          misconduct   or..................shall   for    all          intents  and  purposes,  be  deemed  to  have  been          validly  and  regularly  appointed,  and  no   such          appointment shall be challenged in any court of law          merely on the ground that the appointment was  made          otherwise  than in accordance with  procedure  laid          down  in  the  Education  Act  and  the  Rules  and          Regulations                                  framed          thereunder;..............................      The High Court rejected the prayer for  regularisation, and held that the appellant was not entitled to the  benefit of the Validation Act, on the following reasoning;                    "Admittedly, the petitioner was appointed          on  12.7.1982  and continued  till  18.7.1986  with          breaks in between and the petitioner’s  appointment          was  conditioned by the stipulation that  he  would          continue  until  replaced by a candidate  from  the          Select  List.  His case, therefore, will  not  come          within  the  preview  of the  Validation  Act  and,          therefore, the question of issuing any direction to          regularise  his  service in a  substantive  vacancy          because of the Validation Act does not arise."      We  have heard Mrs. Uma Mehta Jain, learned counsel for          the  applellant. This Court in Rattan Lal v.  State          of  Haryana. A.I.R. 1987 S.C. 478 speaking  through          Venkataramaiah, J. (as the learned Judge then was )          observed as under:                                                        994

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                  "The  State  Government  of  Haryana  has          failed  to discharge that duty in these  cases.  It          has been appointing teachers for quite some time on          an  ad hoc basis for short periods as stated  above          without  any justifiable reason. In some cases  the          appointments  are made for a period of  six  months          only  and  they are renewed after break  of  a  few          days.  The  number  of teachers  in  the  State  of          Haryana who are thus appointed on such ad hoc basis          is  very  large indeed. If the  teachers  had  been          appointed regularly, they would have been  entitled          to  the benefits of summer vacation along with  the          salary  and allowances payable in respect  of  that          period and to all other privileges such  as  casual          leave,   medical   leave,  maternity   leave   etc.          available  to  all the Government  servants.  These          benefits  are  denied  to  these  ad  hoc  teachers          unreasonably  on account of this pernicious  system          of  appointment  adopted by the  State  Government.          These  ad hoc teachers are unnecessarily  subjected          to  an arbitrary ‘hiring and firing’ policy.  These          teachers  who constitute the bulk of  the  educated          unemployed are compelled to accept these jobs on an          ad hoc basis with miserable conditions of  service.          The  Government  appears  to  be  exploiting   this          situation. This is not a sound personnel policy. It          is  bound  to  have serious  repurcussions  on  the          education  institutions and the  children  studying          there.  The policy of ‘ad hocism’ followed  by  the          State  Government for a long period has led to  the          breach  of Article 14 of the Constitution.  Such  a          situation  cannot be permitted to last any  longer.          It is needless to say that the State Government  is          expected to function as a model employer".                    "We strongly deprecate the policy of  the          State Government under which ‘ad hoc’ teachers  are          denied  the salary and allowances or the period  of          the  summer vacation by resorting to the  fictional          breaks  of  the type referred to above.  These  ‘ad          hoc’  teachers shall be paid salary and  allowances          for  the period of summer vacation as long as  they          hold  the  office under this order. Those  who  are          entitled  to maternity or medical leave shall  also          be  granted  such  leave  in  accordance  with  the          rules."      The  Validation  Act  has been enacted  by  the  Orissa legislature   with the obvious object of granting relief  to those members of teaching community who are being  exploited for years together by keeping                                                   995 them in short spell appointments like 89 day-appointments as here  with  one day break and in the  process  denying  them their  rightful-dues and other service benefits. Inspite  of repeated  depreciation by this Court the practice  continues to be followed by various State Governments in the  country. Under  the  Constitution the State is  committed  to  secure right to education for all citizens. Bulk of our  population is yet illiterate. Till the time illiteracy is effaced  from the country the resolution enshrined in the Preamble  cannot be  fulfilled.  Education is the dire need of  the  country. There  are  neither enough schools nor  teachers  to  teach. Insecurity  is  writ-large  on  the  face  of  the  teaching community because of nebulous and unsatisfactory  conditions of service. In order to make the existing educational set-up effective and efficient it is necessary to do away with  ad-

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hocism  in teaching appointments. An appointment on  89  day basis  with  one day break which deprives a teacher  of  his salary  for the period of summer-vacation and other  service benefits,  is wholly arbitrary and suffers from the vice  of discrimination.  The  Validation Act covers the  field  upto December  31,  1984.  The State of Orissa will  do  well  to consider the cases of all those who have completed one  year or  more  as ad-hoc teachers after December,  31,  1984  and come-out  with a scheme or any other appropriate measure  to regularise their services.          Mrs.  Jain contended that on the plain  reading  of          Section  3 of the Validation Act the  appellant  is          entitled  to be regularised as Hindi  Teacher  with          effect  from  July  12,1982.  To  come  within  the          purview   of  the  Validation  Act  the   following          conditions are to be satisfied:               1.  The appointment by the managing  authority          of  the school on ad hoc basis must be on or  after          the  1st  December, 1976 but not  later  than  31st          December, 1984;               2.  The service as such teacher is  continuous          for a period of atleast one year without any  break          or  with  a break or breaks in one  or  more  aided          schools;               3.  Is  continuing  as  such  teacher  or  his          services  were terminated after the 31st  December,          1984 save for misconduct.      The apellant was appointed on July 12,1982 and has been working  with  the approval of the authorities for almost  4 years  with  short breaks. The managing committee  is  still utilising  his services though there is no approval  by  the educational  authorities for the period subsequent to  1986. It is no body’s case that his services were                                                        996 ever  terminated on grounds of inefficiency  or  misconduct. The case of the appellant is, thus, fully covered by Section 3  of the Validation Act. We are of the view that  the  High Court erred in denying the benefit  of the Validation Act to the appellant on the ground that his initial appointment for 89  days  was conditioned by the stipulation that  he  would continue until replaced by a candidate from the select list. The  High  Court read into the Act what was  not  there.  In response to the notice issued in the Special Leave  Petition the managing committee through its Secretary-cum-Head Master has  stated that the appellant is still continuing to  serve as  Hindi  teacher  in the school under the  orders  of  the managing committee.      We therefore, set aside the judgment of the High Court and  direct  the respondents to treat the appellant  as  the regularly appointed Hindi teacher  in the school with effect from July 12, 1982. The appeallant shall be entitled to  his salary, including the salary for summer vacations and  other breaks which must be taken as non est, from the date of  his regular appointment i.e. July 12, 1982. The respondents  are directed  to pay the arrears of salary and other  emoluments due  to  the  appellant as a result  of  his  regularisation within a period of 3 months from today. V.P.R.                                        Appeal allowed,