Orissa High Court: In an application under Articles 226 and 227 of the Constitution of India against an order passed by the Joint Director (Schools), Regional Directorate of Education, Bhubaneswar, wherein it was directed that the selection of the 3rd peon of the school was invalid, Sashikanta Mishra*, J., opined that the impugned order was unsustainable in the eyes of law, thereby allowing the writ petition. It was held that the Regional Director lacked authority, making the State Education Tribunal the rightful adjudicator under Section 10-A and Section 24-B of the Orissa Education Act, 1969, as during the pendency of appeal before the Regional Director, the School was given the status of grant-in-aid and become a non- Government aided educational institution within the meaning of Section 2(b) of the Orissa Education Act, 1969 (Act’).
Background
In the instant matter, the Panchayat High School in Nada was established in 1989. The night watchman-cum-sweeper, on a position of 3rd peon, resigned from service in 1993. Five persons including the present petitioner applied pursuant to the advertisement, issued by the Management for filling up the vacancy and the present Petitioner (3rd peon) was selected. The Managing Committee vide Resolution No. 40 dated 15-05-1993, appointed the petitioner as the 3rd peon and he joined on 22-05-1993. The Inspector of Schools, Mayurbhanj approved his appointment with eligibility to receive grant-in-aid by way of block grant representing 60% of the emoluments in the Revised Scale of Pay Rules, 1998 w.e.f. 01-04-2008. The respondent (4th peon) filed an appeal before the Director, Secondary Education to allow him to function as 3rd peon with all consequential benefits and for declaration that the appointment of the present petitioner was illegal. The Director of Secondary Education, held that the 4th peon was the proper claimant for the post of 3rd peon of the School and any appointment and approval made against the said post was invalid. Hence, the present petition.
Analysis and Decision
The Court noted that the 4th peon was appointed in his post on 03-07-1991. Regarding the question of competence of the Director, Secondary Education to adjudicate the appeal, the Court said that the 4th peon was prevented from performing his duties and signing in the attendance register from 07-07-1995 and he should have challenged the termination before the appropriate forum within the stipulated time, but he woke up from slumber in the year 1998 and preferred the so-called appeal before the Regional Director. The Court clarified that since at the relevant time the School had not come within the fold of the grant-in-aid, the Regional Director was competent to entertain the appeal but then in view of the gross delay, the appeal could not have been entertained. The Court also added that the since the School was given the status of grant-in-aid and become a non- Government aided educational institution within the meaning of Section 2(b) of the Orissa Education Act, 1969 w.e.f. 01-04-2008 i.e. during pendency of the appeal, which was related to the termination of services of the 4th peon by way of refusal of employment as also approval of appointment for the purpose of receiving grant-in-aid, the Regional Director ceased to have jurisdiction and it was the State Education Tribunal, which was the competent forum to adjudicate the matter in terms of Section 10-A and Section 24-B of the Act.
The Court relied on Managing Committee of Mahavir Girls’ High School v. State of Odisha1, wherein, it was laid down that when the institution had become an aided one, during the pendency of the appeal, the appeal cannot be heard by the Regional Director. The law is well settled that an appeal lies against the order of termination of a teacher of an unaided educational institution to the Director and as such once the school was declared as an aided educational institution as defined under Section 2 (b) of the Orissa Education Act, the dispute was required to be agitated before the Orissa Education Tribunal. Thus, the Court held that the Regional Director lacked authority, making the State Education Tribunal the rightful adjudicator under Section 10-A and Section 24-B of the Act.
Hence, the Court held that the impugned order was unsustainable in law.
The Court highlighted on the petitioner’s legitimate appointment process as the 3rd peon, contrasting it with the 4th peon’s invalid appointment to a non-existent post. The Court noted that the 4th peon was appointed earlier, but the school had only three posts according to the rules and when a vacancy occurred, the petitioner/ 3rd peon was chosen through a proper selection process.
Consequently, the Court held that the Director’s decision to prioritize the 4th peon’s seniority and ‘first come first serve’ concept was flawed. This decision led to the overturning of the 3rd peon’s appointment approval without proper justification, lacking legal validity and thus, the writ petition was allowed and the impugned order was quashed.
[Bidyadhar Naik v. Joint Director (Schools), Office of Regional Directorate of Education, 2024 SCC OnLine Ori 1388, Decided on: 01-05-2024]
*Judgment Authored by: Justice Sashikanta Mishra
Advocates who appeared in this case :
Counsel of Petitioner: Advocate Sadasiva Patra
Counsel of Respondents: AGA S.N. Patnaik, Advocate R. Acharya, Advocate J. Biswal
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1. W.P(C) No.16504/2009.
