HIGH COURT OF ORISSA: CUTTACK
RVWPET No.48 of 2010
In the matter of an application for review of the order dated 03.12.2009 passed by this Court in W.P.(C). No.12585 of 2004. ----------
Son of Upendra Das,
Village: Damando, PO: Bhagabanpur,
PS : Nemalo, Dist : Cuttack ... Petitioner. -Versus-
State of Orissa & others ... Opp. Parties For Petitioner : M/s P.K. Padhi, P.K.Panda, D.K.Nayak & S.Nayak
For Opp. Parties : Standing Counsel for School & Mass Education
(For O.Ps. 1 to 4)
(For O.P. No.5)
R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Heard and disposed of: 09.09.2011
B.N.Mahapatra,J. This Review Petition has been filed with a prayer to review the order dated 03.12.2009 passed in W.P.(C). No.12585 of 2004 and for de novo hearing of the above writ petition.
2. While the Review petition was being heard, learned counsel for the parties appearing in the writ petition were directed to make submission 2
on merits, as prima facie case for review of the order passed in W.P.(C). No.12585 of 2004 was made out by the petitioner.
3. The case of the review petitioner in a nutshell is that he was appointed as an Assistant Teacher in Chandra Sekhar High School, Damando, PO: Bhagabanpur, Cuttack on 06.07.1989. While continuing as such, the services of the petitioner had been terminated on a false allegation that he had resigned from service on 06.07.1993 though he had never tendered any resignation which found support from the report of the Inspector of Schools, Cuttack Circle, dated 12.08.2003 in which the Inspector of Schools reported that the resignation of the petitioner had not been mentioned in the Renewal of Recognition form submitted on 29.07.1993 up to 1993-94. Subsequently, one Sri Trilochan Parida and another Smt. Mamata Swain were appointed as Assistant Teachers in the said School while the petitioner was continuing. Consequent upon the alleged resignation of Sri Parida, the petitioner was again appointed as Assistant Teacher on 09.11.1997 in order to regularize the matter. While working as Assistant Teacher in the said High School, the petitioner applied for sponsoring his name for undergoing B.Ed. training as an in-service candidate. As the said representation was not considered, he approached this Court in OJC No.7845 of 1999. The said writ petition was disposed of on 02.07.1999, wherein it was held that the session for taking admission in B.Ed. course, i.e., 1998-99 having already been ended no effective order 3
could be passed. However, it was observed that for the next session, i.e., 1999-2000 the case of the petitioner along with others shall be considered keeping in mind his seniority and eligibility. In the year 1999, petitioner applied to the school authorities to relieve him so that he could take admission for the B.Ed. course and by order dated 07.07.1999 the Managing Committee certified that they have no objection to relieve the petitioner for undergoing B.Ed. training. However, two days thereafter, i.e., on 10.07.1999 his services were terminated; consequently he could not take admission in B.Ed. course. The Managing Committee did not allow the petitioner to perform his duty as he was untrained for which the petitioner preferred an appeal before the Director of Secondary Education in Appeal Case No.59 of 2000. The Director rejected the prayer of the petitioner on the ground of limitation and that the petitioner had not acquired B.Ed. qualification. The said order of the Director was challenged in W.P.(C) No.12585 of 2004. This Court vide order dated 03.12.2009 upheld the order of the Director, Secondary Education on the ground that the said order does not suffer from any infirmity or illegality. Hence, the present review petition.
4. Mr.Padhi, learned counsel appearing for the review petitioner submits that the order passed in the writ petition is not sustainable in law. In view of the decision of this Court in Bibekananda Das V. State of Orissa & Ors., 1997 (II) OLR 122 wherein it is held that teachers in High Schools 4
appointed prior to 1993 are not necessarily required to be trained graduate. Alternatively, Mr.Padhi relying on the decision of this Court in Manmohan Tripathy V. State of Orissa & Ors., 1999 (II) OLR 185 submits that this Court should have directed the concerned authorities to take necessary steps to enable the petitioner to acquire B.Ed. qualification in view of the fact that the petitioner by 2000 had rendered more than 11 years of service. Since the appellate order was passed on 12.08.2003 and the petitioner filed W.P.(C) No.12585 of 2004 on 18.11.2004 there was no delay of four years in approaching this Court as observed by this Court in the order sought to be reviewed. The Hon'ble Court should not have taken any adverse view for not annexing the order of termination to the writ petition, as no such order was served on the petitioner. The Managing Committee did not allow the petitioner to perform his duties on 10.07.1999 against which he filed an Appeal Case No.59 of 2000. The petitioner was relieved from service for undertaking training on 07.07.1999 by which time academic session of B.Ed. course had already been started.
5. Learned Standing counsel for School and Mass Education Department submits that there is no infirmity or illegality in the order passed by the opposite parties. Learned counsel Mr.B.B.Mohanty appearing for opposite party No.5 submitted that opposite party No.5 has been appointed after following due process of selection and he has acquired 5
B.Ed. qualification. Therefore, his interest should be protected by this Court.
6. On the rival contentions advanced by the parties the only question that arises for consideration by this Court is as to whether the termination of service of the petitioner on the ground that he is an untrained teacher is illegal and only a graduate having B.Ed. qualification is eligible to be appointed as a teacher in High School.
7. Facts which are not disputed in this case are that the petitioner was appointed in the year 1989 and his service was terminated in the year 1999, i.e., after rendering 10 years of service in the School in question. In Bibekananda Das's case (supra) this Court held that teachers appointed prior to 1993 cannot be terminated for not acquiring B.Ed. qualification. Moreover, a teacher having ten years experience is no way less than a trained teacher. It is nobody's case that he was an inefficient teacher. Apart from this, this Court in Manmohan Tripathy's case (supra) though held that untrained teachers cannot be freely appointed on their will except under unavoidable circumstances justifying appointment of untrained teachers such as non-availability of suitable trained graduate persons in spite of reasonable efforts being made, directed the concerned authorities to provide necessary facilities and opportunities to the petitioner therein to enable him to obtain the B.Ed. qualification. 6
While deciding the petitioner's writ petition, this Court has not taken into consideration the judgment of this Court in Bibekananda Das's case (supra) wherein this Court held that an Assistant Teacher in a High School appointed prior to 1993 was necessarily not required to be a trained graduate and that the petitioner had served as a teacher for ten years before his termination.
8. In view of the above, we direct the opposite parties to reinstate the petitioner in the post of Assistant Teacher in the Chandra Sekhar High School, Damando with immediate effect but without any financial benefits and provide necessary facilities and opportunities to the petitioner to enable him to obtain B.Ed. qualification. The private opposite parties need not be displaced if any of them is appointed in the place/post of the petitioner, on account of this order. The petitioner can be made to work against the other vacant post or supernumerary post until the vacancy of post occurs.
9. In the result, Review Petition is allowed and W.P.(C) No.12585 of 2004 filed by the review petitioner is also allowed with the aforesaid observation/direction to the opposite parties.
Orissa High Court, Cuttack
Dated 9th September, 2011/ssd/sss/skj