State Of Orissa & Ors vs Khirod Kumar Nayak

State of Orissa and Ors. ..Appellants

Versus

Khirod Kumar Nayak ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Delay condoned.

2. Leave granted.

3. Challenge in this appeal is to the order of a Division Bench of the

Orissa High Court. Factual background can be adumbrated concisely as

follows:

4. The responded no.1 filed a writ application being OJC No.6857 of

1996 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.

5. The High Court by the impugned judgment in writ application 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 who can be appointed was

clearly spelt out. Only if the roll strength of the institution exceeded a

2 particular number, one post of "Daftry" was admissible. According to the

State Government the post of "Daftry" is a promotional post and, therefore,

the concept of a "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 "Daftry" and held the

claim of the writ petitioner warranted acceptance.

6. In support of the appeal, 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 "Daftry" is a promotional post and it carries higher

scale of pay. That being the position, the last entrant cannot claim the post

of the "Daftry".

7. Per contra, learned counsel for the writ petitioner 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.

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

yardsticks were formulated. Government of Orissa, Education & Y.S.

3 Department, issued Circular No. 28365-EYS dated 8.7.1981 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 Daftry is admissible.

......."

9. 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

4 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 Daftry 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 January 1992 and Government order referred to above stands modified to the extent indicated above."

10. 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.

11. It is fairly accepted by learned counsel for the writ petitioner that the

expression used in the two circulars is "Daftry" and not "fourth peon". The

High Court seems to have fallen in error by proceeding on the basis as if the

5 circulars referred to "fourth peon". This is clear from the reading of the

various judgments impugned in this appeal.

12. It is to be noted that post of "Daftry" 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 petitioner's services

as "fourth peon". But one significant aspect cannot be lost sight of. If a

school was entitled to have a "Daftry", 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 claim of the writ petitioner could have been

considered by the authorities, on being appropriately moved by the

management. It is undisputed that the writ petitioner was appointed by the

managing committees', may be under a misreading of the relevant

government orders.

13. We, therefore, while allowing this appeal 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

6 "Daftry". Simultaneously, it can also recommend for appointment to the

class IV post, in case approval is accorded to the recommendation for

appointment of "Daftry" 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 appointments were made. Even if there has

been refusal earlier, the matter shall be reconsidered in the light of what has

been stated above.

14. 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 judgment.

Learned counsel for the respondent (writ petitioner) fairly accepted that it is

so. In fact, copy of one such decision dated 15.7.1996 in O.J.C. 5108/96

was placed on record and it has been brought to the notice of the learned

Judges hearing the writ petition.

15. The appeal is allowed in the aforesaid terms, leaving the parties to

bear their respective costs.

........................................J. (Dr. ARIJIT PASAYAT)

7 ........................................J. (ASOK KUMAR GANGULY) New Delhi, February 23, 2009

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