Case Brief
Pabitra Mohan Dash Etc. v. State Of Orissa and Ors. – (2001) 2 SCC 480
Deciding Authority
Supreme Court
Name of the Judges
G.B.Pattanaik, B.N.Agarwal JJ.
Date of Judgment
4th January 2001
Facts of the Case
Appeals were directed against a Special Bench judgment of the Orissa High Court dated 25th January, 1999. By the said judgment some of the directions contained in the earlier Full Bench decisions had been set aside. The appellants, who were Head Masters of different Private Schools, and those schools became later on Aided Educational Institutions, and finally became full fledged Government schools, were aggrieved by the impugned judgment of the Orissa High Court as in implementation of the said judgment they could not be continued as Head Masters.
Prior to the enactment of the Orissa Education Act, 1969 (hereinafter referred to as “The Act”), the educational activities in the State of Orissa were being regulated through a collection of executive instructions issued by the Government from time to time and those instructions had been embodied in a Code, called ‘Education Code’.
The Act intended to establish a Board to regulate control and develop secondary education in the State of Orissa. The Board is a body corporate with perpetual succession and a common seal. Regulation 17 deals with the conditions to be fulfilled before permission is granted to open certain classes and for a school with class IX and above it must have a Head Master who has to be a trained graduate in arts or science with minimum 7 years’ experience after training. It is this condition prescribed under the Regulation for being appointed as Head Master of an aided educational institution which is the subject matter of controversy in the impugned case and was the subject matter of controversy in the cases where earlier Full Bench of the High Court had taken some decisions which stood reversed by impugned judgment of the Special Bench of Orissa High Court. In exercise of power under Section 27 of the Act a set of Rules have been framed, called, the Orissa Education (Recruitment and Conditions of Service of teachers and principals and staff of Aided Educational Institution) Rules, 1974 (hereinafter referred to as ‘the Recruitment Rules).
Rule 8(3) is the procedure for filling up the post of Head Master and Head Mistress of schools. It may be noticed that Regulation 17 providing the qualification of the staff, as aforesaid, came into force on 29.4.1977 and Rule 8(3) of the Recruitment Rules came into force on 3.5.1988. The provisions of the aforesaid Acts, Regulation and Rules are complimentary to each other and are essentially intended to confer powers on the Educational Authorities of the Government to exercise control over the management of the institutions and also provide conditions of service of the employees so that the management will not be free to have any person as the employee of the institution nor would it be free to terminate the service of the employee whenever it likes, even though the power of the Management vest with the Committee of the Management of the school.
Rule 8 of the Recruitment Rules, however, provides exception to the selection by the Board and Rule 8(3) of the said Rules provides the procedure for filling up of the vacancies in the post of Headmaster and the aforesaid Rule 8(3) came on 3.6.1988.
Since the provisions of the Regulation, Act and the Rules are complimentary to each other, it must necessarily be held that no school can have a Headmaster after 29.4.1977 that does not possess the qualification of 7 years of teaching experience as a trained graduate teacher. Right of such people to continue as Headmaster came to be considered in the First Full Bench Judgment in the case Golakh Chand Mohanty vs. State of Orissa and A Batch of Writ Petitions subsequent to the aforesaid Full Bench decision in Golakh Chand Mohanty’s case were listed before a Division Bench, the Division Bench felt that by applying the ratio of the Full Bench decision in Golakh Chand Mohanty’s case great harassment would be caused to all those teachers who had been appointed as Headmasters of different un-aided schools when there was no such embargo or requirement of 7 years of teaching experience as trained graduate teacher was there and consequently, Golakh Chand Mohanty’s case may be reconsidered. These batch of cases were heard by the subsequent Full Bench and the subsequent Full Bench came to the conclusion that the decision in Golakh Chand Mohanty’s case does not need re-consideration, as has been noticed in paragraph 4 of the impugned judgment of the Special Bench.
It is these conclusions of the Special Bench which were heard in these appeals.
Judgment
Mr. Ranjit Kumar, learned counsel appearing for the appellant in C.A. 3190 of 1999 contended with force that the earlier Full Bench in Golakh Chandra Mohanty’s case having considered the relevant provisions of the Act, Regulation and Rules framed thereunder and having issued Five directions which were re- affirmed by the Second Full Bench judgment and those judgments not being assailed by the State or any other aggrieved party, benefit accrued to the persons pursuant to the said judgment cannot be taken away by the subsequent Special Bench judgment which is being impugned in these appeals. He further contended that the provisions of the Orissa Education Code having continued to remain in force so far as private schools are concerned, and there being no requirement under the Orissa Education Act, 1969, or the Recruitment Rules framed thereunder of the year 1974 that the Headmaster must be a trained graduate with 7 years of teaching experience as a trained graduate, the headmasters of private schools later on cannot be deprived of that right when the school becomes aided school or the government school. Therefore he contended that the judgment of the Special Bench on that score cannot be sustained.
Mr. J.R. Das, the learned counsel appearing for the State of Orissa, Mr. P.N. Mishra, learned senior counsel appearing for some of the interveners and Mr. Sanyal, learned senior counsel appearing for another set of interveners on the other hand contended, that the latter Full Bench while hearing the batch of cases having felt it necessary to re-examine the correctness of the observations made in the Golakh Chandra Mohanty’s case and for that purpose having constituted a larger Bench of 5 Judges, the contention that it had no jurisdiction to go into the matter is wholly unsustainable.
The court observed that the Special Bench rightly thought it appropriate to reconsider the entire matter afresh and re-determine the issues involved in the light of the relevant provisions of the Act, Rules and Regulations after hearing at length on all issues and there was no infirmity on that score even though the point of reference was of a limited nature. Courts exist to interpret the law and while examining the provisions of any Act, Rule or Regulation, if it is felt that the earlier decision on the question is not clear on any particular issue or has created confusion in resolving the disputes or has caused hardship to a group of people, it would be the duty of the court to re- examine the matter after giving opportunity to all parties concerned and by such process question of taking away anybody’s vested right does not arise.
In the case in hand it is not a particular writ or order that had been issued in favour of any individual is sought to be nullified by the subsequent Special Bench decision. That apart, though point of reference may be of a limited nature but in answering the same if the Court feels that it would be in the interest of justice to constitute a larger Bench and examine the correctness of any earlier conclusion which might have been made on an erroneous interpretation of any provision, then there would be no fetter for adopting that procedure.
The court observed that it is not disputed that with effect from 29.5.1977 Regulation 17 in the Board of Secondary Education has been brought into force which makes it obligatory for every institution to have a Headmaster who must be a trained graduate and must have 7 years of teaching experience as a trained graduate teacher. If subsequent to 29.5.1977 any appointment has been made to the post of Head Master contrary to the aforesaid provisions of the Regulation then the said appointment would be invalid appointment and would not confer any right on the appointee. The expression ‘approval’ used in the second direction in Golakh Chandra Mohanty’s case is referable to the approval contemplated under Rule 8(2)(b) of the Recruitment Rule and, therefore, if there has been an approval by the Director then in such a case the appointment made after the prior approval would not be invalidated. The court remarked that the conclusion of the Special Bench that an approval of the Inspector is no approval in the eye of law is the correct position, and as such, does not require any interference by this Court. It was further clarified that a person who has been appointed as Headmaster incharge cannot claim any right on the basis of that appointment even if the same might have been approved by any Competent Educational Authority. The Incharge Headmaster is not the same as the Headmaster of the school and it merely entitles a person to remain incharge and discharge the duties of a Headmaster. In this view of the matter where the appointment itself has been to the post of Headmaster as in-charge, and such appointment had been approved, obviously the said appointee cannot claim to be continued as Headmaster or to be entitled to get the scale of pay attached to the post of Headmaster. The Special Bench in the impugned judgment has correctly analysed the different provisions of the Rules and Regulations and have rightly come to the finding on the directions 2, 3, 4 and 5 of the earlier Full Bench decision in Golakh Chandra Mohanty’s case. In the aforesaid premises, the Hon’ble Court did not find any infirmity with the conclusions arrived at by the Special Bench requiring interference by this Court.
Decision
The appeals failed and were dismissed.
Shubham Shandilya, 4th Year, B.B.A. LL.B., Symbiosis Law School, Pune
A COMPREHENSIVE WEBSITE FOR ALL LEGAL DEVELOPMENTS