Prahallad Chandra Das vs State of Orissa and Others

R.N. Misra, J.—Petitioner is a teacher in the employment of the Cuttack Municipality having joined service as an Assistant Teacher in the City High School on 13-9-1958. On 24-7-1970, he was promoted as Headmaster of the Municipal proposed High School at Mansinghpatna and came to be reverted again as an Assistant Teacher of the City High School with effect from 26-11-1973. A vacancy arose in the post of Headmaster of the Municipal High School and a Selection Committee was appointed u/s 75 of the Municipal Act read with Rule 426 of the Orissa Municipal Rules of 1953. At the relevant time, the Municipal Council had been superseded and the functions of the Chairman as also the Council vested in the District Magistrate of Cuttack. The Selection Committee consisted of the District Magistrate, an Additional District Magistrate, the Inspector at Schools and the Executive Officer of the Municipality. Cases of six teachers including the Petitioner''s were considered in the meeting held on 18-9-1975 and Petitioner was selected for the post. Accordingly order of appointment was issued in his favour on 22-9-1975. One of the aspirants Sri S.P. Misra represented to the State Government against the selection and the State Government set aside the appointment of the Petitioner by order dated 26-2-1976 (Annexure-3). Petitioner moved this Court in O.J.C. No. 315 of 1976, but during the pendency of the said writ application a fresh selection was held by the Council and on 8-6-1976. Petitioner was again selected and was issued with an order of appointment on 17-6-1976. Thereupon he withdrew the writ application. The said Sri S.P. Misra again represented to the State Government against the appointment and the selection was vacated. Petitioner has filed this writ application challenging the Government Order on the basis of which the order in Annexure-1 which runs to the following effect was made:

In pursuance of Urban Development Department Letter No. 23797/UD, dated 29-8-1977, Sri P.C. Das, Headmaster, Municipal High School, Mansinghpatna is reverted to the post of Asst. Teacher in the scale of pay of Rs. 400/- to 620/- and posted as such in the City High School, Rajabagicha with effect from 8-9-1977 F.N. vice Sri S.P. Mishra transferred....

According to the Petitioner, the aforesaid order is without any foundation and is not sustainable in law.

The State of Orissa has filed a counter affidavit supporting its own action while the Cut tack Municipality and the District. Magistrate being opposite parties 2 and 3 have filed a counter affidavit through the Executive Officer supporting the selection of the Petitioner.

In the counter affidavit of the State under Secretary to Government in the Urban Department, it has been pleaded:

The Petitioner, however, was selected for the second time by the Selection Committee in its meeting held on 8-6-1976 for promotion as Headmaster of the High School. He was promoted as Headmaster of the given by the Development High School, in Municipal Order dated 17-6-1976. On the representation of Sri S.P. Mishra as stated above, Government again reviewed the case under Rule 426 of Orissa Municipal Rules and found that this time also the Selection Committee was not properly constituted u/s 75 of the Orissa Municipal Act and also the C.C. Rs. were not properly maintained. So on the basis of the advice of the Law Department as stated above order of Government was obtained on 22-7-1977, setting aside the promotion of the Petitioner and this order was communicated to the Executive Officer of Cuttack Municipality in Government Letter No. 20740- UD, dated 23-7-1977 and No. 21368 UD, dated 29-7-1977....

Admittedly the State Government has superseded the Cuttack Municipal Council in exercise of powers u/s 402 of the Orissa Municipal Act (hereinafter referred to as the ''Act''). Sub-section (5) of Section 402 provides:

The provisions of Sub-section (5) of Section 401 shall apply so far as may be in regard to the exercise and discharge, during the period of supersession of a municipal council under Sub-section (1) or (4) or suspension thereof under the proviso to Sub-section (2) of all or any of the powers and duties of the municipal council and its Chairman.

Sub-section (5) of Section 401 provides:

During any interval between the dissolution and the reconstitution of a municipal council directed under Sub-section (1) all or any of the powers and duties of the municipal council and its Chairman may be exercised and discharged, as far as may be, and to such extent as the State Government may determine by such person or persons as the Government appoint in that behalf, and any such person who is not a District Magistrate or Sub-Divisional Officer may, if the State Government so direct, receive such payment for his services from the municipal Fund as may be determined by them.

In exercise of the aforesaid powers, the following notification was made by the State Government on 28-5-1975 published in the Extraordinary Issue of the Orissa Gazette of the date:

S.R.O. No. 323/75 Whereas in the notification of the Government of Orissa in the Urban Development Department No. 12570, dated the 28th May, 1975, the Council of Cuttack Municipality in the district of Cuttack has been suspended under the proviso of Sub-section (2) of Section 402 of the Orissa Municipal Act, 1950 (Orissa Act 23 of 1950);

Now, therefore, in exercise of the powers conferred under Sub-section (5) of Section 402 of the said Act, the State Government do hereby appoint the District Magistrate, Cuttack, to exercise the powers and discharge the duties of the Municipal Council and the Chairman of the said Municipality, with effect from the 29th May, 1975 until further orders.

Thus all the powers of the Council and the Chairman vested in the District Magistrate.

Section 75 of the Act provides:

Scale of establishment and appointment and dismissal of officers and servants:

Subject to the scale of establishment u/s 73, the selection committee consisting of the Chairman and a councillor of the municipal council elected for this purpose and the Executive Officer, the Engineer or the Health Officer, as the case may be shall have power to select such persons as they may think fit from time to time, such persons shall thereupon be appointed by the Chairman:

Provided that....

Provided further that....

Section 92 of the Act provides:

Delegation of powers: Subject to any restrictions that the municipal council may impose, the Chairman may by an order in writing delegate any of his functions to any officer or servant of the municipal councilor to any officer or servant of Government and may in like manner withdraw or modify the same.

For the purpose of the second Selection Committee held on 8.6.1976 the District Magistrate and Chairman of the Cuttack Municipality made the following delegation:

I, Shri S.R. Pal, I.A.S., District Magistrate and Chairman, Cuttack Municipality and the Council conferred on me do hereby delegate my function as Presiding Officer of the Selection Committee to be held on 8-6-1976 for selection of Headmaster of Municipal High School, Primary School Teachers and Watchmen for the Cuttack Municipality to Shri P.N. Kar, O.A.S. (1), Additional District Magistrate, Cuttack.

It is on the basis of such delegation that the Selection Committee was constituted consisting of Shri P.N. Kar as Chairman, Sri R.K. Mohanty, Inspector of Schools and Sri K.K. Ghosh, Executive Officer as members.

In view of the fact that the powers of the Chairman and Council vested in the District Magistrate in the manner already indicated, and the Statute authorised delegation of the function of presiding over the Selection Committee and the District Magistrate qua Chairman and the Council did delegate his function to Sri P.N. Kar, we do not find any scope for the view that the Selection Committee had not been duly constituted. It is not the case of the State and it has not been contended before us nor papers produced to support such contention that there was any existing bar by the Council against delegation of the function of Chairman of Selection Committee. All the powers of the Chairman had vested in the District Magistrate and the District Magistrate was not a delegatee of any powers so as to suffer from the normal rule of a delegatee not being able to delegate his powers to another. Once he was Chairman, in view of the provisions of the Statute, he was entitled to the benefit of Section 92 of the Act and in exercise of that power, he made the delegation. The first ground raised by the State Government for striking off the selection on the second occasion is thus wholly unsustainable.

The other aspect for examination is the stand of the State Government that the Confidential Character Rolls had not been properly maintained, Rule 418 of the Orissa Municipal Rules provides for maintenance of character roll. The Rule before amendment ran thus:

In addition to a service book, a character roll shall be maintained in Form E-2 by the Executive Officer, District Inspectors of Schools, Municipal Engineer and Health Officer for each employee working under him in the appended form in which shall be entered censures, punishments and Commendations. Adverse remarks against an employee, if any, which are remarkable may be communicated to him. The character-roll shall be a yearly report on the work of an employee and shall be maintained by the Head of the Department, namely, Executive Officer, Health Officer, Municipal Engineer. The District Inspector of Schools shall for this purpose be Head of Department for municipal managed schools. Every year in the month of April, the Head of the Department shall enter his report on the work of each employee under him in regard to the preceding year. The report shall be forwarded by the Heads of Departments to the Chairman who shall record his own comments with his signature and date. Reports of all employees with the comments of the Chairman shall then be deposited with the Executive Officer for safe custody.

In 1976, the word "District" before ''Inspector'' was dropped out from the Rule. Under the prevailing system in the Education Department, a District Inspector has no connection with Secondary Education. As we are concerned with the selection of a Headmaster of a Secondary School. i.e. a High School, the District Inspector was not the appropriate authority for maintaining the Character Roll. It is the stand of the Municipality that as there was incongruity, the Executive Officer was maintaining the character roll and the District Inspector had nothing to do with it. It is not disputed that the position is as pleaded by the Municipality. The Character Rolls of all the teachers whose cases came to be considered have been placed before us by Mr. Panda, counsel of the Municipality. From the respective entries, we find that after the Roll was maintained, the Inspector of Schools Cuttack-I Circle, as head of the Department has made an entry in the Character Roll of each of the candidates considered for promotion on 7-6-1976. In the case of Sri S.P. Mishra, the Headmaster had made the following entry:

1975-76 Assistant...Sometimes he Teacher is guided by his ego and misleads the staff.

The Inspector of Schools did not make any separate record though he noted "Seen". The Chairman made the following entry:

He is found to be quite unfit to be considered for promotion. Does not take adequate interest in his work. In the case of the Petitioner, the following entry was made by the Headmaster:

1975-76

Assistant Teacher.

He is a capable, hard, sincere in his duties, most obedient to the higher authorities. In any sphere he can adjust himself and quite reliable. He never hesitates to work for the school. He can be entrusted with any higher responsibility.

The Inspector of Schools made the following endorsement:

Seen. I agree with the Headmaster:

The Chairman made the following entry:

I agree with the remarks of the Headmaster and Inspector of Schools. He is found to be quite suitable for the post of Headmaster and he richly deserves promotion.

It is thus clear from the Confidential Character Rolls that after Rule 418 was suitably amended, the Inspector of Schools has made appropriate endorsements in respect of the entry far the year 1975-76. The Character Rolls seem to have been maintained up-to-date and came for consideration by the Selection Committee at its meeting an 8-6-1976. On 8-6-1976 the Selection Committee made the fallowing decision:

* * *

According to Rule 426 of the Orissa Municipal Rules and Regulation 18 of the Orissa Secondary Education Act, 1953 the service records and the Confidential records of the following six eligible persons duly remarked by the Inspector of Schools as well as by the District Magistrate and Chairman of the Cuttack Municipality were scrutinised:

Sri G.C. Tripathy.

Sri L.N. Ota.

Sri S.P. Mishra.

Sri R.K. Ghadei.

Sri P.C. Das.

Sri Chaitanya Bisoi.

The Committee after going through the C.C. Rs. of past period and also after scrutinising the Rs of 1975-76 of all the six eligible teachers were of the view that Sri P.C. Das is the only Teacher fit to become the Headmaster of a High School and others were not suitable to be considered for the post. It was further considered that Sri P.C. Das''s performance was far superior than of others as evident from the C.C. Rs. and as such the Committee recommend that Sri P.C. Das be selected as Headmaster.

It was on this basis that Petitioner was promoted as Headmaster. From the facts indicated above, there is absolutely no basis for the view taken by the State Government that the C.C. Rs. were not properly maintained and, therefore, could not be made the basis of selection. If anybody was to blame for the non-compliance of Rule 418 so far as teachers are concerned, it was the State Government which had not brought Rule 418 in accord by providing that the Inspector of Schools is to make the record and not the District Inspector. We are satisfied that the selection made on 8-6-1970 was in accordance with law and the State Government unnecessarily interfered in the matter in purported exercise of their statutory powers and by their repeated interference in the matter of selection of Headmaster created an embarrassing situation for the Municipality.

The writ application accordingly succeeds with costs. Hearing fee is assessed at Rs. 200/- (Two hundred) which would be recoverable by the Petitioner from the opposite party No. 1 alone.

P.K. Mohanti, J.

I agree.

Application allowed.