Ranganath Misra vs State of Orissa and Others

R.N. Misra, J.—Petitioner is the Secretary of the Managing Committee of the Sodaka High School in the district of Ganjam and has made this application on behalf of the Managing Committee of the institution for a Writ of certiorari to quash the direction contained in Annexure-9 issued by the Opposite party No. 3 and for other consequential directions.

The High School in question has four classes being classes VIII to XI. Under the prescribed staff pattern for such an institution, it is necessary that there should be one classical teacher. In this School, the classical teacher is meant for teaching sanskrit. The prescribed qualification for such a teacher under Regulation 16(4)(ii) in Chapter IX of the Board''s Regulations is ''Sahityacharya''. On 4-10-1972, the Board of Secondary Education communicated vide Annexure-1 the appropriate qualifications for different teachers. In view of the relaxation in respect of the qualification of the classical teacher, the Managing Committee appointed opposite party No. 4 by order of appointment dated 5-9-1973 (Annexure-2). The appointment was purely temporary and was terminable at any time without notice, the true intention being to make a stopgap arrangement until a qualified teacher was available. On 9-10-1974, Petitioner sent a communication to the Headmaster of the school to the following effect:

You are hereby requested to circulate the following matter among the employees of the school and return in original at an early date. That some of the employees are working in higher Posts having less qualification due to non-availability of suitable candidates being appointed by the Managing Committee purely temporarily. They are hereby intimated to remain in preparedness to be relieved if suitable candidates are appointed in their posts.

Five teachers including the opposite party No. 4 were in this list. When the Managing Committee was able to secure the services of a qualified classical teacher, opposite party No. 4''s services were terminated by order dated 7-11-1974 (Annexure-4). The relaxation which had been communicated under Annexure-1 was withdrawn by the Board of Secondary Education by letter dated 30-12-1974 (Annexure-5) which meant that unless qualified teachers were appointed, recognition would be withdrawn. The Inspector of Schools by letter dated 18-2-1975 informed the Petitioner''s school to the same effect and clearly indicated that the classical teacher should have qualification of Sahityacharya vide Annexure-6. Under Annexure-7 dated 21-5-1975, the Inspector indicated the staffpattern in terms of Article 312 of the Orissa Education Code which would show that the classical teacher was required to possess the gratification of Sahityacharya. On 11-11-1974, the date when amendments to the Orissa Education Act of 1969 came into force, the management made an application to the Inspector of Schools to approve the action of terminating the services of opposite party No. 4. After some correspondence, the said Inspector (Opposite party No. 3) by his letter dated 8th of July, 1975 directed the Headmaster of the School in the following manner:

With reference to your letter cited above, I am to say that, the Director of Public Instruction (Schools), Orissa is pressing hard for reinstatement of Sri A.K. Das (Opposite party No. 4), classical teacher of your school. The Secretary of your school was asked to reinstate Sri Das vide this office No. 7508 dt. 23-6.1975 and was requested to furnish his report within a week of receipt of the letter. But no reply from him has yet been received in this office.

Therefore, you are requested to allow Sri Das, to work and prepare the pay bill of Sri A.K. Das, classical teacher of your school as per his eligibility pending finalisation of the case.

In October, 1974, the Board of Secondary Education had written to the School to the following effect, vide Annexure-10.

I am directed to inform you that the authorities of the Board have been pleased not to permit your school to present candidates at the High School Certificate Examination, 1975, because of the following deficiencies:

Non-appointment of Sanskrit teacher.

However, if the authorities of your school fulfil the conditions of recognition as pointed out in para 1, supra and report compliance thereto through the concerned Inspector of Schools so as to reach the undersigned by 15-11-1974 at the latest, the question of permitting the candidates of your school for 1975 Examination may be taken up for consideration.

Placed in this situation, the management of the School found no way out and were obliged to approach this Court for quashing of the direction of reinstatement of opposite party No. 4.

In the counter affidavit filed on behalf of opposite parties 1 to 3, the direction for reinstatement of Opposite party No. 4 has been supported and in paragraph 7 of the return, it has been stated;

To the facts stated in paragraphs 10 to 12, it is stated that the Government in their letter No. 2085-E 28-1-1975 in agreement with the Board''s Regulations prescribed Sahityacharya as the qualification of the classical teacher. The said letter is marked as Annexure-A to the counter. Further more, the aforesaid Government order was applicable to future cases. In the present case, the Sodaka High School was given the recognition by the authorities under the Orissa a Education Code with classical teacher having the qualification of Madhyama and also the opposite party No. 4, who was once appointed to the post, cannot be driven out by a subsequent order prescribing a different qualification. The circular dated 21-7-1975 (Annexure-7) requiring Sahitcharya as the qualification for a classical teacher refers only to the Annexure-A and Annexure-5 which required the Regulations 16, 17, 18 and 21 of Chapter IX of the Board''s Regulations to be fulfilled for recognition with effect from the sessions 1975-76 and the Annexure-6 a circular by the inspector of Schools, Berhampur, saying the fulfillment of Regulations 16, 17, 18 and 21 which requires Sahityacharya as the qualification for a classical teacher, was issued much after the Petitioner''s service was terminated....

Learned Additional Government Advocate has further claimed that under the provisions of Section 7 of the amending Act (Orissa Act 17 of 1974), termination of service of Opposite party No. 4 having been made between 3-5-1972 and 11-11-1974, had to be approved by the Director of Public Instruction (Schools) and the application for approval had to be made in terms of Sub-section (2) of that section within one month from 11-11-1974. The application in the instant case vide Annexure-8 having not been made to the prescribed authority, the termination of service of opposite party No. 4 was invalid and the direction to restore him to service is in accordance with law.

Undoubtedly, the application by the management had been made within time. In fact, as Annexure-8 shows, it was made on the very first day of the commencement of the Amending Act. If the Inspector of Schools was not the appropriate authority, the said application should either have been returned to the school forthwith for presentation to the appropriate authority or should have been forwarded to the prescribed authority by the Inspector of schools. No justification has been shown either in the return made by the Inspector of Schools or by learned Additional Government Advocate in course of the hearing as to why either of the alternate courses was not followed.

The control in regard to imparting education in the secondary stage and conducting of examinations is dual - having been vested in the Board of Secondary Education which is a statutory authority and the state Government. Government themselves have appreciated the position that there are conflicts between the provisions of the Education Act and the Orissa Education Code on one side and the Board''s statutory Regulations on the other in regard to the same matter. In fact, Annexure-A the Government instructions indicates an attempt to resolve such incongruity but as we find, it has not been able to solve the problem effectively and educational institutions in the secondary stage are faced with unnecessary hardship.

In dealing with a Managing Committee of a secondary educational institution like a High School, one should not encourage too much of technicalities of law to operate. After-all, the educational institution has been set up for imparting education and Government have evolved a process of reasonably regulating the running of such institution. The authorities in whom powers have been vested to exercise the control should come forward to case the situation when there is hardship in the working process. The Inspector of Schools must have been aware of the new law which came into force with effect from 11-11-1974. u/s 10-A of the Orissa Education Act which came into the statute by the same Amending Act (Orissa Act 17 of 1974) the following provision has been made in regard to termination of service of a teacher:

(1)

The services of a teacher of an aided educational institution shall not be terminated without obtaining the prior approval in writing of the

(a)....

(b) Circle Inspector of Schools having Jurisdiction in the case of a teacher of a School....

This of course is intended to be a prospective provision and Section 7 dealt with cases of termination made during a period of about 2� years preceding the commencement of the Amending Act. Concurrence of the Inspector was provided in respect of prospective cases while concurrence of the Director of Public Instructions (Schools) was necessary in respect of terminations effected during the prescribed period before the commencement. There was scope for confusion on the part of the Managing Committee and it was the duty of the Inspector not only to assist the management in knowing the law, but to point out forthwith who the appropriate -authority to be approached in the given case was. When by a new law, a situation is intended to be dealt with, those charged with the enforcement of the law as supervising authorities must rise up to the occasion to assist those who are intended to be governed by the new law to know the new provisions which they are obliged to follow. In this background, the Inspector owed a duty, particularly when the limitation of thirty days was prescribed by statute, to either return the application under Annexure-8 to the Management saying that he was not the competent authority, or to forward the same to -the Director of Public Instruction (Schools) who was the competent authority to dispose of the same in accordance with law. We are not satisfied that the application made by the Management should be thrown out as not having been made to the appropriate authority. We cannot also lose sight of the fact that the recognition given to the school has been withdrawn by the Board of Secondary Education merely because the management has not appointed a qualified teacher and that appointment is not, mad possible though the management is anxious to make it because of the technical difficulties indicated above.

In these circumstances, we would quash the order under Annexure-9 and require the Inspector of Schools to forward the application under Annexure-8 addressed to him to the Director of Public Instruction (Schools) to dispose of the same in accordance with law. The application under Annexure-8 is not liable to be thrown out as having not been made to the appropriate authority or as being out of time. We direct the Director of Public Instruction (Schools) (Opposite party No. 2) to dispose of the application on merit keeping in view the facts indicated in our decision as also the facts which the management and opposite party No. 4 may place before him. As the school has been facing difficulty in presenting candidates at the Board''s examinations, we would require the opposite party No. 2 to dispose of the matter within one month of the communication of the writ. Ordinarily, Petitioner should have been awarded costs, but we think it appropriate to make no direction in that regard, as we assume that the impugned orders were made bona fide.

N.K. Das, J.

I agree.