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Judgment
R.N. Misra, J.—The Cuttack Municipality, the Executive Officer whereof is opposite party No. 2, runs Girls� High School within the Town. Opposite party No. 3, who had passed Intermediate in Science was appointed as a Science Teacher in the said School with effect from 22-7-1965. According to Petitioner he was adjusted in the scale of pay prescribed for a Matriculate with training. Petitioner alleges that though there had been a sanctioned post for a trained Science Graduate in the said School. when an appropriate Teacher was not available for quite some time, the post was converted to that of an Arts Graduate Teacher and had been filled up. Petitioner is a trained Science Graduate and was appointed as a Lady Science Graduate Teacher in the Government Girls� School at Keonjhar. Sometime in 1969, she was transferred to the Pattamundai Girls� High School. In December, 1969, the State Government in the Education Department, prescribed that Lady Teachers only should be posted in Girls� Schools and wherever male teachers have been posted, steps should be taken to withdraw them at an early date (vide Annexure-3). In July, 1971, opposite party No. 3, who had in the meantime taken the Bachelor�s Degree in Science was allowed on his own application to join the B.Ed. course The Executive Officer of the Municipal Council called for applications to fill up the vacancy thus arising and the name of Petitioner was sponsored by the employment Exchange. In August, 1971, Petitioner was selected for appointment on interview. With effect from September 9, 1971, Petitioner came to be appointed as an Assistant Mistress in the post of Trained Science Graduate on appropriate scale of pay. In January, 1972, the Municipal Council resolved that Government be requested to sanction the post which Petitioner had been holding with effect from 1-9-1971. On 14th March, 1972, Government sanctioned the post with effect from 15-9-1971. In mid-May of 1972, opposite party No. 3 returned after training but by then the results had not been published and he was allowed to join in the previous post held by him in the pay scale of a trained Matriculate and on the same day Petitioner�s service was terminated saying that the same was no more required. On Petitioner�s protests and representations, on 10th of July, 1972, the order of termination was recalled and Petitioner was allowed to continue as a Trained Science Teacher, but a note in the order issued was appended that the position will continue until opposite party No. 3 became a trained Teacher. In August, 1972, opposite party No. 3�s results were declared and he passed the B.Ed. Examination. In January, 1973, opposite party No. 3 was transferred to another High School run by the Municipality at Rajabagicha against the post of a trained Intermediate in Arts Teacher, but he avoided to report to duty and made a representation to the Urban Development Department of Government (opposite party No. 1). The Municipal Council submitted a reply to the State Government wherein Petitioner alleges in her rejoinder-affidavit that her stand was completely supported and the Municipal Council relied upon the Government direction that the post in the Girls� High School had to be filed up by a Lady Teacher. On 9th of June. 1973, the State Government allowed the representation of opposite party No. 3 and directed that he should be allowed to remain in the Girls� High School as against the post of Trained Science Teacher. On 12th at September. 1973, the Executive Officer of the Council passed the following order:
In pursuance of Government Order No. 18138/UD. dated 9-6-1973 and No. 19145/UD dated 21-6-1973 and pending finalisation of the matter for further examination Sri Gajendra Kumar Pani, Science Teacher, Municipal Girls� High School (opposite party do. 3) is allowed to continue against the Trained Science Graduate Teacher in the prescribed scale of pay and D.A. in the same school....
Smt. Snehamayee Sahu. Municipal Girls� High School (Petitioner) who was appointed purely on temporary basis against the post of Science Teacher in the said school is hereby reverted from the date of issue of this order and posted temporarily in the City High School, Rajabagicha, against the Trained 1. A post to which Sri Pani was transferred.
Petitioner challenges this order under Annexure-9 and has claimed for a writ of certiorari to quash it.
The facts alleged in the writ application to provide the foothold for the various contentions raised by Mr. Rath for Petitioner have been seriously disputed both by the Municipal Council as also the opposite party No. 3. Ordinarily, in the face of such disputed facts, we would have declined to entertain the writ petition and required Petitioner to agitate her grievance in an appropriate Court, but in this case, however, we find a special feature to which we will advert now.
The Municipal Council which admittedly is the employer had by order dated 2-1-1973 (Annexure-18) transferred opposite party No. 3 to the City High School to be adjusted against the post of an Intermediate Trained Teacher which was lying vacant. It is against this order that opposite party No. 3 preferred a representation or appeal to the State Government in the Urban Development Department and the final order under Annexure-9 by which Petitioner is aggrieved was in terms of the order of the State Government on the appeal petition. Mr. Rath for Petitioner has taken the stand that no appeal, lay and the State Government acted in excess of its jurisdiction in entreating the appeal and giving a direction which ultimately has worked out great prejudice to Petitioner.
Opposite parties have relied upon Section 77 of the Orissa Municipal Act of 1950 (hereinafter referred to as the �Act�) to justify the entertainment of the appeal. We may now refer to Sections 76 and 77 of the Act:
Subject to the provisions of this Act or any rules thereunder and to such control as may be prescribed, the Chairman of a municipal Council may censure, fine, withhold promotion, reduce, suspend, remove or dismiss any officer or servant of the municipal council in its service, except the Engineer, the Health Officer and the Executive Officer for any breach of departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct;
Provided that....
(1) An appeal against any order passed u/s 76 shall lie, if such order was passed by
(a) the Executive Officer, Engineer or Health Officer, to the Municipal Council: and
(b) the Chairman, to the State Government.
(2) An appeal under this section shall be preferred and disposed of in such manner as may be prescribed.
It is not necessary to refer to the Rules, because according to Mr. Rath for Petitioner no order in terms of Section 76 of the Act had been passed in this case so as to authorise an appeal u/s 77 thereof. Mr. Ranjit Mohanty for the Municipal Council contended that when opposite party No. 3 returned after being trained and was offered a post of an Intermediate Trained Teacher, it amounted to reduction in rank and, therefore, the appeal lay. We do not think, the contention of Mr. Mohanty has any force. Indisputably, before opposite party No. 3 proceeded for training, he was not holding a Trained Graduate Teacher�s post and was not drawing that scale of pay. Therefore, when he was asked to join in the Rajabagicha High School against an Intermediate Teacher�s post, there was no reduction in rank. Besides, what is contemplated u/s 76 of the Act is an order in a regular disciplinary proceeding. When such an order ultimately resulting in a punishment of the type described therein is passed by the Executive Officer, the Engineer or the Health Officer, an appeal lies to the Municipal Council and when such an order is passed by the Chairman, the appeal against it lies to the State Government. In the facts of this case, no appeal lay to the State Government and the order of the State Government, therefore, is without jurisdiction. The Municipal Council is at liberty to make its own arrangements of posting of teachers and unless the Municipal Council thinks it appropriate to alter the order under Annexure-1, it is not for the State Government to direct its alteration. Since the order under Annexure-9 which is impugned before us is the direct outcome of the Government order in purported exercise of appellate powers u/s 77 of the Act, we think it appropriate to quash the same.
We would accordingly quash the order in Annexure-9. Consequently the arrangement made by the Municipality shall revive. It is appropriate at this stage to draw the attention of the Municipal Council to the communication from the Education Department (Annexure-3) that no male teachers should be posted in Girls� Schools. We do not know whether the said direction binds the Municipality, but we think it appropriate that the Municipal Council should keep that direction in view when making its own arrangements.
The writ application is allowed in part. We make no order as to costs.
K.B. Panda, J.
I agree.