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Judgment
Biraja Prasanna Satapathy, J
This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Heard learned counsel appearing for the Parties.
Petitioner has filed the present writ petition inter alia with the following prayer:-
“The Petitioner therefore, humbly prays that your Lordship may graciously be pleased to issue a Rule NISI calling upon the Opposite Parties to show cause as to why the impugned advertisement under Annexure-6 shall not be quashed / set aside and as to why the petitioner shall not be promoted to the post Headmaster or posted to Academic Wing of the Board having the equal status of the post; if the Opposite Parties fail to show cause or show false / insufficient cause, the Rule may be made absolute against the Opposite Parties and the impugned advertisement under Annexure-6 may kindly be quashed and direction may be made to the Opp. Party No.2 to promote the petitioner to the post of Headmaster or post her in the Academy wing in equal rank”.
It is contented that the Petitioner on being duly selected was appointed as an Asst. Teacher in Secondary Board High School, Cuttack vide order dtd.04.10.1989 under Annexure-1. Taking into account her continuance w.e.f. 18.10.1989 and the Petitioner being the senior most Asst. Teacher, she was kept in charge as Headmaster of the School w.e.f. 30.11.2012 vide order dtd.05.12.2012. Not only that in the final gradation list of Asst. Teachers of Secondary Board High School, Cuttack published on 24.07.2013 under Annexure-2, Petitioner was also placed at Sl.No.1.
4.1. It is contended that as because the final gradation list so published under Annexure-2 was challenged by one Narayan Sahu, who was placed at S.L. No.3 of the gradation list before this Court in W.P.(C) No.18122 of 2013, Petitioner in spite of being the senior most Asst. Teacher she could not get the benefit of appointment as a regular headmaster in terms of the advertisement published in the year 2012 on 13.12.2012 under Annexure-7. The process of selection so initiated in the year 2012 to fill up the post of Headmaster was kept in abeyance because of the interim order passed in W.P.(C) No.18122/2013.
4.2. It is contended that even after disposal of W.P.(C) No.18122/2013 when one Ashok Kumar Satapathy was deployed as against the post of Headmaster as an interim arrangement the matter was challenged before this Court in W.P.(C) No.4564 of 2023. This Court vide order dtd.05.04.2023 while disposing the matter directed the authorities of the Board of Secondary Education to take effective step to fill up the post of Headmaster on regular basis by initiating the required process.
4.3. It is contended that pursuant to the order passed by this Court on 05.04.2023 though Opposite Party No.2 issued the advertisement on 02.05.2023 to fill up the post of Headmaster of Secondary Board School, Cuttack under Annexure-6, but in the said advertisement since the upper age limit was fixed at 55 years, the Petitioner challenging such stipulation in the impugned advertisement under Annexure-6 is before this Court in the present writ petition.
4.4. Learned counsel for the Petitioner contended that filling up the post of Headmaster in Secondary Board High School, Cuttack is governed by the Regulation of the Board of Secondary Education, (in short ‘Regulation’) Odisha vis-à-vis the provisions contained under The Odisha Secondary Education Act, 1953 (in short ‘Act’).
4.5. It is contended that as provided under Section-14(B) of the Act, the Board may, with the prior approval of the State Government, create posts of academic staff which shall include teachers of institutions directly managed by the Board, with such designation and on such terms and conditions as may be determined by the Board with the concurrence of the State Govt.
4.6. It is also contended that as provided under Section-21(i) of the Act, the Board may make regulations for the purposes of carrying into effect the provisions of the Act. As provided under Regulation-21(ii)(l), it is provided that Board may make regulations providing for appointment of Officers (other than the President, Vice-president, Secretary and Finance officer), members of the Academic Staff and other employees of the Board and their conditions of service.
4.7. It is contended that the eligibility criteria for the post of Headmaster is prescribed under Regulation-17(2). As provided under Regulation-17(2)- A trained Graduate in Arts or Science with minimum 7 years experience after training is eligible for being appointed as against the post of Headmaster.
4.8. It is contended that since in the Regulation, there is no such provision with fixation of any upper age limit in order to become eligible for being appointed as against the post of Headmaster, the prescription of the upper age limit at 55 years in the impugned advertisement under Annexure-6 is not sustainable in the eye of law and it requires interference of this Court.
This Court taking into account the contention raised in the writ petition while issuing notice of the matter passed an interim order on 12.05.2023 by permitting the Petitioner to make the application and with a direction on Opposite Party No.2 to accept such application but with the condition that such acceptance shall be subject to the final out come of the writ petition.
On his appearance, Mr. S.S. Rao, learned Senior Counsel appearing for the Board of Secondary Education, Odisha (in short ‘Board’) filed a preliminary counter affidavit by taking a plea that the upper age limit at 55 years has been fixed in the impugned advertisement under Annexure-6 in terms of the decision taken by the Executive Committee of the Board in its proceeding dtd.20.03.2007 under Annexure-A/2.
6.1. It is contended that in the said proceeding of the meeting of the Executive Committee, it was resolved to fix the upper age limit at 55 years for the post of Headmaster. Taking such a plea, learned Senior Counsel when contended that since such upper age limit has been fixed in terms of the decision of the Executive Committee, there is no illegality or irregularity on the part of the Board in fixing the upper age limit at 55 years.
Learned counsel appearing for the Petitioner while filing the rejoinder affidavit took a stand that the decision taken by the Executive Committee while fixing such upper age limit as against the post of Headmaster cannot be implemented unless and until such decision of the Executive Committee is approved by the Government in terms of the provision contained under Section-14(B) of the Act.
7.1. It is also contended that even though the Executive Committee in the proceeding dtd.20.03.2007, resolved to fix the upper age limit at 55 years, but in the advertisement issued for the post of Headmaster by the self-same Board on 11.12.2012 under Annexure-7, there was no such stipulation fixing the upper age limit at 55 years.
7.2. It is also contended that since the decision taken by the Executive Committee in exercise of its power under Regulation-31 has not been approved by the Government, it has got no legal sanctity and no such upper age limit can be fixed basing on such decision of the Executive Committee.
Considering the stand taken by the learned counsel for the Petitioner that the decision of the Executive Committee so taken vide Annexure-A/2 cannot be acted upon in absence of prior approval of the Government, this Court when asked learned counsel for the Board to satisfy this Court on the said issue, learned Senior Counsel appearing for the Board fairly contended that the decision taken by the Executive Committee vide Annexure-A/2 was never approved by the Government. However, it is contended that since the impugned advertisement has been issued by the Board, Opposite Party No.2 is competent to fix such upper age limit and there is no illegality or irregularity in it.
However, in course of hearing, learned Senior Counsel appearing for the Board contended that since in the advertisement issued in the year 2012 there was no such prescription of upper age limit at 55 years and the Petitioner could not participate in the said selection process because of the pendency of the writ petition in W.P.(C) No.18122 of 2013, Petitioner will be allowed to take part in the selection process pursuant to Annexure-6, which will be conducted in accordance with the provisions contained under the Regulation. However, it is contended that such relaxation to be extended in favour of the Petitioner may not be treated as a precedent for future selection for the post of Headmaster.
Having heard learned counsel for the Parties and considering the submissions made by Mr. S.S. Rao, learned Sr. Counsel appearing for the Board that the Petitioner will be allowed to take part in the selection process in terms of the advertisement issued under Annexure-6, this Court while disposing the writ petition directs Opposite Party No.2 to consider the application of the Petitioner and other intended candidates if any and conclude the selection process in accordance with the provisions contained under the Board’s Regulation within a period of six(6) weeks from the date of receipt of this order. It is however observed that the relaxation of upper age limit extended in favour of the Petitioner is an one-time dispension and it cannot be treated as a precedent.
Accordingly, the Writ Petition stands disposed of with the aforesaid observations and directions.
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