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Judgment
R.N. Misra, J.—In village Rupadeipur within the district of Puri is located an aided educational institution by the name Bhagabati Middle English School. This institution came into existence in 1960 and is managed by a Managing Committee in terms of the provisions contained in the Orissa Education Code and the Orissa Education Act of 1969. The School has a sanctioned teaching staff of three teachers i. e. of one trained intermediate Headmaster and two trained matriculate teachers designated as the 2nd and the 3rd teachers. In the academic session 1973-74, the sixth class had to be duplicated on account of increased number of students. The Management, therefore, created the post of 4th teacher for a specific period namely from 25-9-1973 to 25-5-1974. After obtaining appropriate approval from the District Inspector of Schools, steps were taken to fill up this post and one Baikunthanath Mohapatra (opposite party No. 1 in the first case) sponsored through the Employment Exchange was appointed on the following terms:
Sri Baikuntha Mahapatra of village Kaliapada, P.O. Dandipur, via- Balanga, Dist- Puri is appointed as an additional teacher against the post created for duplication of class VI during 1973-74 on usual scale of pay and D.A. as admissible under rule. His service is purely temporary and will be terminated in the afternoon of the last working day of the school before the Summer Vacation, 1974.
The District Inspector of Schools approved the appointment by his communication dated 6-11-1973 by saying:
Sanction is accorded for the duplication of class VI in the Bhagabati M.E. School, Rupadeipur during academic session 1973-74 from 25-9-1973 on the usual condition i. e. availability of accommodation of furniture and provision of duly qualified teachers. The additional teacher appointed against the duplication of classes is to be relieved in the afternoon of the last working day of the school before the summer vacation from 1973-74 i. e. the duplication of classes should be disbanded before Summer Vacation.
On 25-5-1974, the Secretary of the Managing Committee of the School passed the following order:
The service of Shri Baikuntha Mahapatra, Additional Teacher of Bhagabati M.E. School, Rupadeipur is no loner required as the duplication of Class VI is disbanded on 25-5-1974, i.e. the last working day of the School before Summer Vacation, 1974. He is relieved from the School duties with effect from 25-5-1975 A.N.
A copy of this order was submitted to the District Inspector of Schools for his approval.
The teacher preferred an appeal u/s 7(3) of the Orissa Education (Amendment) Act of 1974 before the Tribunal challenging the aforesaid order on the ground that the impugned order was one of termination of service and was invalid as it had been made without the requisite approval of the appropriate authority. The said appeal came to be registered as Appeal Case No. 112 of 1974 and the Tribunal allowed the appeal, vacated the impugned order and directed that the teacher shall be reinstated in service and the benefit indicated in Section 7(5) of the amending Act would be available to him.
O.J.C. 1625 of 1975 at the instance of the Managing Committee is for a writ of certiorari for quashing the order of the Tribunal. Therein the teacher, the Director of Public Instruction (Schools) and the Educational Tribunal have been impleaded as opposite parties 1, 2 and 3 respectively. O.J.C. No. 2230 of 1975 is by the teacher concerned for quashing of the order of termination and for a direction that the Petitioner be reinstated to service with all consequential benefits. The Managing Committee, the Director of Public Instructions (Schools and the District Inspector of Schools, Puri, have been impleaded as opposite parties. As in both the applications, the dispute is common at the request of parties, the two cases have been heard together and are being disposed of by a common Judgment.
Sections 7 of the Amending Act provides:
(1) Notwithstanding anything in any judgment decree or order of any Court, but subject to the provisions hereinafter contained, the termination of the services of any teacher of an aided educational institution as defined in the principal Act, made after the 3rd May, 1972 and before the date of commencement of this Act shall, if made without the approval of the Director of Public Instruction (Higher Education) in the case of a college teacher and of the Director of Public Instruction (Schools) in the case of a school teacher, be inoperative.
(2) The managing committee or the governing body of the concerned institution shall refer the case of the said teacher to the Director of Public Instruction (Higher Education) or the Director of Public Instruction (Schools), as the case may be, within one month from the date of commencement of this Act for obtaining his approval and thereupon the provisions of Section 10-A of the principal Act as amended by this Act shall, mutatis mutandis apply:
Provided that where the managing committee or the governing body, as the case may be, fails to make a reference in accordance with this Sub-section, the order of termination of the services of the teacher shall become void and the teacher shall be deemed to have been reinstated in service with effect from the day following the date of expiry of the aforesaid period of one month.
....
Admittedly the impugned action was taken prior to the Amending Act of 1974 inasmuch as Orissa Act 17 of 1974 came into force with effect from November 11, 1974. If the impugned order amounts to one of termination of service, on the admitted facts, the same being without the approval of the prescribed authority, namely the Director of Public Instruction (Schools), the same would be void as no reference has been made in terms of Section 7(2), Proviso of the Amending Act and approval has not been obtained. The question for consideration, therefore, is whether the impugned order is one of termination.
Before we deal with this aspect of the matter, in view of the contentions advanced before us that no appeal lay to the Tribunal u/s 7(3) of the Amending Act, it is proper that we dispose of that question. Sub-sections (3) and (4) of Section 7 of the Amending Act provide:
(3) Where any such termination as is referred to in Sub-section (1) was made with the approval of the Director of Public Instruction (Higher Education) or the Director of Public Instruction (Schools), as the case may be, the concerned teacher may prefer an appeal to the Tribunal constituted under the principal Act as amended by this Act within one month from the date of constitution of the Tribunal.
(4) Where, on a reference made under Sub-section (2) the Director refused to accord approval and no appeal is preferred to the Tribunal against the order of refusal, the concerned teacher shall be reinstated with effect from the date of such order.
It is well-known that appeal is a creature of statute and if the right is hedged with conditions an appeal lies in terms of the conditions indicated. Under the provisions of the Amending Act, an appeal by the teacher lies where termination is approved by the prescribed authority. The Management is entitled to appeal where the prescribed authority refuses to accord approval. Admittedly in the instant case, no reference was at all made to the Director of Public Instruction (Schools) and therefore, the question of preferring appeal by either the teacher the Management did not arise. The appeal to the Tribunal, therefore, was not maintainable. Mr. Mohaptra for the teacher contended that when an objection on such score had not been raised by the Management before the Tribunal and the Management had participated in the proceedings, this objection at the instance of the Management should not be permitted to be raised in the writ petition on the principle of acquiescence and estoppel. We do not think that would be an appropriate stand because jurisdiction is never conferred by consent and if the appeal did not lie under the provisions of the statute, merely because the Management had participated in the proceedings of appeal before the Tribunal without questioning its maintainability, the Tribunal cannot be deemed to have jurisdiction to maintain the appeal and reverse the impugned order. It would, therefore, follow that no appeal lay to the Tribunal and as the impugned order of the Tribunal is one in exercise of jurisdiction which did not vest in the authority, the Tribunal''s decision has to be quashed by issue of a writ of certiorari. For the reasons indicated by us, we quash the order of the Tribunal.
In the second writ application by the teacher, we must now proceed to consider whether the impugned order is one of termination so that the same having been passed without the requisite approval is bad and Petitioner should, therefore, be restored to service. It has been clearly indicated in the counter affidavit of the opposite parties that the school had three posts in all those of Headmaster and two Assistant Teachers. In the academic session of 1973-74, there was need for a fourth teacher on account of duplication of the VI class. We have already extracted the terms of sanction by the District Inspector of this post. It is clear from that order that the post came into existence with effect from 25-9-1973 and was intended to continue upto 25-5-1974. Creation of an additional post beyond the approved pattern involves financial liability and since the institution is financial aided to the tune of two-thirds of its expenses, strict control contemplated. In the absence of a definition of the word termination in the statute, Petitioner has contended that the word must be given its common parlance meaning and is, therefore, a term wide amplitude. Even if the appointment was for a fixed term and with the lapse of time indicated in the order of appointment, the service is to lapse, Petitioner''s counsel contends, it would still amount to a case of termination. On the other hand, counsel for the Managing Committee as also learned Additional Government Advocate have taken the stand that termination is a positive act and where the appointment is for a fixed term and the event of closure of service is the outcome of lapse of time, the process is automatic. It is like the event of superannuation where no positive decision is necessary and the event flows out from the approach of the prescribed time limit. The contention of the opposite parties receives direct support from a decision of this Court in Sarit Kumar Naik v. The Managing Committee and Ors. O.J.C. No. 280 of 1976, where in a case of this type it has been held that there is no termination and Section 7 of the Amending Act has no application. Mr. Mohapatra for the teacher-Petitioner has challenged the correctness of the decision by contending that Government Circulars prohibiting termination of service of teachers on the eve of Summer Vacations had not been taken into consideration. We do not think, the contention raised by Mr. Mohapatra can be accepted on that score. There is abundant authority that superannuation does not involve termination. Similarly, when a temporary post is created and an appointment is made to such post clearly indicating the two termini of service it would be erroneous to hold that it is a case of termination. The public policy behind the statutory provision in Amending Act does not warrant approval in such cases, because the mischief to weed out which the statutory provision came by way of amendment does not arise in a case of that type where the post is sanctioned for a term and the appointment runs for the entire term. The existence of the post and service of a particular teacher therein are co-terminus. There is also great force in the contention of the Management that when the post does not exist, to give a direction that the Petitioner be absorbed service would be meaningless. Petitioner does not dispute that the post it a more exists and if the Petitioner''s restoration to service would affect the other teachers, as they are not parties to this proceeding, the same cannot be done. In these circumstances, we must hold that the writ application has no merit and Petitioner cannot be restored to service by quashing of the order of termination. The writ application accordingly fails and is dismissed.
That net result, therefore, is that O.J.C. No. 1625 of 1975 is allowed and the decision of the Tribunal is quashed. O.J.C. No. 2230 of 1975 is dismissed. There is, however, no order for costs in either cases.
K.B. Panda, J.
I agree.