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CASE NO.:

Appeal (civil) 3190 of 1999

Appeal (civil) 4670 of 1999

PETITIONER:

PABITRA MOHAN DASH ETC..

Vs.

RESPONDENT:

STATE OF ORISSA & ORS.

DATE OF JUDGMENT: 04/01/2001

BENCH:

G.B.Pattanaik, B.N.Agarwal

JUDGMENT:

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JUDGMENT

PATTANAIK,J.

These two appeals are directed against a Special Bench

judgment of the Orissa High Court dated 25th January, 1999.

By the said judgment some of the directions contained in the

earlier Full Bench decisions have been set aside. The

appellants, who were Head Masters of different Private

Schools, and those schools became later on Aided Educational

Institutions, and finally became full fledged Government

schools, are aggrieved by the impugned judgment of the

Orissa High Court as in implementation of the said judgment

they cannot be continued as Head Masters.

Prior to the enactment of the Orissa Education Act,

1969(hereinafter referred to as The Act), the educational

activities in the State of Orissa were being regulated

through a collection of executive instructions issued by the

Government from time to time and those instructions had been

embodied in a Code, called Education Code. The provisions

of the Code had no statutory support and, as such, the

Government was not able to exercise effective control over

the management of the Non-Government Educational

Institutions. The management of such institutions were

playing hire and fire with the services of the teachers of

the institution. The Orissa Legislature felt that such

employees of the Non-Government Educational Institutions

should be protected from the exploitation by the management,

and government also should have some control over those

Non-Government Institutions so that conditions of the

institutions would not deteriorate. It is with this object

the Orissa Education Act was enacted in the year 1969 and

since then has been amended from time to time to suit the

needs of the hour and by now the Act of 1969 has been

amended 9 times. Section 3 (m) defines the word

prescribed to mean prescribed by rules. Section 6

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provides the procedure for recognition of the Educational

Institutions. Sub-section (12) of Section 6 stipulates that

no Educational Institution shall be eligible for affiliation

or recognition by the Board of Secondary Education

constituted under the Orissa Secondary Education Act, 1952

or the Council of Higher Secondary Education constituted

under the Orissa Council of Higher Secondary Education Act,

1992 unless it has received recognition under the Act and

continued to be so recognised. Section 10 provides the

conditions of service of the staff of aided institutions.

Section 10-C provides for constitution of a common cadre in

relation to all or any class of employees of all or any

category of aided Educational Institutions as may be

specified in the order. Much prior to the enactment of the

Act in 1969 the Orissa Legislature had enacted the Act in

the year 1952 (Orissa Act 10 of 1953) called Orissa

Secondary Education Act 1952 (hereinafter referred to as

the Secondary Education Act). The Act intended to

establish a Board to regulate, control and develop secondary

education in the State of Orissa. The expression

prescribed has been defined in Section 2(i) of the

aforesaid Act to mean prescribed by regulations made by the

Board under the Act. Section 3 of the aforesaid Secondary

Education Act cast duty on the State Government to

constitute a Board called the Board of Secondary Education

to regulate, control and develop Secondary Education in the

State of Orissa. The Board is a body corporate with

perpetual succession and a common seal. Section 2(k)

defines recognition to mean recognition for the admission to

the privileges of the Board including its examination.

Section 2(i) defines Regulation to mean Regulation made or

deemed to have been made by the Board under the Act.

Section 21 is the power of the Board to make Regulation for

the purpose of carrying into effect the provisions of the

Act. Chapter IX of the Regulations deals with certain

pre-conditions in respect of the educational institutions.

Regulation 1 of Chapter IX provides that no school which is

not recognised by the Board shall be permitted to present

candidates for any examination conducted by the Board.

Regulation 17 deals with the conditions to be fulfilled

before permission is granted to open certain classes and for

a school with class IX and above it must have a Head Master

who has to be a trained graduate in arts or science with

minimum 7 years experience after training. It is this

condition prescribed under the Regulation for being

appointed as Head Master of an aided educational institution

which is the subject matter of controversy in the impugned

case and was the subject matter of controversy in the cases

where earlier Full Bench of the High Court had taken some

decisions which stood reversed by impugned judgment of the

Special Bench of Orissa High Court. In exercise of power

under Secion 27 of the Act a set of Rules have been framed,

called, the Orissa Education (Recruitment and Conditions of

Service of teachers and principals and staff of Aided

Educational Institution) Rules, 1974 (hereinafter referred

to as the Recruitment Rules). Rule 6 provides procedure

for selection of candidates on determining their merit and

suitability in the manner as determined in Regulation of

Selection Board. Rule 7 provides condition of eligibility

of candidates. Rule 7(c) further stipulates that the age or

qualification for appointment as a teacher and for other

posts would be the same as for similar or corresponding post

in educational institution established or maintained by the

Government. Rule 8 carves out certain exceptions to the

selection by the Board as provided in Rule 6. Rule 8(3) is

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the procedure for filling up the post of Head Master and

Head Mistress of schools. Regulation 17 of Chapter IX of

the Boards Regulation as well as Rule 8(3) of the

Regulation Rules are extracted hereinbelow in extenso:-

Regulation 17. A school seeking to open Class IX

shall be required to fulfil the following conditions before

permission to open the Class is given (1)ADDITIONAL

ACCOMMODATION:- Class room of the prescribed size

Additional classroom of minimum floor area of 192 sq. Ft.

And minimum width of 16 ft. (If more than two additional

subjects are taught in the school, for every additional

subject one more room has to be provided.) (2) ADDITIONAL

STAFF:- (I) Headmaster :- A Trained Graduate in Arts or

Science with minimum 7 years experience after training.

(II) One Trained Graduate teacher (preferably having

Sanskrit as one of the subjects in degree stage) (III)

Non-teaching staff:- (iii) L.D. Assistant - One

(3) ADDITIONAL FURNITURE :- These should conform the

approved list. (4) ADDITIONAL APPARATUS:- These should

conform the approved list. (5) LIBRARY :- At least books

worth Rs.250/- have to be purchased in addition to the books

already in stock.

Rule 8(3) of Education Rules Vacancies in the posts

of Headmasters of aided Boys High Schools and

Headmistresses of Girls High Schools and Readers, including

Principals of aided Colleges under the fold of the system

direct payment of full-salary- cost shall be filled up by

the eligible trained graduate teachers of respective

categories of High Schools and Headmasters and Head

mistresses of respective categories of Middle English

Schools, and by the lecturers belonging to the common cadre

of the Aided Colleges, as the case may be, from the select

list prepared by the Selection Board in the Manner

prescribed in the Regulation framed by the Selection Board

for the purpose, on the basis of the recommendation of a

Committee to be constituted by the Government which shall be

headed by the Director. The selection shall be made on the

basis of seniority in the common feeding cadre and

performance. The zone of consideration shall be thrice the

number of vacancies: Provided that ad hoc promotions to the

posts of Readers which included Principals of aided

Collegesasters of aided Boys High Schools and

Headmistresses of aided Girls High Schools under the fold

of the system of direct payment-of-full-salary-cost may

however, be made from the concerned common feeding cadre for

a period of one year or till the date of receipt of select

list from the Selection Board, whichever is earlier with the

prior approval of Government:

Provided further that in the absence of common feeling

cadres, appointment to the posts of Headmasters of aided

Boys' Hgh Schools and Headmistresses of aided Girls High

Schools of the State under the fold of the system of

direct-payment- of-full-salary cost can be made by the

authority from amongst the eligible trained graduate

teachers of the respective categories of aided High Schools

and aided Middle English schools, as the case may be, on the

recommendation of the Selection Board through an open

advertisement. The Selection shall be on the basis of the

length of service and performance as trained graduate

teachers in aided High Schools or Headmasters and

Headmistresses in aided Middle English Schools.

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It may be noticed that Regulation 17 providing the

qualification of the staff, as aforesaid, came into force on

29.4.1977 and Rule 8(3) of the Recruitment Rules came into

force on 3.5.1988. The provisions of the aforesaid Acts,

Regulation and Rules are complimentary to each other and are

essentially intended to confer powers on the Educational

Authorities of the Government to exercise control over the

management of the institutions and also provide conditions

of service of the employees so that the management will not

be free to have any person as the employee of the

institution nor would it be free to terminate the service of

the employee whenever it likes, even though the power of the

Management vest with the Committee of the Management of the

school. It must also be borne in mind that no school would

be entitled to present its students appearing at the High

School Certificate Examination unless the school gets

recognition from the Board of Secondary Education and

further the school must satisfy the Board before getting

recognition that it has the minimum staff with the

prescribed qualification as provided under Regulation 17.

Prior to the enactment of Orissa Education Act, under

the so called Administrative Instructions called the Orissa

Education Code the staffing pattern of High School provided

that the school shall have 4 posts of trained graduate

teachers including the headmaster apart from other teachers

and clerical staff. Thus any trained graduate teacher could

be appointed as Headmaster under the set of Administrative

Instructions. Until 29.4.1977 when the Regulations framed

under the Secondary Education Act, 1952, was amended the

prescribed qualification for the post of Headmaster of a

school was merely a trained graduate. By virtue of the

amended Regulation, the said prescribed qualification for

the post of headmaster of a school became a trained graduate

in arts or science with minimum 7 years experience after

training. It is to be noticed that schools whether private

or aided or Government will have to get recognition from the

Board of Secondary Education without which it would not be

permissible for the institution to present its candidates at

the annual High School Certificate examination and

necessarily, therefore, the institution will be entitled to

get recognition only if it has the required number of staff

with the prescribed qualification and consequently a

Headmaster will have to be a trained graduate in arts or

science with 7 years teaching experience after becoming such

trained graduate. Though the regulation framed under the

Board of Secondary Education Act prescribed the

qualification for the post of a Headmaster neither the

Education Act nor the Recruitment Rules of 1974 framed in

exercise of powers under the Act of 1969 deal with or

prescribe the qualification for the appointment of the

Headmaster of a High School. Rule 8 of the Recruitment

Rules, however, provides exception to the selection by the

Board and Rule 8(3) of the said Rules provides the procedure

for filling up of the vacancies in the post of Headmaster

and the aforesaid Rule 8(3) came on 3.6.1988. As has been

stated earlier, under the Orissa Education Code the

prescribed qualification for the post of Headmaster of a

school was merely a trained graduate whereas with effect

from 29.4.1977 the prescribed qualification for the post of

Headmaster under the Regulations framed under the Board of

Secondary Education Act became a trained science graduate

with 7 years of teaching experience after becoming a trained

graduate. Since the provisions of the Regulation, Act and

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the Rules are complimentary to each other, it must

necessarily be held that no school can have a Headmaster

after 29.4.1977 who does not possess the qualification of 7

years of teaching experience as a trained graduate teacher.

The schools usually start in villages on private donations

and continue for some period on the tuition fee received

from the students and the donation of the local public.

After continuing for some period the State Government grants

financial assistance , called Grant-in-aid and on receipt of

such grant schools became aided educational institutions, as

defined in the Act as well as the Recruitment Rules of 1974.

Though the conditions of service of an aided educational

institution is governed by the provisions of Recruitment

Rules of 1974 which Rule confers adequate control with the

Educational Authorities even in the matter of appointment of

teachers in the institutions but the same having no

application to the private schools, the Managing Committee

of the private schools who continue to be the employer and

were appointing teachers including the Headmaster on their

own. Though such private schools are also required to get

recognition from the State Government without which they

would not be eligible for affiliation or recognition by the

Board of Secondary Education constituted under the Orissa

Secondary Education Act, 1952, yet at the time of

recruitment of the personnel the Educational Authorities

were not having any control over the process of recruitment

and in the process many private schools which later on

became aided educational institutions and finally landed up

as Government schools continued to have Headmasters even

subsequent to 29.4.1977 when Regulation 17 was inserted by

amendment without 7 years of teaching experience after being

a trained graduate. Right of such people to continue as

Headmaster came to be considered in the First Full Bench

Judgment in the case Golakh Chand Mohanty vs. State of

Orissa and others After elaborate discussion of the

different provisions of the Act, Regulation and the Rules

the said Full Bench in its judgment recorded five

conclusions which have been quoted in paragraph 3 of the

impugned judgment of the Special Bench. A Batch of Writ

Petitions subsequent to the aforesaid Full Bench decision in

Golakh Chand Mohantys case (supra) when were listed before

a Division Bench the Division Bench felt that by applying

the ratio of the Full Bench decision in Golakh Chand

Mohantys case (supra) great harassment would be caused to

all those teachers who had been appointed as Headmasters of

different un-aided schools when there was no such embargo or

requirement of 7 years of teaching experience as trained

graduate teacher was there and consequently, Golakh Chand

Mohantys case (supra) may be re- considered. These batch

of cases were heard by the subsequent Full Bench and the

subsequent Full Bench also came to the conclusion that the

decision in Golakh Chand Mohantys case (supra) does not

need re-consideration, as has been noticed in paragraph 4 of

the impugned judgment of the Special Bench. After answering

the reference, the cases were listed before the Division

Bench of the Orissa High Court and the learned Judge of the

Division Bench felt, because of conflicting views of the

earlier Division Benches of the said Court on the question

whether the Inspectors order or approval of an incumbent of

headmaster-incharge of the school is protected under

conclusion no. 2 recorded by the Full Bench in the case of

Golakh Chand Mohany (supra), and accordingly referred the

cases again to a larger Bench. When the cases were listed

before the Full Bench, the Full Bench felt that though a

single question has been referred to but yet there remain

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some grey areas in the earlier two decisions of the Full

Bench and, therefore, Special Bench of Five Learned Judges

was constituted to examine the entire controversy afresh.

After a thorough consideration of the matter Special Bench

recorded its conclusion in paragraph 19 which are quoted

hereunder :-

(a) The decision of the Full Bench of this Court in

Golakh Chandra Mohantys case (supra) as contained in

sub-paras (2), (3) and (4) of paragraph 26 is contrary of

law. In paragraph 26(2) of the judgment, use of expression

appointments is admittedly improper as there is no

question of direct appointment. In paragraph 20, the Full

Bench itself observed that all posts were to be filled up as

required by Rule 8(3) of the Rules. Regulation 17(2) of

Chapter IX of Boards Regulations is applicable to both

aided and unaided institutions and only when a person is

trained graduate with minimum of seven years of experience

after training is eligible to become as Headmaster. (b) In

Priti Ranjans case (supra) the second Full Bench obseved

that the date 3.6.1988 has rational nexus with the object

sought to be achieved by the provisions. The conclusion is

indefensible in view of the analysis made above. The basis

for such conclusion was enactment of Rule 8(3). IN VIEW of

the analysis made that the Regulation 17(2)(i) operated at

all times, the basis for such conclusion does not hold good.

The conclusion in Golakh Chandra Mohantys case (supra) as

followed in Priti Ranjan Pradhans case that in cases where

prescribed qualification had not been acquired by 3.6.1988,

but were acquired subsequently were to be approved is

clearly without any basis. ............... (c) The orders

of approval passed by the Inspectors of Schools are of no

consequence and do not have any force on the question of

promotion in terms of Rule 8(3).

It is these conclusions of the Special Bench which are

being assailed in these appeals.

Mr. Ranjit Kumar, learned counsel apapearing for the

appellant in C.A. 3190 of 1999 contended with force that

the earlier Full Bench in Golakh Chandra Mohantys case

(supra) having considered the relevant provisions of the

Act, Regulation and Rules framed thereunder and having

issued Five directions which were re- affirmed by the Second

Full Bench judgment and those judgments not being assailed

by the State or any other aggrieved party, benefit accrued

to the persons pursuant to the said judgment cannot be taken

away by the subsequent Special Bench judgment which is being

impugned in these appeals. He further contended that the

provisions of the Orissa Education Code having continued to

remain in force so far as private schools are concerned, and

there being no requirement under the Orissa Education Act,

1969, or the Recruitment Rules framed thereunder of the year

1974 that the Headmaster must be a trained graduate with 7

years of teaching experience as a trained graduate, the

headmasters of private schools later on cannot be deprived

of that right when the school becomes aided school or the

government school. This judgment of the Special Bench on

that score, therefore, cannot be sustained. The learned

counsel further urged that the expression approval in

second direction of Golakh Chandra Mohantys case (supra)

must mean approval of Inspector of schools and consequently

whereever the appointment as Headmaster has been approved by

the Inspector of School until the impugned Special Bench

Judgment those Headmasters cannot be discontinued of their

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right to continue as Headmaster and getting the pay scale

attached to Headmaster and the impugned judgment must be

held to be only prospective in nature.

Mr. A.K. Pradhan, the learned counsel appearing in

other Civil Appeal reiterated the contentions raised by Mr.

Ranjit Kumar and further added that there was no bar for

direct recruitment for the post of Headmaster so long as the

schools were neither aided nor government and to those

category of employees, the provisions of Recruitment Rules

will have no application inasmuch as the Recruitment Rules

of 1974 apply to service conditions of the Aided Educational

Institutions. Consequently those employees right to get

the scale of pay attached to Headmaster cannot be said to

have been taken away by the impugned judgment. He had also

urged that in view of the terms of reference in the batch of

cases it was not open for the Special Bench to re- examine

the entire matter afresh even though the State or any other

person had not challenged the Full Bench Judgement in Golakh

Chandra Mohantys case (supra) as well as the subsequent

Full Bench decision re-affirming the same.

Mr. J.R. Das, the learned counsel appearing for the

State of Orissa, Mr. P.N. Mishra, learned senior counsel

appearing for some of the interveners and Mr. Sanyal,

learned senior counsel appearing for another set of

interveners on the other hand contended, that the latter

Full Bench while hearing the batch of cases having felt it

necessary to re-examine the correctness of the observations

made in the Golakh Chandra Mohantys case (supra) and for

that purpose having constituted a larger Bench of 5 Judges,

the contention that it had no jurisdiction to go into the

matter is wholly unsustainable. According to Mr. J.R. Das

the expression approval in the direction no. 2 in Golakh

Chandra Mohantys case (supra) must mean approval

contemplated under Rule 8(2)(b) of the Recruitment Rules of

1974 and consequently any approval of any illegal

appointment not by the Competent Authority or somebody else

would not amount to the approval. It was also urged that

the provisions contained in Board of Secondary Education and

the Regulations framed thereunder, the Orissa Education Act

and the Recruitment Rules of 1974 laid down the conditions

of services of the Aided Educational Institution being

complimentary to one another and the Regulation itself

having provided the minimum qualification for the post of

Headmaster as trained graduate and 7 years teaching

experience it would not be permissible for a Court to hold

otherwise, and therefore, the Special Bench rightly took up

the matter and removed the anomalies. Even on the question

of adjustment of equity or equitable consideration this

contention that the minimum qualification prescribed under

the statutory provision cannot be dispensed with by the

judgment of Court and as such the Special Bench rightly held

the so called approval, if any, of the Inspector of Schools

is null and void.

Having examined the rival contentions and on a

thorough scrutiny of two earlier Full Bench decisions as

well as the impugned judgment of the Special Bench we are of

the considered opinion that the Special Bench rightly

thought it appropriate to reconsider the entire matter

afresh and re-determine the issues involved in the light of

the relevant provisions of the Act, Rules and Regulations

after hearing at length on all issues and there was no

infirmity on that score even though the point of reference

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was of a limited nature. Courts exist to interpret the law

and while examining the provisions of any Act, Rule or

Regulation, if it is felt that the earlier decision on the

question is not clear on any particular issue or has created

confusion in resolving the disputes or has caused hardship

to a group of people, it would be the duty of the court to

re-examine the matter after giving opportunity to all

parties concerned and by such process question of taking

away anybodys vested right does not arise. In the case in

hand it is not a particular writ or order that had been

issued in favour of any individual is sought to be nullified

by the subsequent Special Bench decision. On the other hand

the erroneous conclusion of the relevant provisions of the

Act, Regulation and Rules are sought to be corrected and we

see no infirmity in this approach of the Special Bench.

That apart, though point of reference may be of a limited

nature but in answering the same if the Court feels that it

would be in the interest of justice to constitute a larger

Bench and examine the correctness of any earlier conclusion

which might have been made on an erroneous interpretation of

any provision, then there would be no fetter for adopting

that procedure. In this view of the matter we see no

infirmity with the approach of the Special Bench in

re-examining the issues afresh in the light of the relevant

provisions of the Act, Rules and Regulations. We have also

carefully examined the conclusions of the impugned judgment

of the Special Bench and we are unable to persuade ourselves

to agree with the submission of Mr. Ranjit Kumar that the

said conclusions are either erroneous on interpretation of

relevant provisions or in any way intended to take away the

rights of any persons who have got the benefit of the

earlier Full Bench decision. It is not disputed that with

effect from 29.5.1977 Regulation 17 in the Board of

Secondary Education has been brought into force which makes

it obligatory for every institution to have a Headmaster who

must be a trained graduate and must have 7 years of teaching

experience as a trained graduate teacher. If subsequent to

29.5.1977 any appointment has been made to the post of Head

Master contrary to the aforesaid provisions of the

Regulation then the said appointment would be invalid

appointment and would not confer any right on the appointee.

The expression approval used in the second direction in

Golakh Chandra Mohantys case is referable to the approval

contemplated under Rule 8(2)(b) of the Recruitment Rule and,

therefore, if there has been an approval by the Director

then in such a case the appointment made after the prior

approval would not be invalidated. In our considered

opinion the conclusion of the Special Bench that an approval

of the Inspector is no approval in the eye of law is the

correct position, and as such, does not require any

interference by this Court. We would further make it clear

that a person who has been appointed as Headmaster incharge

cannot claim any right on the basis of that appointment even

if the same might have been approved by any Competent

Educational Authority. The Incharge Headmaster is not the

same as the Headmaster of the school and it merely entitles

a person to remain incharge and discharge the duties of a

Headmaster. In this view of the matter where the

appointment itself has been to the post of Headmaster as

in-charge, and such appointment had been approved, obviously

the said appointee cannot claim to be continued as

Headmaster or to be entitled to get the scale of pay

attached to the post of Headmaster. The Special Bench in

the impugned judgment has correctly analysed the different

provisions of the Rules and Regulations and have rightly

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come to the finding on the directions 2, 3, 4 and 5 of the

earlier Full Bench decision in Golakh Chandra Mohantys

case.

In the aforesaid premises, we do not see any infirmity

with the conclusions arrived at by the Special Bench

requiring interference by this Court. The appeals

accordingly fail and are dismissed.