SMT. SANJUKTA PATTANAIKversusSTATE OF ORISSA AND ORS.

A                        SMT. SANJUKTA PATTANAIK
                                          v.
                         STATE OF ORISSA AND ORS.

                               DECEMBER 9, 1996

B               [K. RAMASWAMY AND G.T. NANA VAT!, JJ.j

          Orissa Education (Recruitment and Conditions of Service of Teache1!
    and Members of the Staff of Aided Education Institutions) Rules, 1974: Rule
    2(b).
c          Se1vice Law-Appellant appointed as Clerk-Subsequently kept ln-
    charge of the teaching post-Writ claiming appointment as teacher-Pursuant
    to interim direction given by High Court provisional approval given by Director
    of Education to appoint her as teacher-On a writ filed by respondenr---State
    Court gave direction to reconsider appointment of appellant-Refusal by
D   directo1-Writ preferred by appellant dismissed-Appeal-Held appointment
    should be in accordance with the Rules-Mere fact that she was kept in charge
    of the t~aching post, does not confer any right to appointment to a post,
    because she was not initially appointed to a teaching post-Mere discharge of
    duties as a teacher do not confer a right to claim the post as a teacher-The
E   provisional approval granted by the Director cannot be construed to be a
    ratification of the petitioner's appointment as teacher.

         Krishan Chandra v. State of Orissa & Ors., CA No. 13755/96 decided
    by Supreme Court on 1.11.1996, referred to.

f        CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
    No. 23361 of 1996.

         From the Judgment and Order dated 18.9.96 of the Orissa High
    Court in OJ.C. No. 2148 of 1995.

G         Vinoo Bhagat for the Petitioner.

          K.N. Tripathi and J.R. Das for the Respondents.

          The following Order of the Court was delivered :

H         This special leave petition arises from the judgment and order of the
                                          698
                    SANJUKTAPATIANAIK v. STATE                             699

Orissa High Court, made on September 18, 1996 in OJC No.2148/95.                  A

      The petitioner was appointed as a clerk on June 1, 1974 against a
vacancy. On August 9, 1990, she seems to have been kepi in-charge of
teaching post in the school. It is her claim that pursuant thereto she was
teaching as a teacher. Since no action was taken by the authorities to have       B
her appointed as a teacher, she filed OJC No. 671/91 on March 27, 1992
and pending disposal interim direction was granted. Pursuant thereto, she
was appointed with provisional approval by the director on August 4, 1992.
On a writ petition filed by the 5th respondent on April 15, 1993 alleging
that she was not entitled to the post, the matter was directed to be
reconsidered. The director refused appeal by proceedings dated March 4,           C
1995 resulting in filing of the present writ petition. It is contended that the
High Court was not right in rejecting the claim of the petitioner, on the
ground that all those cases which were pending consideration, required to
be decided in accordance with Full Bench judgment of the High Court in
OJC No. 5361/91, decided on December 2, 1994. Since the petitioners'              D
claim was already considered and approval was given by the Director, it is
not a pending case and she must, therefore, be appointed as a teacher. We
find no force in the contention.

      It is seen that appointment should be in accordance with the Rules
to a post as defined under Section 2(b) of the Orissa Education (Recruit- E
ment and Conditions of Service of Teachers and members of the Staff of
Aided Education Institutions) Rules, 1974. Since the petitioner was work-
ing in a clerical post, she is not entitled to be appointed and the view taken
by the Director is correct. Admittedly, she was appointed as a clerk. While
working as clerk, the mere fact that she was kept in charge of the teaching F
post, does not confer any right to appointment to a post, because she was
not initially appointed to a teaching post. The Full Ben~h, therefore, has
rightly interpreted that the initial appointment should be to a teaching post
and a clerk, though directed to discharge the duties as a teacher, cannot
claim the post as a teacher. Consequently, the earlier Division Bench
judgment of the High Court was set aside. Resultant operation was that all G
those cases which had become final were directed not to be reopened and
all those cases pending consideration either in writ petition or before the
authorities were required to be dealt with in accordance with the Rules.
Though the petitioner was provisionally given approval pursuant to the
direction issued by the High Court in the said writ petition, that would be H
    700                  SUPREME COURT REPORTS j1996] SUPP. 9 S.C.R.

A only subject to the appointment and since no appointment could be made
    and was in fact not made, the order could not be said to be in accordance
    with the Rules. The provisional approval granted by the Director cannot
    be construed to be a ratification of the petitioner' appointment as teacher.
    The view of this Court in K1ishna Chandra v. State of 01issa & Ors., (CA
    No. 13755/96) decided on November I, 1996 is consistent with the above
B   view and is of no help to the petitioner. Under these circumstances, we do
    not find any illegality in the order passed by the High Court warranting
    interference.

          The special leave petition is accordingly dismissed.

    T.N.A.                                                  Petition dismissed.