Holding

The circulars prescribe the post of "Daftry" and not "fourth peon"; "Daftry" is a promotional class‑IV post, and the High Court was incorrect in directing approval for a "fourth peon" appointment.

Summary

The petitioner, Khiroud Kumar Nayak, was appointed as "fourth peon" by the managing committee of an aided school under the Orissa Education Act, 1969. The State refused to approve the appointment, claiming it exceeded the prescribed staff yardstick, and the petitioner filed a writ petition. The Orissa High Court allowed the writ, equating the "fourth peon" with the post of "Daftry" and directing approval. On appeal, the Supreme Court examined the 1981 and 1992 government circulars and held that the term "fourth peon" does not appear in the yardstick; the circulars prescribe the post of "Daftry", which is a promotional class‑IV position with a higher pay scale. Consequently, the High Court erred in directing approval for a "fourth peon" appointment. The Court directed the school management to seek approval for promotion of an existing class‑IV employee to "Daftry" and, if approved, to consider appointment to the class‑IV post, within three months.

Issues considered

Whether the term "fourth peon" is prescribed in the staff yardstick under the relevant government circulars.
Whether an appointment as "fourth peon" is permissible under the Orissa Education (Recruitment and Conditions of Service) Rules, 1974.
Whether the High Court erred in equating "fourth peon" with the post of "Daftry".
What procedure should be followed for the appointment or promotion to the post of "Daftry" in an aided educational institution.

Legislation cited

Subjects

aided educational institutionappointmentfourth peonDaftrystaff yardstickpromotionOrissa Education ActRecruitment Ruleswrit petitionjudicial review

Judgment

/

[2009) 2 S.C.R. 971

STATE OF ORISSA AND ORS. A
""i
__, V.
KHIROD KUMAR NAYAK
Civil Appeal No. 1158 of 2009
FEBRUARY 23, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.].
Orissa Education (Recruitment and Conditions of
') Service of Teachers and Members of the Staff of Aided
Educational Institutions) Rules, 1974 - Circular No. 28365-
EYS dated 8. 7.1981 and Circular no.155000-XVllEP-50!91- c
E dated 27. 3. 1992 issued by Government of Orissa, Education
and Y S. Department - Yardstick for fixation of standard staff
prescribed in the circulars - Claim for appointment as 'Fourth
peon' - Held: There is no prescription of a 'fourth peon' in the
yardstick prescribed - Expression used in the two circulars is D
'Oaftry' and not 'fourth peon' - Post of Daftry is a promotional
post and it carried higher scale of pay - High Court erred in
equating the 'fourth peon' with 'Daftry' and in upholding the
claim for appointment as 'fourth peon'.
E
The claim of respondent no.1 was that he was

.... •
{
appointed as 'fourth peon' by the management of an aided
educational institution as defined under the Orissa
Education Act, 1969. As the State did not approve the
" appointment, holding the same to be beyond the
prescribed yardstick, writ application was filed for F
direction to the concerned ~uthorities to accord approval
to the appointment. High Court allowed the writ
application by equating the 'fourth peon' with 'Daftry'.
In appeal to this Court, appellant-State contended G
that there was no prescription of a 'fourth peon' in the
..,.. - yardstick prescribed; and that the post of 'Daftry' was a
promotional post which carried higher scale of pay and
...,
\
so last entrant was not entitled to the post of 'Daftry' .
971 H
972 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Allowing the appeal, the Court ,.. )-

HELD: 1. Government of Orissa, Education and Y.S.
Department, issued Circular No. 28365-EYS dated
8.7.1981 fixing standard staff for the ·non-government
secondary schools. The position was further clarified by
B Circular dated 27 .3.1992. A comparison of the two circulars
shows that under 1981 Circular the requisite roll strength
was 100, which was changed to 500 subsequently in the
1992 Circular. The expression used in the two circulars is
"Da~ry" and not "fourth peon". The High .Court seemed
C · to have fallen in errc;>r by proceeding on .the basis as if the ,_
circulars referred to "fourth peon". The post of "Daftry"
carries higher scale of pay and is a promotional post for
class IV employees. That being the position, the High Court
was not justified in directing approval of the writ
D petitioner's services as "fourth peon". But one significant
aspect cannot be lost sight of...If a school was entitled to ;
have a "Daftry", certainly the appointment was to be made
by promoting one of the three persons i.e. Office Peon,
Office Attendant and Night Watcher-cum-Sweeper, there
being no other class IV post in the institution. It is for the
E Managing Committee of the institution to decide who is
to be promoted and thereafter seek approval· of the
concerned authorities. That way the claim of the writ
petitioner could have been considered by the authorities,
on being appropriately moved by the management. It is
F undisputed that the writ petitioner was appointed by the
Managing Committee, may be under a misreading of the
relevant government orders. [Paras 8, 10, 11, 12] [97 4-F;
974-C; 975-H; 976-A-B; 976-C-E]
2. The management of the concerned institution shall
G move the concerned authorities or approval to the
promotional appointment of a class IV employee, as
"Daftry". Simultaneously, it can also recommend for
appointment to the class IV post, in case approval is
-
accorded to the recommendation for appointment of
H "Daftry" on promotion. [Para 13] [976-F]
STATE OF ORI SSA AND ORS. V 973
KHIROD KUMAR NAYAK

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1158 A
• of 2009
From the Judgement and Order dated 27.11.1996 of the
Hon'ble High Court of Orrisa at Cuttack in OJC No. 6857 of
1996.
B
Jana Kalyan Das, for the Appellant.
B.S. Sharma, M.K. Michael, for the Respondent.
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J. c
1. Delay condoned.
2. Leave granted.
3. Challenge in this appeal is to the order of a Division D
"\
Bench of the Orissa High Court. Factual background can be
adumbrated concisely as follows:
4. The responded no.1 filed a writ application being OJC
No.6857 of 1996 before the Orissa High Court claiming that he
was appointed as "fourth peon" by the management of the E
concerned institution, which is an "aided educational institution"
as defined under the Orissa Education Act, 1969 (in short the
'Act') and Orissa Education (Recruitment and Conditions of
"' Service of Teachers and Members of the Staff of Aided _,,.,.........
Educational Institutions) Rules, 1974 (in short 'Recruitment F
Rules'). It is not in dispute that if an institution is an aided
educatipnal institution, same is governed by the Act and rules
frame'd thereunder. The Recruitment Rules are framed under
the Act. As the functionaries of the State did not approve the
appointment holding the same to be beyond the prescribed G
yardstick, writ applications were filed for direction to the
... concerned authorities to accord approval to the appointment.
5. The High Court by the impugned judgment in writ
application came to hold that the functionaries of the State were
not justified in refusing to accord approval. Stand of the State H
974 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Government was that circular dated 8. 7 .1981 contained yardstick
for fixation of standard staff for the Non-Government Secondary •
Schools in supersession of earlier circulars. Under the "category
of staff' the number of peons which can be appointed was clearly
spelt out. Only if the roll strength of the institution exceeded a
B particular number, one post of "Daftry" was admissible.
According to the State Government the post of "Daftry" is a
promotional post and, therefore, the concept of a "fourth peon"
as sought to. be canvassed by the writ petitioners is without any
<'
legal foundation. The position was further clarified by Circular
c . dated 27 ..3.1992. The High Court on consideration of the rival '\
stands came to equate the "fourth peon" with "Daftry" and held
the claim of the writ petitioner warranted acceptance.
6. In support of the appeal, learned counsel for the State of
Orissa submitted that the High Court missed to consider several
D vital aspects. Firstly, there is no prescription of a "fourth peon" ,.
in the yardstick prescribed. The post of "Daftry" is a promotional
post and it carries higher scale of pay. That being the position,
the last entrant cannot claim the post of the "Daftry".
7. Per contra, learned counsel for the writ petitioner
E
submitted that the High Court has considered the circulars and
come to the right conclusion that the claim for appointment as ,"
I
the "fourth peon" is legally enforceable.
. ......_ ~
8. At this juncture it is to be noted that at different points of
F time yardsticks were formulated. Government of Orissa,
Education & Y.S. Department, issued Circular No. 28365-EYS
dated 8. 7.1981 fixing standard staff for the non-gove~nment
secondary schools. So far as peons are concerned, the relevant
portions of the circular read as follows:
G "Category of staff 3 cl~~s 5class. 7 class
-~

..............
9.Peons (I) Office Peon 1 1 1

(ii) Office Attendant 1 1 1
H
STATE OF ORISSA AND ORS. V. 975
KHIROD KUMAR NAYAK [DR. ARIJIT PASAYAT, J.]

(iii) Night watcher cum A
sweeper 1 1 1
Notes

B
C)(ii) Where the roll strength of the school exceeds 100
one post of Daftry is admissible.

9. Subsequently by another circular No.155000-XVllEP-
50/91-E, dated 2ih March, 1992 the position was further C
clarified as under:-
"I am directed to say that the question of fixation of revised
yardstick for appointment of class IV employees in Non-
government Secondary Schools was under consideration of 0
Government for some time past. After careful consideration
Government have been pleased to decide that the yardstick for
class IV employees of Non-Government Secondary Schools
shall be as follows:
Category of staff 3 class 5class 7 class E
(i) Office Peon 1 1 1
(ii) Science Attendant 1 1 1
(iii) Night Watcher cum 1 1 1
Sweeper F

Where the roll strength of 10 Class High School is ·
500 (five hundred) or more, one post of Daftry admissible.
For the schools running shift system for shortage of
accommodation one additional post of peon is admissible . G
....
The yardstick will come into force with effect from the 1st
January 1992 and Government order referred to above
stands modified to the extent indicated above."
10. A comparison of the two circulars shows that under H
976 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 1981 Circular the requisite roll strength was 100, which was
changed to 500 subsequently in the 1992 Circular.
11. It is fairly accepted by learned counsel for the writ
petitioner that the expression used in the two circulars is "Daftry"
and not "fourth peon". The High Court seems to have fallen in
B
error by proceeding on the basis as if the circulars referred to
"fourth peon". This is clear from the reading of the various
judgments impugned in this appeal.
12. It is to be noted that post of "Daftry" carries higher scale
c of pay and is a promotional post for class IV employees. That
being the position, the High Court was not justified in directing
approval of the writ petitioner's services as "fourth peon". But
one significant aspect cannot be lost sight of. If a school was
entitled to have a "Daftry", certainly the appointment was to be
0 made by promoting one of the three persons i.e. Office Peon,
Office Attendant and Night Watcher-cum-Sweeper, there being
no other class IV post in the institution. It is for the Managing
Committee of the institution to decide who is to be promoted
and thereafter seek approval of the concerned authorities. That
E way the claim of the writ petitioner could have been considered
by the authorities, on being appropriately moved by the
management. It is undisputed that the writ petitioner was
appointed by the mana.ging committees', may be under a
misreading of the relevant government orders.
F 13. We, therefore, while allowing this appeal direct that
the management of the concerned institution shall move the
concerned authorities for approval to the promotional
appointment of a class IV employee, as "Daftry". Simultaneously,
it can also recommend for appointment to the class IV post, in
G case approval is accorded to the recommendation for
appointment of "Daftry" on promotion. The decision on both
motions shall be taken within three months from the date of
submission of the recommendation in accordance with law
keeping in view the operative yardsticks in force at the time of
H appointments were made. Even if there has been refusal earlier,
STATE OF ORISSA AND ORS. V. 977
KHIROD KUMAR NAYAK [DR. ARIJIT PASAYAT, J.]

the matter shall be reconsidered in the light of what has been A
stated above.
14. Before we part with this case we must indicate that
undisputedly there were several decision of the Division Bench
rendered at earlier points of time, taking a view contrary to the
8
one taken in the impugned judgment. Learned counsel for the
respondent (writ petitioner) fairly accepted that it is so. In fact,
copy of one such decision dated 15.7.1996 in O.J.C. 5108/96
was placed on record and it has been brought to the notice of
the learned Judges hearing the writ petition.
c
15. The appeal is allowed in the aforesaid terms, leaving
the parties to bear their respective costs.

D.G. Appeal allowed.