STATE OF ORISSA AND ORS.versusLOKNATH RAY AND ORS.

                          STA TE OF ORISSA AND ORS.
                                      v.                                            A
                           LOKNATH RAY AND ORS.

                                  MARCH 15, 2005

                   [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]


          Service Law :

           Orissa Educational Act, 1969/0rissa Education (Recruitment and
     Conditions of Service of Teachers and Members of the Staff of Aided C
     Educational Institutions) Rules I 974 and Circulars fixing yardsticks for fixation
     of Staff Strength :

           Appointment of Respondent No. I-incumbent as Peon/fourth peon by
     School Management-Approval not granted by State authorities-Challenge
     to-Allowed by High Court-On appeal, Held: Post mentioned in the Circulars D ,
     is 'Daftry' and not fourth peon '-Post of Daftry carries higher scale of pay
     and is a promotional post-Hence, High Court was not justified in directing
     appointment of the incumbent as fourth peon-However, if the school has


--   sanctioned the post of 'Daftry ', the appointment of the incumbent for Class-
     IV post could be made by promoting one of the three existing Class-JV
     employees-School Management directed to consider the claim ofthe incumbent E
     accordingly-Directions issued

          Respondent No. 1 was appointed as 'fourth Peon' in a School.
     However, the State Authorities did not approve the appointment of
     respondent No. 1. Challenging the decision of the Authorities, the              F
     incumbent filed a writ petition, which was allowed by the High Court
     holding that the State authorities were not justified in refusing to grant
     approval for the appointment made by the School.

           Disposing of the appeal, the Court
                                                                                    G
           HELD : 1.1. The expression used in the Circulars issued by the
     Government of Orissa fixing standard staff for non-governmental
     Secondary Schools is "Daftary" and not "fourth peon". The High Court
     seems to have fallen in error by proceeding on the basis as if the Circulars
     referred to "fourth peon". The post of "Daftary" carries higher scale of
                                          sn                                         H
    874                      SUPREME COURT REPORTS                 [2005] 2 S.C.R.

A   pay and is a promotional post for class IV employees. That being the
    position, the High Court was not justified in directing appointment of the
    writ petitioner as "fourth peon". But, if the school was entitled to have
    the post of "Daftary", certainly the appointment was to be made by
    promoting one of the three Class-IV employees, namely, Office Peon,
B   Office Attendant and Night Watcher-cum-Sweeper, there being no other
    class IV post in the school. It is for the Managing Committee of the school
    to decide who is to be promoted and thereafter seek approval of the
    concerned State Authorities. That ·way the claim of the wri.t petitioner
    could have been considered by the authorities, on being appropriately
    inoved by the school management. (877-C-D-E]
c
          1.2. The Management of the respondent-institution is directed to
    move the concerned authorities for approval for the promotional
    appointment from class IV employee of the school. Simultaneously, it can
    also recommend for appointment of the incumbent for class IV post in
    accordance with law keeping in view the operative yardstick in force at
D   the time of the appointment. (877-F-G]
            State of Orissa and Ors. v. Rajendra Kumar Das and Anr., (2003) 10
    sec 4U, referred to.
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1779 of
E   2005.

         From the Judgment and Order dated 30. l 0.2002 of the Orissa High
    Court in O.J.C. No. 12815 of 1999.

            Jana Kalyan Das for t~e Appellants.
F           The Judgment of the Court was delivered by

            AR:IJIT PASAYAT, J. Leave granted.

            The factual background can be adumbrated concis~ly as fol.lows :

G         The respondent no. I filed a writ application before the Orissa High
    Court claiming that he was appointed as "fourth peon" by the Management
    of the concerned institution i.e. Samanta Singhar Higli School in district of
    Jaipur, Orissa (Respondent no. 2) which is an "aided educational institution"
    as defined under the Orissa Education Ad, I 969 (in short the 'Act') and
H   Orissa Education (Recruitment and Conditions of Service of Teachers and
                 STATEOFORISSA v. L. RAY [PASAYAT, J.]                       875

Members of the Staff of Aided Educational Institutions) Rules, 1974 (in short A
'Recruitment Rules'). It is not in dispute that if an institution is an aided
educational institution, same is governed by the Act and rules framed
thereunder. The Recruitment Rules are framed under the Act. As the
functionaries of the State did not approve the appointment of respondent no.
I holding the same to be beyond the prescribed yardstick, writ application B
was filed for direction to the concerned authorities to accord approval to the
appointment.

      The High Court by the impugned judgment came to hold that the
functionaries of the State were not justified in refusing to accord approval.
Stand of the State Government was that circular dated 8. 7.1981 contained C
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 particular number, one post of
"Daftary" was admissible. According to the State Government the post of
"Daftary" is a promotional post and, therefore, the concept of a "fourth D
peon" as sought to be canvassed by the writ petitioner is without any legal
foundation. The position was further clarified by Circular dated 27.3.1992.
The High Court on consideration of the rival stands came to equate the
"fourth peon" with "Daftary" and held that the claim of the writ petitioner
warranted acceptance.
                                                                                    E
       In support of the appeal, learned counsel for the State ofOrissa submitted
that the High Court missed to consider several vital aspects. Firstly, there is
no prescription of a "fourth peon" in the yardstick prescribed. The post of
"Daftary " is a promotional post and it carries higher scale of pay. That
being the position, the last entrant cannot claim the post of the "Daftary".        F
      Reliance was placed on decision of this Court in State of Orissa and
Ors. v. Rajendra Kumar Das and Anr., and connected matters [2003] I 0 SCC
411 in support of the stand.

      There is no appearance on behalf of the respondents.                          G
      At this juncture it is to be noted that at different points of time yardsticks
were formulated. Government ofOrissa, Education & Y.S. Department, issued
Cfrcular No. 28365-EYS dated 8.7.81 fixing standard staff for the non-
government secondary schools. So far as peons are concerned, the relevant
portions of the circular read as follows :                                           H
    876                      SUPREME COURT REPORTS                 [2005] 2 S.C.R.

A          "Category of staff               3 class      5 class    7 class



           9. Peons (I) Office Peon

          (ii) Office Attendant
B
           (iii) Night watcher cum
                 sweeper

           Notes

c
           (C) (ii) Where the roll strength of the school exceeds· 100, one post
           of Daftary is admissible.



D        Subsequently by another circular No. 155000-XVIIEP-50/91-E, dated
    27th March, 1992 the position was further clarified as under : -

               "I am directed to say that the qu~stion of fixation of revised
           yardstick for appointment of class IV employees in Non-government
           Secondary Schools was under consideration of Government for some
E          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          5 class            7 class

F          (i) Office Peon

           (ii) Science Attendant

           (iii) Night Watcher cum     l·
                Sweeper
G          Where the roll strength of 10 Class High School is 500 (five hundred)
           or more, one post of Daftary is admissible.

               For the schools running shift system for shortage of
           accommodation one additional post of peon is.admissible.

H
                STATEOFORISSA v. L.RAY[PASAYAT,J.]                     877
       The yardstick will come into force with effect from the 1st January A
       1992 and Government order referred to above stands modified to the
       extent indicated above.''

      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.                                                          B
      The expression used in the two circulars is "Daftary" and not "fourth
peon". The High Court seems to have fallen in error by proceeding on the
basis as if the circulars referred to "fourth peon". This is clear from the
reading of the judgments impugned in the present appeal.
                                                                              c
       It is to be noted that the post of "Daftary" 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 petitioner's
services as "fourth peon". But one significant aspect cannot be lost sight of.
If a school was entitled to have a "Daftary", certainly the appointment was D
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 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 E
management. It is undisputed that the writ petitioner was appointed by the
managing committee, may be under a misreading of the relevant government
order. The above position was indicated in Rajendra Kumar Das 's (supra).

      We, therefore, while allowing this appeal direct that the management of
the respondent-institution shall move the concerned authorities for approval F
to the promotional appointment of a class IV employee, as "Daftary".
Simultaneously, it can also recommend for appointment to the class IV post,
in case approval is accorded to the recommendation for appointment of
"Daftary" on promotion. The decision on both motions shall be taken within
three months from the date of submission of the recommendation in accordance G
with law keeping in view the operative yardstick in force at the time of
appointments were made. Even if there has been refusal earlier, the matter
shall be reconsidered in the light of what has been stated above.

    Before we part with this case we must indicate, as was done in Rajendra
Kumar Das 's (supra), that undisputedly there were several decisions of the H
    878                     SUPREME COURT REPORTS                    [2005] 2 S.C.R.

A Division Benches rendered at earlier point of time, taking a view contrary to
    the one taken in the impugned judgment. In fact, one such order is dated
    3.12.1998 in 0.J.C. No. 14004/97 referred to Rajendra Kumar Das 's (supra).
    The decisions do not appear to have been brought to the notice of the learned
    Judges hearing the writ petitions. This speaks volumes about the seriousness
    exhibited by learned counsel appearing for the parties, particularly the State
B   Government, before the High Court.

          The appeal is allowed in the aforesaid terms, leaving the parties to bear
    their respective costs.


c S.K.S.                                                      Appeal disposed of.