STATE OF ORISSA AND ORS.versusRAJENDRA KUMAR DAS AND ANR.

A                        STATE OF ORISSA AND ORS.
                                      v.
                   RAJENDRA KUMAR DAS AND ANR.

                              AUGUST 29, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Service Law :

         Orissa Education Act, 1969/0rissa Education (Recruitment and
C Conditions of Service of Teachers and Members of the Staff of Aided
  Educational Institutions) Rules, 1974-Appointment of Peon-In aided
  educational institutions-State Approval-Denial of-On the ground that
  the approval was beyond prescribed yardstick provided by the statute-
  Writ petition-High Court directed to accord approval equating it to the
  post of 'Daftary'-Plea that post of 'Daftary' being promotional post and
D with higher pay scale, last entrant cannot claim the same-On appeal held:
  The claim of the class JV employees could have been considered by the
  State by promoting one of the existing Class IV employees as 'Daftary'.

         Respondents were appointed to the post of 'Peon' with aided
E educational institutions as defined under Orissa Educational Act, 1969
    and under Orissa Education (Recruitment and Conditions of Service
    of Teachers and Members of the Staff of Aided Educational Institutions)
    Rules, 1974. State did not approve the appointments. Respondents,
    claiming to have been appointed as 'fourth peon' filed writ petitions
    for direction to the concerned authorities to accord approval. High
F   Court equated the "fourth peon" with "Daftary" and held that the
    claim warra · ~d acceptance.

       In apperal to this Court State contended that there was no
  prescription of a 'fourth peon' in the yardstick prescribed; and that
G the post of 'Daftary' being a promotional post and as it carried higher
  scale of pay, the last entrant could not claim the post of 'Daftary'.

         Allowing the appeals, the Court

         HELD: 1. High Court was not justified in directing approval of the
H   writ petitioners' services as "fourth peon". Post of "Daftary" carries
                                      146
                  STATE v. R.K. DAS [PASAYAT, J.]                     147
higher scale of pay and is a promotional post for class IV employees. If a   A
school was entitled to have a "Daftary", certainly the appointment was to
be made by promoting one of lhe 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     B
of the concerned authorities. That way the claims of the writ petitioners
could have been considered by the authorities, on being appropriately
moved by the management. [150-C-E)

     2. The management of the concerned institution shall move the
concerned authorities for approval to the promotional appointment of         C
a class IV employee, as "Daftary". Simultaneoulsy, it can also
recommend for appointment to the Class IV post, in case approval is
accoreded to recommendation for appointment of "Daftary" on
promotion. (150-F-G)

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6844 of D
2003.

     From the Judgment and Order dated 23.8.2000 of the Orissa High
Court in O.J.C. No. 13475 of 1999.

                                 WITH                                        E
     C.A. Nos. 6846, 6848, 6847, 6845 of 2003.

     Jana Kalyan Das for the Appellants.

     Yasobant Das, Bharat Sangal, Ms. Sangeeta Panicker, R.R. Kumar,         F
Ms. K. Sarada Devi, Arvind K. Tiwari, Sudarsh Menon, Manoj Kumar Das
and Sibo Sankar Mishra for the Respondents.

     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J. : Leave granted.                                     G
     As in all these appeals basic factual matrix is the same, except that
the dates are different, and the points of law involved belong to the same
spectrum; they are disposed of by this common judgment.

   , The factual background can be adumbrated concisely as follows:          H
    148                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A       The responded no. I in each case filed a writ application before the
  Orissa High Court claiming that he was appointed as "fourth peon" by the
  management of the 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 Instituti?ns)
B Rules, 1974 (in short '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
  holding the same to be beyond the prescribed y>1rdstick, writ applications
C were filed for direction to the concerned authorities to accord approval to
  the appointment.

         The High Court by the impugned judgments in separate writ
  applications came to hold that the functionaries of the State were not
  justified in refusing to accord approval. Stand of the State Government was
D 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 particular number, one post of "Daftary" was admissible.
E According to the State Government the post of "Daftary" 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 dated 27.3 .1992. The High Court
   on consideration of the rival stands came to equate the "fourth peon" with
  "Daftary" and held the claim of the writ petitioners warranted acceptance.
F
          In support ; the appeals learned counsel for the State of Orissa
    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
G   higher scale of pay. That being the position, the last entrant cannot claim
    the post of the "Daftary".

          Per contra, learned counsel for the concerned writ petitioners submitted
    that the High Court has considered the circulars and come to the right
    conclusion that the claim for appointment as the "fourth peon" is legally
H   enforceable.
                    STATE v. R.K. DAS [PASAYAT, J.]                    149
      At this juncture it is to be noted that at different points of time     A
yardsticks were formulated. Government of Orissa, Education & Y.S.
Department, issued Circular 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:

        "Category of staff                  3 class    5 class   7 class      B

        9 .Peons (I) Office Peon
        (ii) Office Attendanf
        (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:-

             "! am directed to say that the question of fixation of revised
        yardstick for appointment of class IV employees in Non-               E
        government Secondary Schools was under consideration of
        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:                                                        F
        Category of staff                    3 class    5 class 7 class
        (i) Office Peon
        (ii) Science Attendant
        (iii) Night Watcher cum Sweeper                                       G
        Where the roll strength of I 0 Class High School is 500 (five
        hundred) or more, one post of Daftary admissible.

            For the. schools running shift system for shortage of
        accommodation one additional post of peon is admissible.              H
    150                   SUPREME COURT REPORTS [2003] SUPP; 3 S.C.R.

A            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."

          A comparison of the two circulars shows that under 1981 Circular the
    requi$ite roll strength was 100, which was changed to 500 subsequently
B   in the 1992 Circular.

        It is fairly accepted by learned counsel for the writ petitioners that
  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
C as ifthe circulars referred to "fourth peon". This is clear from the reading
  of the various judgments impugned in these appeals.

          It is to be noted that 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 petitioners'
D   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 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
E   institution to decide who is to be promoted and thereafter seek approval
    of the concerned authorities. That way the claims of the writ petitioners
    could have been considered by the authorities, on being appropriately
    moved by the management. It is undisputed that the writ petitioners were
    appointed by the managing committees', may be under a misreading of the
    relevant government orders.
F
        We, therefore, while allowing these appeals 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
  "Daftary". Simultaneously, it can also recommend for appointment to the
  class IV post, in case approval is accorded to the recommendation for
G 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 with law keeping in view the operative
  yardsticks 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
H has been stated above.
                  STATE v. R.K. DAS [PASAYAT, J.]                      151
       Before we part with this case we must indicate that undisputedly there A
were several decision of the Division Bench rendered at earlier points of
time, taking a view contrary to the one taken in the impugned judgments.
Learned counsel for the respondents (writ petitioners) fairly accepted that
it is so. In fact, copy ofone such decision dated 3.12.1998 in O.J.C. 14004/
97 was placed on record. The decisions do not appear to have been brought B
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 Government, before the High Court.

     The appeals are allowed in the aforesaid terms, leaving the parties to
bear their respective costs.                                                  C
K.K.T.                                                   Appeals allowed.