PETITIONER:
SRI RABINARAYAN MOHAPATRA
Vs.
RESPONDENT:
STATE OF ORISSA AND ORS.
DATE OF JUDGMENT02/04/1991
BENCH:
KULDIP SINGH (J)
MISRA, RANGNATH (CJ)
KANIA, M.H.
CITATION:
1991 AIR 1286 1991 SCR (1) 990
1991 SCC (2) 599 JT 1991 (2) 82
1991 SCALE (1)578
ACT
Orissa Aided Educational Institution (Appointment of Teachers Validation) Act, 1989-Section 3-Legislative intention of -Appointment of teacher on 89 day basis with one day break-Discriminatory.
Orissa Aided Education Institutions (Appointment of Teachers Validation) Act,1989-Section 3-Scope and application of - Conditions to be satisfied.
HEADNOTE
The appellant was appointed as Hindi Teacher in the M.E. School for a period of 89 days from July 12,1982 by the District Inspector (Schools) on the recommendation of the Managing Committee of the School. He continued to serve the school with repeated spells of 89 day-appointments and one day break in between the spells, till may 25, 1986. He was not paid the salary for the period of summer vacations during all these years.
Although the appellant continues to serve the school to date under orders of the managing committee, but his appointment after 1986 was not approved by the educational authorities, in spite of the resolution of the managing committee dated July 6,1987.
The appellant filed a writ petition before the High Court claiming regularisation with effect from July 12,1982, contending that he was entitled to be regularsed in terms of the provisions of Section 3 of the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1989.
The High Court dismissed the petition holding that the appellant was not entitled to the benefit of the Validation ACt, against which present appeal was filed by the appellant contending that his services were to be regularised with effect from July 12, 1982 under the provisions contained in Section 3 of the Validation Act.
Allowing the appeal, this Court,
991
HELD:1.1. The Validation Act has been enacted by the Orissa Legislature with the obvious object of granting relief to those members of the teaching community who are being exploited for years together by keeping them in short spell appointments like 89 day-appointments with one day break and in the process denying them their rightful dues and other service benefits.[994G-995A]
1.2 An appointment on 89 day basis with one day break which deprives a teacher of his salary for the period of summer-vacation and other service benefits, is wholly arbitrary and suffers from the vice of discrimination. The Validation Act covers the field upto December 31, 1984. The State of Orissa will do well to consider the cases of all those who have completed one year or more as ad-hoc teachers after December 31,1984 and come-out with a scheme or any other appropriate measure to regularise their services.[995C-D]
2. To come with in the preview of the Validation Act the following conditions are to be satisfied:
1. The appointment by the managing authority of the school on ad hoc basis must be on or after the 1st December 1976 but not later than 31st December 1984.
2. The services as such teacher is continuous for a period of at least one year without any break or with a break or breaks in one or more aided schools;
3. Is continuing as such teacher or his services were terminated after the 31st December ,1984 save for misconduct.[995E-G]
2.2. The appellant was appointed on July 12,1982 and has been working with the approval of the authorities for almost 4 years with short breaks. The managing committee is still utilising his services though there is no approval by the educational authorities for the period subsequent to 1986. The case of the appellant is, thus, fully covered by Section 3 of the Validation Act.[995G-996A]
3. The High Court erred in denying the benefit of the Validation Act to the appellant on the ground that his initial appointment for 89 days was conditioned by the stipulation that he would continue until replaced by a candidate from the select list. The High Court read into the Act what was not there,[996A-B]
992
Rattan Lal v. State of Haryana, A.I.R. 1987 S.C. 478, followed.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1396 of 1991.
From the Judgement and Order dated 8.3.1990 of the Orissa High Court in Case No. 2867 of 1987.
Mrs. Uma Metha Jain and M.A. Firoz for the Appellant.
Ashok Kumar Panda for the Respondents.
The Judgement of the Court was delivered by
KULDIP SINGH, J. Special leave granted.
Rabinarayan Mohapatra the appellant was appointed as Hindi Teacher in Bani-gochha, M.E. School (Orrisa) for a period of 89 days or till a candidate selected by the State Selection Board was made available. He joined the school on July 12, 1982. The appointment was made by the District Inspector (Schools) on the recommendation of the managing committee of the school. He continued to serve the school with repeated spells of 89 day-appointments and one day break in between the spells, till May 25, 1986. He was not paid the salary for the period of summer vacations during all these years. Although the period of summer vacation during all these years. Although the appellant continues to serve the school to-date under orders of the managing committee yet his appointment after 1986 has not been approved by the educational authorities. The managing committee even passed a resolution on July 6,1987, requesting the educational authorities of the State of Orissa to approve the continuous appointment of the appellant as Hindi Teacher but no action was taken by the said authorities.
The appellant filed a writ petition under Article 226 of the Constitution of India before the Orissa High Court claiming regularisation as Hindi Teacher with effect from July 12,1982. The only argument raised before the High Court was that the appellant was entitled to be regularised in terms of the provisions of Section 3 of the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1989 (hereinafter called ’the Validation Act’). The relevant part of Section 3 of the Act is reproduced hereinafter :
3. Validation of certain appointments - Not
withstanding
993
anything contained in the Education Act
or in the Rules or Regulations framed thereunder.-
(a) graduate teacher, intermediate and
matriculate teachers, physical education teachers
and classical teachers and Hindi teachers of aided
schools appointed by the managing authorities of
such schools on ad hoc basic on or after the 1st
December , 1976 but not later than the 31st
December, 1984;
(b) ..............
(c) ...............
who have continuous service as such teachers or
lecturers for a period of at least one year without
any break or with a break or breaks in one or more
aided schools or Colleges and who are continuing as
such teachers or whose services have been
terminated after the 31st December ,1984 save for
misconduct or..................shall for all
intents and purposes, be deemed to have been
validly and regularly appointed, and no such
appointment shall be challenged in any court of law
merely on the ground that the appointment was made
otherwise than in accordance with procedure laid
down in the Education Act and the Rules and
Regulations framed
thereunder;..............................
The High Court rejected the prayer for regularisation, and held that the appellant was not entitled to the benefit of the Validation Act, on the following reasoning;
"Admittedly, the petitioner was appointed
on 12.7.1982 and continued till 18.7.1986 with
breaks in between and the petitioner’s appointment
was conditioned by the stipulation that he would
continue until replaced by a candidate from the
Select List. His case, therefore, will not come
within the preview of the Validation Act and,
therefore, the question of issuing any direction to
regularise his service in a substantive vacancy
because of the Validation Act does not arise."
We have heard Mrs. Uma Mehta Jain, learned counsel for
the applellant. This Court in Rattan Lal v. State
of Haryana. A.I.R. 1987 S.C. 478 speaking through
Venkataramaiah, J. (as the learned Judge then was )
observed as under:
994
"The State Government of Haryana has
failed to discharge that duty in these cases. It
has been appointing teachers for quite some time on
an ad hoc basis for short periods as stated above
without any justifiable reason. In some cases the
appointments are made for a period of six months
only and they are renewed after break of a few
days. The number of teachers in the State of
Haryana who are thus appointed on such ad hoc basis
is very large indeed. If the teachers had been
appointed regularly, they would have been entitled
to the benefits of summer vacation along with the
salary and allowances payable in respect of that
period and to all other privileges such as casual
leave, medical leave, maternity leave etc.
available to all the Government servants. These
benefits are denied to these ad hoc teachers
unreasonably on account of this pernicious system
of appointment adopted by the State Government.
These ad hoc teachers are unnecessarily subjected
to an arbitrary ‘hiring and firing’ policy. These
teachers who constitute the bulk of the educated
unemployed are compelled to accept these jobs on an
ad hoc basis with miserable conditions of service.
The Government appears to be exploiting this
situation. This is not a sound personnel policy. It
is bound to have serious repurcussions on the
education institutions and the children studying
there. The policy of ‘ad hocism’ followed by the
State Government for a long period has led to the
breach of Article 14 of the Constitution. Such a
situation cannot be permitted to last any longer.
It is needless to say that the State Government is
expected to function as a model employer".
"We strongly deprecate the policy of the
State Government under which ‘ad hoc’ teachers are
denied the salary and allowances or the period of
the summer vacation by resorting to the fictional
breaks of the type referred to above. These ‘ad
hoc’ teachers shall be paid salary and allowances
for the period of summer vacation as long as they
hold the office under this order. Those who are
entitled to maternity or medical leave shall also
be granted such leave in accordance with the
rules."
The Validation Act has been enacted by the Orissa legislature with the obvious object of granting relief to those members of teaching community who are being exploited for years together by keeping
995 them in short spell appointments like 89 day-appointments as here with one day break and in the process denying them their rightful-dues and other service benefits. Inspite of repeated depreciation by this Court the practice continues to be followed by various State Governments in the country. Under the Constitution the State is committed to secure right to education for all citizens. Bulk of our population is yet illiterate. Till the time illiteracy is effaced from the country the resolution enshrined in the Preamble cannot be fulfilled. Education is the dire need of the country. There are neither enough schools nor teachers to teach. Insecurity is writ-large on the face of the teaching community because of nebulous and unsatisfactory conditions of service. In order to make the existing educational set-up effective and efficient it is necessary to do away with adhocism in teaching appointments. An appointment on 89 day basis with one day break which deprives a teacher of his salary for the period of summer-vacation and other service benefits, is wholly arbitrary and suffers from the vice of discrimination. The Validation Act covers the field upto December 31, 1984. The State of Orissa will do well to consider the cases of all those who have completed one year or more as ad-hoc teachers after December, 31, 1984 and come-out with a scheme or any other appropriate measure to regularise their services.
Mrs. Jain contended that on the plain reading of
Section 3 of the Validation Act the appellant is
entitled to be regularised as Hindi Teacher with
effect from July 12,1982. To come within the
purview of the Validation Act the following
conditions are to be satisfied:
1. The appointment by the managing authority
of the school on ad hoc basis must be on or after
the 1st December, 1976 but not later than 31st
December, 1984;
2. The service as such teacher is continuous
for a period of atleast one year without any break
or with a break or breaks in one or more aided
schools;
3. Is continuing as such teacher or his
services were terminated after the 31st December,
1984 save for misconduct.
The apellant was appointed on July 12,1982 and has been working with the approval of the authorities for almost 4 years with short breaks. The managing committee is still utilising his services though there is no approval by the educational authorities for the period subsequent to 1986. It is no body’s case that his services were
996 ever terminated on grounds of inefficiency or misconduct. The case of the appellant is, thus, fully covered by Section 3 of the Validation Act. We are of the view that the High Court erred in denying the benefit of the Validation Act to the appellant on the ground that his initial appointment for 89 days was conditioned by the stipulation that he would continue until replaced by a candidate from the select list. The High Court read into the Act what was not there. In response to the notice issued in the Special Leave Petition the managing committee through its Secretary-cum-Head Master has stated that the appellant is still continuing to serve as Hindi teacher in the school under the orders of the managing committee.
We therefore, set aside the judgment of the High Court and direct the respondents to treat the appellant as the regularly appointed Hindi teacher in the school with effect from July 12, 1982. The appeallant shall be entitled to his salary, including the salary for summer vacations and other breaks which must be taken as non est, from the date of his regular appointment i.e. July 12, 1982. The respondents are directed to pay the arrears of salary and other emoluments due to the appellant as a result of his regularisation within a period of 3 months from today. V.P.R. Appeal allowed,