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State Of Orissa Represented By The ... v. State Of Orissa Represented By The
Structured Summary of the Opinion
Factual and Procedural Background
The short question before the Court was: what is the true meaning of the word "employee" in Rule 8(2)(b) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 ("the 1974 Rules")?
The petitioner, employed as a clerk at Janata High School, Godabhaga, was appointed on 20-3-1984 with a B.A. qualification. While serving as a clerk he obtained his B.Ed. in June 1989. In July 1989 a vacancy for a section (Trained Intermediate) teacher arose in the school and the petitioner represented to the Director, Secondary Education, Orissa, claiming promotion under Rule 8(2)(b) on the basis that he was an "employee" possessing the prescribed qualification and therefore eligible for promotion. The representation was not acted upon and the petitioner filed a writ petition seeking a direction to promote and appoint him to the vacancy.
The opposite parties (the State/Directorate) filed a counter affidavit contending that Rule 8(2)(b) permits promotion to a post carrying a higher scale of pay only for employees who are in the teaching line; since the petitioner was a clerical (non-teaching) staff member he was not entitled to be considered for promotion to a teaching post.
The question was significant because earlier decisions — notably Akshaya Kumar Das v. State of Orissa (OJC No. 3700 of 1987 disposed of on 12.11.1990) and OJC No. 6717 of 1991 (disposed of on 27-3-1992) — had taken the view that the word "employee" could be confined to teachers only in the context of promotion to a teaching post carrying a higher pay scale. That ratio was questioned and the matter was referred to a larger Bench; this Full Bench heard and decided the present matter.
Legal Issues Presented
- What is the true meaning of the word "employee" occurring in Rule 8(2)(b) of the 1974 Rules — specifically, whether it includes members of non-teaching staff for the purpose of promotion to teaching posts carrying higher scale of pay.
Arguments of the Parties
Petitioner's Arguments
- The petitioner, a clerk who subsequently obtained the prescribed teaching qualification (B.Ed.), claimed entitlement to promotion under Rule 8(2)(b) because he is an "employee" of the institution possessing the required qualification and experience.
- Learned counsel for the petitioner argued that the definition of "employee" in later or related rules (specifically the Orissa Education (Leave of Teachers and Other Members of the Staff of Aided Educational Institutions) Rules, 1977, and the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981) — where "employee" includes both teaching and non-teaching staff — could be imported to interpret Rule 8(2)(b) of the 1974 Rules by virtue of Rule 2(2) of the 1974 Rules (which states that words not defined in the 1974 Rules have the meaning assigned in the Act).
- Additional counsel (Shri J.K. Rath and Shri D.K. Mohapatra) supported the contention that an extended meaning of "employee" should include non-teaching staff possessing prescribed educational qualifications, as it would be beneficial and open an avenue for such staff to be considered for promotion to teaching posts.
Respondent's (State/Opposite Parties') Arguments
- The State contended that Rule 8(2)(b) was intended to allow promotion only for employees who are already in the teaching line; non-teaching staff (such as clerks) are not entitled to be considered for promotion to teaching posts under that rule.
- It was further submitted that the Selection Board (Conduct of Business and Discharge of Functions) Regulations, 1976 (framed under Rule 4(7) of the 1974 Rules) set standards and assessment procedures specifically for selection and appointment to teaching posts, and allowing non-teaching staff to be promoted to teaching posts by bypassing the Selection Board would frustrate the purpose of those Regulations.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Akshaya Kumar Das v. State of Orissa (OJC No. 3700 of 1987) disposed of on 12.11.1990 | Held that the word "employee" in Rule 8(2)(b) may be confined to teachers when promotion is contemplated to a post of teacher carrying higher scale of pay. | The Full Bench reviewed this earlier ratio and concluded that Akshaya Kumar was not correctly decided. The Court held that "employee" does not include non-teaching staff for the purposes of Rule 8(2)(b), thereby rejecting the view taken in Akshaya Kumar. |
| OJC No. 6717 of 1991 disposed of on 27-3-1992 | Followed the ratio of Akshaya Kumar (supra) on the meaning of "employee" in Rule 8(2)(b). | The Court noted that this case followed Akshaya Kumar and, in light of the Full Bench's analysis, the earlier approach followed in that case is inconsistent with the Court's present conclusion that "employee" excludes non-teaching staff for the purposes of Rule 8(2)(b). |
Court's Reasoning and Analysis
The Court's analysis proceeded on the textual and structural interpretation of the 1974 Rules and the relevant provisions:
- Contextual reading of the 1974 Rules: The Court observed that the 1974 Rules regulate recruitment and conditions of service of both teaching and non-teaching staff, but that Chapter II pertains exclusively to appointment to teaching posts while Chapters III and IV apply to both teaching and non-teaching staff. Rule 8, where the word "employee" appears, is located in Chapter II and is an exception to Rule 5 (which requires selection by the Selection Board for filling teaching vacancies).
- Scope of Rule 8(2)(b): Rule 8(2)(b) creates three contingencies in which the Selection Board procedure can be avoided; the third contingency is filling a vacancy in a post carrying a higher scale of pay by an "employee" of the same institution who possesses the prescribed qualification and experience and whose performance in respect of the post he holds has been satisfactory.
- Definitions and cross-references: The Court noted that "employee" is not defined in the 1974 Rules or in the Orissa Education Act, 1969. The petitioner sought to import definitions from the 1977 Rules and the 1981 Rules on the basis of Rule 2(2) of the 1974 Rules. The Court rejected this approach because the 1974 Rules' rule-making authority did not provide for importing definitions from other rules unless expressly stated. The Court pointed out that other rule-sets (for example the 1979 Intertransferability Rules) expressly provide that undefined words therein should have the meanings assigned in the Act and the rules framed thereunder; no such cross-reference exists in the 1974 Rules permitting reliance on the 1977 or 1981 Rules for definitions.
- Literal and purposive interpretation of the phrase following "employee": The Court emphasized that the additional language in Rule 8(2)(b) — "who possesses the prescribed qualifications and experience and whose performance, in respect of the post he holds, has been found satisfactory" — cannot be treated as surplusage. The relevance of an employee's experience and performance "in respect of the post he holds" implies that the post held must be of a nature relevant to assessment for the teaching vacancy. The Court found that satisfactory performance and relevant experience in a non-teaching post would be irrelevant to assessing suitability for a teaching post.
- Conclusion from text and purpose: On the basis of the text, structure and purpose of the 1974 Rules, the Court concluded that the word "employee" in Rule 8(2)(b) does not include members of the non-teaching staff of an institution; it is to be understood as referring to employees who are in the teaching line in the institution.
The Court explicitly held that the earlier decision in Akshaya Kumar (supra) was not correctly decided and that the extended meaning urged by the petitioner (to include non-teaching staff) must be rejected.
Holding and Implications
Holding: The Court held that the word "employee" occurring in Rule 8(2)(b) of the 1974 Rules does not include members of the non-teaching staff of an institution. For the reasons given, the Court concluded that the case of Akshaya Kumar (supra) was not correctly decided.
Implications and consequences explicitly stated in the opinion:
- Cases already decided on the basis of the ratio in Akshaya Kumar (supra) should not be re-opened so as to avoid unsettling settled positions.
- Pending cases must be disposed of in the light of the observations made in this judgment.
- The writ petition before the Court was disposed of with the above observation; the Court awarded no costs.
The opinion confines its implications to the direct effects stated above (overruling the earlier ratio for future and pending matters, protecting finality of past decisions decided on that ratio, and disposing of the present petition). No broader or additional effects are asserted in the text beyond these explicit directions.
Judges: V.A. Mohta, C.J.; D.P. Mohapatra, J.; (one other judge recorded agreement). The writ petition was disposed of with the observations recorded above. No costs.
1. What is the true meaning of the word 'employee' occurring in Rule 8 (2)(b) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter referred to as "the 1974 Rules")?-this is the short question presented before us for determination. A Bench of this Court in Akshaya Kumar Das v. State of Orissa (OJC No. 3700 of 1987 disposed of on 12.11.1990) has taken the view that the word 'employee' in the aforesaid rules may out be confined to the teachers in case the promotion is contemplated to a post of teacher carrying higher scale of pay". The ratio of Akshaya Kumar (supra) was followed in OJC No. 6717 of 1991 disposed of on 27-3-1992.Both the aforesaid two cases come to be cited when the present case came up for hearing before a Bench. As the literal interpretation given to the word 'employee' in Akshaya Kumar (supra) was questioned, the Bench referred the matter to a larger Bench. This is how it has not come up for hearing before this Full Bench.
2. Facts :
The petitioner is now serving as a clerk in Janata High School, Godabhaga. At the time of his appointment on 20-3-1984, his educational qualification was B. A. While working in the school as such, he appreared at the By Ed. Examination and passed the said examination in June, 1989. In July, 1989, when a post of section teacher (Trained Intermediate section teacher) fell vacant in the school, the petitioner made a representation (Annexure-4) to the Director, Secondary Education, Orissa, staking his claim for being promoted against the said vacant post on the ground that he being an employee of the institution and having the requisite qualification is eligible to be promoted under Rule 8(2)(b) of the 1974 Rules. As his representation remained unattended to in the Directorate, the petitioner has filed this writ petition praying for a direction to the opposite parties to promote and appoint him as a teacher in the existing vacancy in the school. Counter affidavit has been filed on behalf of the opposite parties contending, intar alia, that under Rule 8 (2)(b) of the 1974 Rules, promotion to a post carrying higher scale of pay is only available to the employees who are in the teaching line and the petitioner, who is a cleric, being the non-teaching staff of the school, is not entitled to be considered for promotion.
3. The 1974 Rules-whose long title indicates so-have been made to regulate the recruitment and conditions of service of members of teaching and non-teaching staff of aided educational institutions. The rules are clustered in four chapters. In Chapter-I, as usual, definitions have been mentioned. Chapter-II deals with the procedure for selection of a candidate for appointment in the vacancy in teaching post, Chapters-III and IV deal with conditions of service of employees including disciplinary action. Chapter-II pertains exclusively for appointment to a teaching post whereas the rules contained in Chapters-III and IV are applicable to the members of both teaching and non-teaching staff. Rule 8, with which we are concerned, finds place in Chapter-ll. There is no dispute at the Bar that the said rule is an exception to Rule 5, which deals with the procedure for making necessary applications by the Managing Committee or the Governing Body, as the case may be, to the Selection Board for appointment in a vacancy in teaching post. As the word 'employee' has neither been defined in the 1974 Rules nor in the Orissa Education Act,. 1969 (in brief "the Act"). Shri Purohit learned counsel for the petitioner, submitted that the definition of the word 'employee' to mean both teaching and non-teaching members of the staff, as found in the Orissa Education (Leave of Teachers and Other Members of the Staff of Aided Educational Institutions) Rules, 1977 (in brief "the 1977 Rules") as well as in the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981 (in brief, "the 1981 Rules"), can be imported to interpret the provisions of Rule 8 (2)(b) of the 1974 Rules. According to the learned counsel, such procedure can be adopted in view of Rule 2 (2) of the 1974 Rules, which states that all words and expressions used in the 1974 Rules but not defined therein shall have the same meaning as are assigned to them in the Act. This argument loses sight of the fact that the rule-making authority, wherever intended in the relevant rules that the words and expressions not defined in those rules shall carry the same meaning as are assigned to them in the definitions contained in the Act or the rules framed thereunder, has specifically stated so. For example, in the Orissa Educational Institutions Employees' Common Cadre and Intertransferability Rules, 1979, it has been clearly provided that all words and expressions used in those rules but not defined therein shall have the same meaning as assigned to them in the Act and the rules framed thereunder. It means that in order to understand the meaning of the word 'employee' for the purpose of Intertransferability Rules, report can be had to the definition of 'employee', as found in the 1977 Rules and/or the 1981 Rules. But, in the 1974 Rules, words and expressions defined only in the Act can have the same meaning for the 1974 Rules. In absence of the definition of the word 'employee' in the Act or in the 1974 Rules, we have to decide its meaning by reading the entire set of the 1974 Rules, the purpose for which they have been made and by laying stress on every word employed therein.
4. It is an admitted position that the 1974 Rules do not deal with the manner of recruitment of members of non-teaching staff of an aided educational institution. As already indicated. Chapter-II deals exclusively with recruitment to fill up teaching posts. The entire scheme of the 1974 Rules would show that all appointments in the teaching staff have to be made through the Selection Board as provided in Rule 5. Rule 8 carves out exception in that on certain conthgencies procedure for filling up teaching posts through Selection Board can be avoided (or evaded?). Three such contingencies have been contemplated in Rule 8. the first being a case of filling up a teaching post by a person on deputation from the Government, the second, appointment on ad hoc basis for a period not exceeding three months, and the third, filling up a vacancy in a post carrying higher scale of pay by an 'employee' of the same institution The present is a case, according to the petitioner, which comes under the last category.
5. Rule 8.(2)(b) of the 1974 Rules reads as follows :
"8. Exception to Selection by the Board-
(b) the vacancy in a post, carrying higher scale of pay, is filled up with prior approval of Government in case of a College and the concerned Director in case of an institution other than a College, by an employee of the same institution who possesses the prescribed qualification end experience and whose performance, in respect of the post he holds, has been found satisfactory. Such appointment shall be treated as regular appointment from the date, the same is filled up on ad hoc basis by the Managing Committee or the Governing Body, as the case may be, in the event of its approval by the competent authority."
Counsel for the petitioner stressed that if an extended meaning to the word 'employee' is given, it would open up avenue and provide opportunity to members of non-teaching staff possessing the prescribed educational qualifications for being considered to a promotional post in the teaching line and as it would be beneficial to them, we should hold that 'employee' in Rule 8(2)(b) includes members of teaching staff as well as non-teaching staff. This was also the theme of argument of Shri J.K. Rath and Shri D.K. Mohapatra, who were also heard in the matter. Counsel for the State contended that the rule-making authority intended that only such employees who are in the teaching line in the institution can be considered for being appointed/promoted to a teaching post carrying higher scale of pay. In this connection, he brought to our notice certain provisions of the Selection Board (Conduct of Business and Discharge of Functions) Regulations, 1976, framed under Rule 4(7) of the 1974 Rules. According to him, under the aforesaid Regulations, certain standard has been fixed for assessment of selection and appointment of candidates in teaching posts and if members of non-teaching staff are allowed to fill up the vacancy in the posts carrying higher scale of pay by way of promotion, the purpose behind framing of the Regulations of 1976 would be frustrated. We have given our anxious and serious consideration to the submissions made on behalf of the parties. It is one of the cardinal rules of constructs that no word should be brushed aside as being redundant or surplusage in interpreting the provisions of a statute or a rule. The mention of "experience and whose performance in respect of the post he holds' after the expression "an employee of the same institution who possesses the prescribed qualifications." is not without any purpose or rationale. As the vacancy in a teaching post carrying higher scale of pay in the same institution has to be filled up by an employee relevancy of such employee's experience and performance in respect of the post he holds assumes importance. Such employee's experience and satisfactory performance in respect of a non-teaching post held by him is irrelevant to consider his suitability in respect of a teaching post. "Accordingly, in our considered opinion, the word 'employee' occurring in Rule 8(2)(b) of the 1974 Rules does not include a member Of non-teaching staff of the institution. For the aforesaid reasons, we hold that the case of Akshaya Kumar {supra) was not correctly decided.
6. In course of hearing, apprehension was aired at the Bar that if we interpret the word 'employee' to mean only members of teaching staff of an institution, the concerned authorities may re-open past cases where members of non-teaching staff have been promoted to teaching Posts. In view of such apprehension, we make it clear that cases already decided on the basis of the ratio of Akshaya Kumar (supra) should not be re-opened as it would unsettle settled position. So far as the pending cases are concerned, they are. however, required to be disposed of keeping in view the observations made in this judgment.
7. The writ petition is disposed of with the above observation. No costs.
V.A. Mohta, C.J.
8. I agree.
D.P. Mohapatra, J.
9. I agree.
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