Nilamani Mishra v. State Of Orissa & Others Opp. Parties.

B.L Hansaria, C.J:— The petitioner has felt aggrieved at the promotion of O.P No. 4 as Headmaster of Uttarayani Bidyapitha. The attack on the promotion is on two grounds i (1) The promotion on the basis of seniority alone is hit by 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 (shortly ‘the Rules’) and (2) O.P No. 4 in any case cannot be regarded as senior to the petitioner.

2. As the hub of the controversy is related to the inter se seniority between the petitioner and O.P No. 4, it would be in fitness of things to examine this facet of the case in the first instance. To do so, we have to take note of certain basic facts. The same are i The petitioner was appointed against a trained graduate post with effect from 1-8-1968 though by that time he had not become a trained graduate. He acquired the qualification of B. Ed. on 20-8-1968 and was thereafter given the trained graduate scale with effect from 21-8-1968. On the other hand, the petitioner had come to be appointed in the school against a trained graduate post on 19-7-1965 though he was then untrained. He acquired the B. Ed. degree on 7-7-1969 and was thereafter given the trained graduate scale with effect from that date.

3. On the above facts it is contended by Mr. Dora that the petitioner has to be regarded as senior to O.P No. 4 so far as the trained graduate post is concerned. The authorities, however, declared O.P No. 4 as senior to the petitioner placing reliance mainly on Government Order No. 42637-EYS. dated 4-12-1982 as at Annexure-1. Mr. Dora contends that the authorities in doing so misread the Government Order. To appreciate the submission, let us note the contents of the Government Order:—

“In continuation of this Department letter No. 701 dt. 6-1-1982 on the subject noted above, I am directed to say that after careful consideration it has been decided by Government that Untrained Graduate teachers appointed prior to the enforcement of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974, would be considered senior to the trained graduate teachers appointed subsequently. But such untrained graduate teachers will be considered for promotion if he has got minimum required qualification.”

(Emphasis supplied).

4. It is urged by the learned counsel that the word “Subsequently” as used at the end of the paragraph would indicate that this Government Order has no application to the case of those persons all of whom were appointed prior to the coming into force of the Rules as in the present case. This was made clear by the Education & Youth Services Department of the Government itself vide its order No. 29207-EYS. dt. 17-6-1987 as at Annexure-5 wherein it was stated that the word “subsequently” used in the Government Order of 1982 was misconceived and different interpretation of the word had been made. To clarify the position, it was stated in this Annexure that untrained graduate teachers appointed against the trained graduate posts before 1-4-1975 in aided High Schools would be considered senior to the trained graduate teachers appointed against trained graduate posts in such schools after 1-4-1975. As in the present case both the incumbents had been appointed before 1-4-1975 on which date the Rules had come into force, O.P No. 4 could not have been declared as senior on the basis of the Government Order of 1982 as had been done in the present case as would appear from Annexures 2 and 3.

5. In support of his submission, Mr. Dora has also referred to a Bench decision of this Court in Anand Sahu v. State of Orissa, 1990 O.J.D 60 (S & L) wherein on the facts of that case O.P No. 5 was held to be senior to the petitioner inasmuch as the former had started drawing trained graduate scale with effect from 1-11-1972 whereas the petitioner though appointed against a trained graduate post with effect from 14-5-1970 had been given trained graduate scale with effect from 1-9-1974. It was observed in this judgment that when the Rules regarding seniority are silent, an earlier appointee in the cadre must be declared senior to a later appointee. It was also pointed out that the appointment of teacher who is not a trained graduate against a trained graduate post does not make the appointment into the cadre. Being of this view, it was held that the period of appointment from 14-5-1970 to 1-9-1974 during which the petitioner had neither been a trained graduate nor had he been appointed as a trained graduate teacher in a trained graduate scale could be taken into account for determining his seniority vis-a-vis O.P No. 5 who had joined the trained graduate post on 1-11-1972.

6. Mr. Misra appearing for O.P No. 4 has not assailed, and rightly, the principle that in the absence of statutory rules the seniority has to be counted from the date of appointment to the cadre. The learned counsel, however, submits that O.P No. 4 must be deemed to have been appointed to the cadre on 19-7-1965 when he was appointed against the trained graduate post though he was an untrained graduate teacher by then. We are unable to accept this contention inasmuch as the petitioner being an untrained graduate teacher by 19-7-1965 could not have been appointed to the cadre of trained graduate teachers', and indeed he was not, as he was not given the trained graduate scale before 7-7-1969. We would, therefore, hold that the petitioner was an earlier appointee in the cadre of trained graduate post than O.P No. 4; and so the petitioner has to be regarded as senior to this opposite party. Mr. Misra has, however, made strenuous efforts to satisfy us that despite the fact that O.P No. 4 obtained his B. Ed. Degree later than that of the petitioner, the former has to be treated as senior to the latter inasmuch as he had joined the post of trained graduate teacher earlier in point of time. The learned counsel submits that the decision in Anand Sahu should not be approved because it had not taken in to consideration certain provisions of the Rules, so also what has beer stated in para. 17(2) of Chapter-IX of the Regulations of the Board of Secondary Education, Orissa. As to the provisions in the Rules which were not noted in Anand Sahu, attention has been invited in particular to Rules 16 and 27. We are afraid, none of these Rules can be called in aid by O.P No. 4 in assailing the view taken in the aforesaid decision. We have said so because Rule 16 of the Rules which deals with probation and confirmation applies to all appointments except those made under Rule 8-in the present case we are precisely concerned with the appointment made under Rule 8. As to Rule 27 of the Rules, it may be pointed out that though it is stated that all appointments made under the provisions of the Orissa Education Code shall be deemed to have been made under the provisions of the Rules, the same does not in any way assist the contesting opposite party inasmuch as no provision in the Rules has been brought to our notice which would protect the seniority of O.P No. 4 in a case of the present nature. As to para. 17(2) of the aforesaid Regulations, it may be stated that though this paragraph which deals with one of the conditions of recognition of institutions by the Board states that in case of non-availability of trained personnel, untrained persons may be appointed temporarily even to the posts of trained graduate, the same does not advance the case of O.P No. 4 inasmuch as the appointment visualised is temporary and secondly such an appointment cannot be treated for all purposes to be an appointment in the cadre of trained graduate teacher.

7. In view of what has been stated above, we would hold that the petitioner has to be treated as senior to O.P No. 4. This takes us to the second grievance of the petitioner which is related to the question of promotion of O.P No. 4 to the post of Headmaster on the basis of his seniority which violates what has been provided in Rule 8(2)(b) of the Rules. A reference to Annexures 2, 3 and 4 makes it clear that it was seniority on the basis of which O.P No. 4 was recommended for promotion to the post of Headmaster. Mr. Misra has, however, contended that other requirements of Rule 8(2)(b) namely, satisfactory performance must be held to have been impliedly fulfilled inasmuch as the Managing Committee would not have recommended the name of O.P No. 4 without it being satisfied about his satisfactory performance merely because the declaration of seniority in favour of O.P No. 4 by the Inspector of Schools vide Annexure-3. It is not necessary to express any final opinion on this aspect of the controversy inasmuch as the recommendation in favour of O.P No. 4 being apparently based on his being taken as senior to the petitioner which was not in consonance with the law according to us, the promotion has in any case no legs to stand.

8. The next question is relatable to the grant of appropriate relief to the petitioner. In this connection it has been urged by Mr. Misra that as the petitioner has not specifically prayed for setting aside the approval accorded to the promotion of O.P No. 4 by the Director of Secondary Education, the promotion in favour of this opposite party cannot be set aside by this Court in the present proceeding. Reference to the prayers as made by the petitioner shows that the first of the same concerns the seniority and the second to the question of recommendation of the name of the petitioner for promotion as the Headmaster and a direction to O.P No. 2 to approve the same. This shows that there is no specific prayer for declaring the promotion of O.P No. 4 as invalid in the eye of law. But then the petitioner having prayed for any other order or direction which would afford complete relief to him, we are of the opinion that merely because of absence of any specific prayer for setting aside the approval of the promotion of O.P No. 4 to the post of Headmaster, this relief may not be denied to the petitioner. In taking this view, we have borne in mind certain decisions of the Apex Court which have held that Courts have very wide discretion in the matter of framing their writs to suit the exigencies of particular cases and an application cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for. This was the view expressed in Charanjitlal v. Union of India, A.I.R 1951 S.C 41. In Satyanarain v. District Engineer, P.W.D, A.I.R 1962 S.C 1161, appropriate relief was granted due to changed circumstances and because of the prayer for grant of any other relief to the petitioner. In State of Haryana v. Haryana Co-op. Transport Ltd., (1977) 1 SCC 271 : A.I.R 1977 S.C 237, the mere circumstance of the petitioner not asking for the writ of quo warranto in so many words was not regarded as sufficient not to entertain that question, as facts necessary for challenging the appointment in question had been clearly stated in the petition. It was pointed out that the petitioner had invited the Court to issue such other suitable writ (apart from certiorari which was specifically asked for, but which was regarded as inappropriate) as the Court may deem fit and proper. In B.R Ramabhadriah v. Secretary, F. & A. Deptt., (1981) 3 SCC 528 : A.I.R 1981 S.C 1653, it was reiterated that the relief should be suitably moulded and it should not be denied on purely technical and narrow procedural grounds.

9. In view of what has been stated above, we are of the opinion that granting of appropriate relief may not be denied to the petitioner on the jejune ground of his not having specifically asked for the relief of setting aside of the approval of the promotion of O.P No. 4. May it be stated that the relief of giving direction to O.P No. 2 to approve the petitioner's promotion as Headmaster cannot be given without setting aside the approval accorded in favour of O.P No. 4. Accordingly, the approval in question is set aside with the declaration that the petitioner is senior to O.P No. 4. Let the question of promotion of the petitioner to the post of Headmaster be decided by the Managing Committee of the School in accordance with law. In the result, the petition is allowed. In the facts and circumstances of the case, we, however, make no order as to costs.

Smt. A.K Padhi, J.:— I agree.

10. Petition allowed.