Judgment:
A. Pasayat, J.
1. Petitioner prays for a writ of certiorari quashing resolution of the managing committee of Nuabazar High School, dated 9.2.1990 (Annexure-2) relating to promotion/fitment of opp. party Nos. 5 and 6 against the trained graduate posts, approval thereof by order dated 14.8.1991 (Annexure-3) of the State Government. and for a writ of mandamus commanding the opposite parties to treat the petitioner as a regular teacher with effect from 28-8-1982, to grant salaries for the break periods, and summer vacations, and to declare him to be senior to opp. party Nos. 5 and 6.
2. Facts situation as indicated by the petitioner are as follows :
On 23-8-1982, the petitioner was appointed as an Assistant Teacher of Nuabazar High School against a trained matric post on ad hoe basis for 89 days. His appointment was extended from time to time on 89 days basis with one day break, as no Selection Board candidate was available to be adjusted in the school. On 22-3-1983, opp. party No. 6 was appointed as an Assistant Teacher against a trained matric post relating to Class VI-B by the managing committee of the institution. On 7-2-1985 the petitioner acquired B. Ed. qualification. Petitioner continued to serve the institution till 25-3-1988 on ad hoc basis. Since the ad hoc appointments were approved by the Inspector of Schools, petitioner received his monthly salary for the periods directly from the Inspector of Schools. On 15-11-1988, opp. party No. 5 was appointed as an Assistant Teacher against a trained matric post relating to Class VI-C. by the managing committee. By operation of the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1989 (in short, the 'Validation Act.) petitioner ad hoc appointment got validated and the petitioner was to be taken as a regular employee with effect from 28-8-1982. On 9-2-1990, the managing committee adopted a resolution promoting opp. party Nos. 5 and 6 to additional trained graduate posts against Classes VIII and IX respectively, whereas petitioner was given a trained intermediate post on the ground that he was junior to opp. party Nos. 5 and 6. On 14-8-1991. the State Government accorded approval to the arrangement made by the managing committee and communicated the approval to the Director for implemention of the 6ame. The petitioner being aggrieved by the said order, made a representation to the Director of Secondary Education ventilating his grievances. Since it yielded no fruitful result, the writ application was filed.
3. Petitioner's case is that his appointment ought to have been treated as regular for all purposes from 23-8-1982, and the opp. party Nos. 5 and 6 having been appointed on 15-11-1988 and 22-3-1983 respectively, he was to be treated at senior to each one of them. The view of the managing committee, it is submitted, that the petitioner was junior to both of them is not legally tenable. It is further Submitted that the effect of the Validation Act is to fill in the breaks and to ensure continuity. Opp. party Nos. 5 and 8 apart from objecting to the prayer of the petitioner, have taken a plea that the petitioner cannot be treated to be regularised with effect from 23-8-1982, as his initial appointment was not in accordance with law. Further it is submitted that those whose services have been regularised in terms of the Validation Act cannot put the regular appointees to disadvantageous position.
4. So far as effect of regularisation is concerned, there can be no manner of doubt that the petitioner is entitled to salary for the break periods and the vacations. The apex Court in Rabinarayan Mohapatra v. State of Orissa : AIR 1991 SC 1286, has held that a person who fulfils the criteria fixed for regularisation is entitled to the salary for the break periods and the vacations also. Though opp. party Nos. 5 and 6 have contended that the petitioner shall not be entitled to the said benefit with effect from 23-8-1982, we find no substance in the said plea in view of counter-affidavit filed by the Inspector of Schools on behalf of opp. party Nos. 1 to 3 fairly accepting that the petitioner joined the institution on 23-8-1982. This is clear from paragraphs 5 and 6 of the counter affidavit. Additionally, various other documents, for example, the letter of the Secretary addressed to the Inspector of Schools (Annexure-F/4) clearly shows that petitioner was in service from 23-8-1282 with periodic gaps as reflected in the attendance register and the acquittance roll.
5. Coming to the question whether regularisation would in effect make the petitioner senior to opp, party Nos. 5 and 6, who admittedly joined the institution after the petitioner, it is to be indicated that the Validation Act itself makes it clear that by validation of appointment of the teachers under the said Act, the teachers appointed on the recommendation of the Selection Board or the teachers whose appointments were validated prior to the commencement of the Act shall not be put in disadvantageous position.
6. According to Mr. Swain, learned counsel appearing for petitioner, disadvantage sought to be avoided is only relatable to persons appointed on the same date. Elaborating it is submitted that any person who may have been appointed between 1-12-1976 and . 31-12-1984, but after 20-8-1982 cannot be put at par with him.
7. 'Disadvantageous' as contemplated in the provision cannot be dilated to the circumstances indicated by the learned counsel for petitioner. Placing somebody above another in the seniority list it an advantage. The. Validation Act makes it clear that those who were appointed between a particular period (1-12-1976 to 31-12-1984) by the Selection Board or whose appointments were validated prior to commencement of the Act are not to be put in disadvantageous position in any manner whatsoever. The relevant provision so far as relevant, reads as follows :
'3. Validation of certain appointments-Notwithstanding anything contained in the Education Act or in the Rules or Regulations framed thereunder;
(a) Graduate teachers, 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 basis on or after the first December, 1976, but not later than the 31st December, 1984 ;
(b) Lecturers of aided colleges appointed by the managing authorities of such colleges on ad hoc basis on or after the 1st December, 1976 but not later than the 31st December, 1984; and
(c) Lecturers appointed validly and lawfully in aided colleges till the 1st March, 1981 after termination of their ad hoc appointments in Government colleges, who have rendered 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 were continuing as such teachers or whose services have been terminated after the 31st December, 1985, save for misconduct or, as the case may be, lecturers validly and lawfully, except those whose appointments have been validated by the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1981 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 the procedure laid down in the Education Act, and the Rules and Regulations framed thereunder : (Orissa Act 27 of 1981) :
Provided that the validation of appointments as aforesaid shall not put persons
(i) appointed as teachers or lecturers, as the case may be, during the period between the 1st December, 1976 and the 31st December. 1984 on the recommendation of the Selection Board ; or
(ii) whose appointments as teachers or lecturers, as the case may be, were validated prior to the commencement of this Act, In a disadvantageous position in any manner whatsoever.'
The regularisation intended in terms of the Validation Act is subject to certain conditions and Section 3 deals with them. The language in the statute is clear and unambiguous. Therefore, opp. party Nos. 5 and 6 have been rightly shown to be senior to the petitioner. Letter No. IX SME(P) 67/93-21089/SME. dated 28-6-1994 of the Government of Orissa in Department of Schools and Mass Education has been brought to our notice. It stipulates that the teachers whose appointments have been Validated under the Validation Act shall not be placed above those teachers appointed on the recommendation of the Selection or Board or the teachers whose appointments were validated prior to the commencement of the Validation Act shall not be put in a disadvantageous position, and such teachers are to be placed above those whose services have been validated under the Validation Act, while fixing inter se seniority. We find no substance in the plea of the petitioner that he is senior to opp. party Nos 5 and 6.
8. In the result, the petitioner's prayer for regularisation of services in relation to the break periods and vacations is accepted. Let the authorities work out the entitlements of the petitioner keeping in view the guidelines indicated by the apex Court in Rabinarayan Mohapatra's case (supra) and the amount if any due to the petitioner be paid to him within four months from the date of receipt of our order.
The writ application is allowed to the extent indicated above.
P.C. Naik, J.
9. I agree.