Judgment:
P.C. Naik, J.
1. The prayer in this writ application is, 'for a direction to the opposite parties 2 and 3 allow her grant-in-aid scale of pay in the post of trained graduate teacher with effect from 1.3.1 987, for quashing the order of approval of appointments of opposite parties 6 and 7 vide Annexures-3 and for issuance of such other appropriate direction as may be necessary in the facts and circumstances of the case.'
2. According to the petitioner, she was initially appointed as an Assistant Teacher on or about 4.11.1982 and subsequently she was permitted to continue on regular basis with effect from 1.2.1983. It is her case that in January, 1990, a letter was received from opposite party No. 2 allowing the staff of the school to receive grant-in-aid scale of pay and though the names of some junior Assistant Teachers, in particular, opposite party No. 6, who was initially appointed on 7.8.1 984 and entered into the school sometime in the year 1 986, found place in the order of approval, her name was not included therein. It is further submitted that the petitioner possessed B.Sc, B.Ed, qualification and in spite of number of representations to that effect, she has not been approved and held entitled to receive grant-in-aid scale of pay in the trained graduate post though her juniors, namely, opposite parties 6 and 7, have been permitted to get the said benefit. It is her further case that she worked as an Assistant Teacher in the said school without any break and was entitled to regularisation under the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1989 and consequences flowing therefrom.
3. Opposing the petition, opposite parties 1, 2 and 3 have filed a counter affidavit wherein it is specifically averred that the institution in question has been taken over by the State Government with effect from 7.6.1994. It is their further case that the petitioner was appointed as an additional teacher in an additional section of Glass VIII, a post which was not sanctioned by the State Government and only after it is sanctioned, the question of paying any salary would arise. As regards opposite parties 6 and 7, it is stated that the appointment of the former (O.P. No;, 6) was against the post of a Classical Teacher and that of the latter (O.P. No. 7) was against the post of clerk which are different posts altogether, to which the petitioner cannot raise any grievance. Likewise, other approved staff, i.e. two Arts Trained Graduate Teachers, have also been approved against the sanctioned posts. It is also the State's case that the appointment of the petitioner was at the time when the institution was an unaided one and, as such, the appointment could be and was made by the Managing Committee for which no liability can be fastened with the State Government.
4. Opposite parties 4, 6 and 7 have also filed counter affidavit wherein it is stated that they have no objection if the petitioner's appointment is approved for which recommendation has already been made. It is, however, pleaded that the petitioner is not justified in challenging the approval of their appointments nor has the order of approval been obtained by manipulation of documents of records, as submitted: by the petitioner. It is their case that opposite party No. 6 was a trained graduate having experience as a Trained Graduate Teacher and as such, he was appointed by the Managing Committee as Headmaster by due process of selection. Denying the averments that opposite party No. 7 was a regular employee under the administrative control of opposite party No. 5, it is stated that he was a trained graduate of 1980 and was appointed on 20.7.1981 : as the first T.G. Arts Teacher, while the petitioner, was neither a trained hand nor was she appointed through a selection process against a sanctioned post. Her appointment was against an additional sanction post- not being a sanctioned post.
5. An additional affidavit was filed by opposite parties 6 and 7 to the effect that the school in question became a Government High School with effect from 7.6.1994 and that in view of the recommendation of the Managing Committee, after due inquiry, as per the proposal submitted by the Director, the State Government has approved the appointment of the petitioner as a trained graduate section teacher of the school with effect from 7.6.1994 and has adjusted her as an Assistant Teacher of the Rama Krishna Girls High School against an existing vacancy.
6. The question, therefore, is whether, in view of the fact that the institution where the petitioner was initially serving i.e. Orissa Government Press Colony High School, Cuttack, has been taken over by the Government and subsequently the petitioner has been approved as a trained graduate teacher and posted as such in a Government institution, she can prosecute this writ application before this Court, or the appropriate forum for her would be the Oriss, a Administrative Tribunal.
7. Before proceeding further, we may make reference to the resolution dated 16.12.1994 of the Government of Orissa in the School and Mass Education Department relating to taking over the management of all Non-Government Fully Aided High Schools by Government and service conditions of the employees. Vide the said resolution, the Government decided on principle to take over the Non-Government Aided High Schools in receipt of full salary cost and the institutions of which the Managing Committees had resolved to hand over management along with the approved teaching and non-teaching staff. This resolution further provided that the 'Government would not be liable to clear any liability whatsoever relating to the period prior to and for as on and after the 7th of June, 1994 incurred by the Managing Committee'. It has also been provided in the said resolution that the taken over employees would be treated as Government servants with effect from the 7th of June. 1994 only and. their service conditions would be as laid down in the resolution.
8. Thus, in terms of the resolution of the Government, opposite parties 6 and 7, who were the approved staff of the institution in question, were taken over by the Government and thereby they became Government servants. In case the prayer of the petitioner is allowed and the approval of opposite parties 6 and 7 set aside, it will amount to taking away from them the status of approved staff and thereby result in losing their status as Government servant because only approved staff were taken over by the Government. In other words, it will amount to declaring a Government servant not to be a Government servant, and it would also affect the service of the said opposite parties (O.Ps. 6 and 7) under the State Government, which, we feel, is a subject-matter within the jurisdiction of the Administrative Tribunal - the forum which can decide as to whether or not a person who holds a Government post has a right to hold it. Accordingly, the prayer of the petitioner for quashing the order of approval of opposite parties 6 and 7 cannot be entertained.
9. The question is, whether a direction can be issued to opposite parties 2 and 3 to allow to the petitioner grant-in-aid scale of pay with effect from 1.3.1987.
10. Admittedly, the school where the petitioner was teaching, has been taken over and the appointment of the petitioner has been approved with effect from 7.6.1994. Therefore, the petitioner has acquired the status of a Government servant or rather has become a Government servant with effect from that date. Her claim is for grant-in-aid scale of pay with effect from 1.3.1987 which would, in a manner of speaking, be a claim against the State Government for arrears of pay at a particular rate. Obviously, therefore, the claim is by a Government servant against the Government regarding fixation of her pay, may be for a prior period, for which the Government servant will have to approach the appropriate forum, i.e. the Orissa Administrative Tribunal. In this view of the matter, the contention advanced on behalf of the petitioner that as the claim relates to a period prior to her acquiring the status of a Government servant, the petitioner is entitled to ventilate her grievance before this Court, cannot be accepted. Had her claim been confined to a claim against the Managing Committee alone, the position might have been different, but it is not so. Thus, she has to ventilate her grievance before the forum meant for Government servants, as the management of the institution in question has been taken over by the State Government and she has become a Government servant.
11. Though a number of contentions were advanced by the learned counsel on the merits of the case, we are. refraining ourselves from expressing any opinion thereon for fear that it might prejudice the petitioner's claim before the Tribunal, in the event she decides to approach it. That apart, having held that the subject-matter of dispute is not within the jurisdiction of this Court, any expression on merits of the case would be unwarranted.
12. With the aforesaid observations, the writ application stands disposed of without any order as to costs.
P.K. Mohanty, J.
13. I agree.