Judgment:
G.B. Patnaik, J.
1. The order of the Deputy Director non-Government Schools, Bhubaneswar, dated 18-9-1989, annexed as Annexure-4 allowing opposite party No. 5 to draw the trained graduate scale against the fourth trained graduate post of teacher and the consequential order of the Inspector of Schools Bolangir Circle dated 3-11-1990 in favour of opp. party No. 5 allowing him to draw the trained graduate scale of pay with effect from 23.8-1980 the date of his passing B. Ed. Examination, annexed as Annexure-5 are being assailed in this writ application by the petitioner, inter alia, on the ground that the petitioner being senior to opp. party No. 5 was entitled to be adjusted against fourth trained graduate post.
2. The petitioner was appointed as an Assistant Teacher of Satyabadi Bidyapitha. an aided educational institution against a trained matric post on 1-7-1970. At that point of time he had passed the intermediate examination. When the petitioner was appointed as a teacher the Recruitment Rules, namely the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 had not come into force and the said Recruitment Rules came into force with effect from 1-4 1975. The petitioner had gone on C. T. training in the year 1985 and against the vacant post, thus caused opp. party No. 5 was apdointed ad hoc basic in the leave vacancy on 18-8 1975. The said opp. party No. 5 was appointed against a trained intermediate post on regular basis on 23-8-1975. The Government of Orissa created fourth post of trained graduate teacher in all the aided educational institutions with effect from 28-1-1975 and it was communicated to the Headmasters of all schools. So far as Satyabadi Bidyapjtha is concerned, the Inspector of Schools by letter dated 9-1-1976 called upon the Headmaster to submit proposal and recommendation, if any along with the resolution of the Managing Committee in respect of senior-most Assistant Teacher working against the 1. A.C. T. and Matri-C T posts for further action. It is to be noticed that the appointment of opp. party No. 5 against 1. A. C. T. Post on 23-8-1975 though had been made after the Recruitment Rules had come into fore but not following the procedure provided for such recruitment. Opp. party No 5 became a graduate in the year 1977 while the petitioner became a graduate in the year 1979 and both of them acquired B. Ed. degree on the same date that is 23-8-1980. As fourth trained graduate post was still lying vacant in the institution, the Managing Committee requested the inspector of Schools to decide as to who would be adjusted against fourth trained graduate post. The Deputy Director. non-Govern-merit School by his order dated 19-9-1989 having decided to fill up the post of fourth trained graduate by promoting opp. party no. 5 as per Annexure-4 and the Inspector of Schools having passed the consequential order on 3-11-1990 as per Annexure-5, the petitioner has approached this Court. Prior to filing of the writ application the petitioner had filed representations to the Managing Committee as well as to the Inspectorate but the Managing Committee replied that the post having already been filled up and there being no vacancy, question of considering the petitioner's case did not arise. So far as the representation of the petitioner to the Inspector of Schools is concerned no repty had been received by him and hence the present writ application.
3. Opp. parties 1 to 3 and opp. party No. 5 have filed two different counter affidavits but their stand is essentially the same. namely since opp. party No. 5 was continuing against a post which was later on upgraded to that of a fourth trained graduate post, it is opp. party No. who is entitled to be adjusted against the said fourth trained graduate post and the petitioner cannot claim any the same.
4. Mr. Swain appearing for the petitioner raises to following contentions in assailing the order of adjustment of opp. party No. 5 against the trained graduate post :
(1) The petitioner having been continued against a trained matric post with effect from 1-7-1970 and opp. party No. 5 having joined the institution five years later on 23-8-1975 and both of them having acquired B. Ed. degree on the same date on 23-8-1980, the petitioner must be held to be senior to opp. party No. 5 and, therefore, has a right to be adjusted against the trained graduate post;
(2) Appointment of opp. party No. 5 on 23-8-19 5 after the statutory Recruitment Rules had come into force not having been made in accordance with the Rules is an invalid appointment and, therefore, . the said appointment does not confer any right on opp. party No. 5;
(3) The power to fill up a trained graduate post in an aided educational institution vests with the Managing Committee. The Managing Committee having not exercised that power and no resolution of the Managing Committee having been passed, the order of adjustment in favour of opp. party No. 5 made by the Inspector of Schools pursuant to the decision of the Deputy Director is illegal and without jurisdiction and the same cannot be sustained ;
(4) In any view of the matter, non-consideration of the petitioner's case white deciding the question of filling up the post of fourth trained graduate teacher contravenes Art. 16 of the Constitution and the impugned order, therefore, is liable to be struck down.
5. The learned Addl. Govt. Advocate as well as the learned Counsel for opp, party No. 5 vehemently argued that opp. party No. 5 having been appointed substantively against an I. A. C. T post with effect from 23-8-1975 and the very post having been upgraded to that of fourth trained graduate post the right of opp. party No. 5 to get the trained graduate scale of pay accrues the moment he acquires the B Ed. degree and, therefore, the petitioner cannot have any right to be appointed or adjusted against the trained graduate post.
6. In view of the rival stands of the parties, the following questions require for our determination :
(i) As between the petitioner and opp party No. 5 who can be held to be senior
(ii) Who has the power to appoint against a trained graduate post
(iii) Is the appointment of opp. party No. 5 vitiated for non-consideration of the petitioner's case ?
7. So far as the first question is concerned, on the admitted facts that the petitioner was appointed against a trained matric post in the year 1910 whereas opp. party No. 5 was appointed five years later against an I. A. C. T. post and both of them acquired B. Ed. degree on the same date, the petitioner must be held senior to opp. party No. 5 U would be appropriate to notice at this stage that the petitioner's substantive appointment against a trained matric post was at a point of time when the statutory Rules were not in force and he had been duly appointed by the competent authority, namely, the Managing Committee of the School. But in August, 1975 when opp. party No. 5 was appointed against an I. A.C. T. post, the statutory Recruitment Rules had come into force and yet his appointment had not been made or processed under the statutory Rules. It is the settled principle that in the absence of any Rule for determining inter se seniority the length of service in a particular cadre has to be taken into account. As between the petitioner and opp. party No. 5, the petitioner having been duly appointed by the competent authority and having continued since 1-7-1970 and opp. party No.5 having been appointed after the statutory Rules coming into force but without following the procedure under the said statutory Rules and both of them having acquired the B.Ed, degree on the same date the petitioner must be held to be senior to opp. party No. 6. The stand taken by the opposite parties that since opp. party No. 5 had been oppointed against a post and the very post was upgraded to that of a trained graduate and opp. party No. 5 was entitled to get the trained graduate scale is wholly misconceived. As has been held by this Court in the case of Ananda Sahu v. State of Orissa and Ors., 32(1990) OJD 50 (S & L) appointment of a teacher who was' not a trained graduate against a trained graduate post doss not make the appointment into the cadre. In that case also the teacher who had been appointed against a trained graduate post on 14-5-1971 and continued as such till 1-9-1984 when he became a trained graduate was not taken into account for determining his seniority. In this view of the matter the petitioner must be held to be senior to opp.partyNo.5. The Government's Circular providing inter se seniority between the untrained graduate teachers appointed prior to the statutory Rules coming into force and the trained graduate teacher appointed subsequent to the Rules coming into force and stating that the untrained graduate teachers will be senior to the trained graduate-teachers also supports the petitioner's case and in accordance with the said circular the petitioner must be held to be senior to opp. party No 5. We may in this connection observe that a fortuitous appointment against a post does not confer a right on such appointee when that post itself is upgraded and on the date that upgraded post falls vacant, cases of eligible candidates are required to be considered by the appointing authority.
8. Coming to the second question, admittedly the Managing Committee is the appointing authority. Under the statutory Rules it is the Managing Committee who has the right to appoint when candidates are allotted to it under Sub-rule (2) of Rule 5 of the Recruitment Rules. Under Rule 8 of the Recruitment Rules it is again the Managing Committee who can make appointment under certain contingencies without going through the procedure contained in Rule 5. Therefore, power of appointment of a teacher of an aided educational institution vests with the Managing Committee. Admittedly, the Managing Committee has not made the appointment of opp. party No. 5 and on the other hand, it Is. the Directorate and the Inspector of Schools who have made the appointment. Therefore, the authority vested with power has not exercised the power and consequently the appointment as well as granting trained graduate scale to opp. party No. 5 under Annexures-4 and 5 gets vitiated. The said orders, therefore, are liable to be struck down.
9. Coming to the third question, it is established that not only the appointing authority has not exercised the power of appointment as stated earlier but also even the Director as well as the Inspector of Schools has not considered the case of the petitioner while adjusting opp. party No. 5 against the trained graduate post. Obviously on an erroneous tooting that since the post which was being occupied by opp. party No. 5 upgraded to a trained graduate post it is he by virtue of his continuance against the upgraded post is entitled to the same. Admittedly, the petitioner's casa has not been considered though in the return the opposite parties took the stand that as opp. party No. 5 was senior to the petitioner question of considering the petitioner's case did not arise. in view of our conclusion that the petitioner is senior to opp. party No. S the aforesaid stand taken by opposite parties in their counter affidavit cannot be sustained. That apart every employee has the right of consideration when any promotion is made or when the question of filling up of a post in the higher scale of pay is decided. Art. 16(1) of the Constitution guarantees an equal opportunity to all citizens and a right to be considered on merits for the post which is going to be filled up. The consideration must be made 1or all eligible candidates on the date the post fell vacant or on the date the appointee acquires qualification for being considered. In order to be appointed against a trained graduate post, the person concerned must have the qualification of B. A. B. Ed. The petitioner as well as opp. party No. 6 became trained graduate on the same date on 23-8-1980 and on that date-the post of fourth trained graduate was lying vacant not being filled up. Therefore, the petitioner had a right to be considered for the post in question and non-consideration of the petitioner's case infringes the constitutional guarantee under Arts. 14 and 16 of the Constitution. The impugned order in favour of opp. party No. 5 on this score also is liable to be quashed.
10. In view of our conclusions, as aforesaid, we quash the orders under Annexures 4 and 5 and direct the Managing Committee.opp. party No. 4 to consider the question of filling up fourth trained draduate post bearing in mind the conclusions of ours that the petitioner is senior to opp. party No. 5. This consideration shall be made within a period of one month from the date of receipt of our order. The writ application is allowed. No costs.
R.K. Patra, J.
11. I agree.