Miss Pravabati Rout Vs. Kendrapara Municipality and ors. - Court Judgment

Excerpt:
service - regularization - articles 14 and 16 of constitution of india - petitioner appointed as assistant teacher for period of 44 days with consolidated pay by the executive officer - ad hoc appointment of petitioner extended from time to time - on relevant day executive officer issued letter extending her service until further orders with one day break on completion of each 44 days - since then, she is continuing in service, but her service has not yet been regularized - hence, present petition - held, in present case, eight teachers who were working in different schools have been regularized whereas petitioner, who was similarly working as teacher has not been regularized in service and ground given by executive officer for not regularizing petitioner's is that after regularizing services of aforesaid eight teachers, petitioner received order of state government wherein appointment to post of primary school teachers will be made by respective district inspectors of schools through selection committee constituted for purpose - consequently, petitioner, who was similarly situated as aforesaid eight teachers whose services have been regularized without their selection by selection committee, has suffered discrimination and her rights under articles 14 and 16 of constitution to equality of opportunity in matters of public employment have been violated - court directed regularization of petitioner's service in similar way as eight teachers whose services have been regularized - writ allowed - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the executive officer, by the aforesaid letter, has recommended for appointment of the petitioner against any vacant post. qualification and was eligible for appointment as a teacher when she was appointed in october, 1993, and she has also been recommended for such appointment against a vacant post by the executive officer in his letter dated 13.8.2004 in annexure-16 and the additional affidavit of the executive officer, kendrapara municipality filed on 1.9.2003 indicates that a total number of 12 vacancies are available under the control of the district inspector of schools in the municipal area under the sadar circle.pradip mohanty, j.1. in this writ petition, the petitioner seeks for a direction to the opposite parties to regularize her service as an assistant teacher in a primary school under kendrapara municipality, to pay her salary and other allowances equal to that of her counterparts in the permanent establishment and also to pay the arrear dues.2. the case of the petitioner in a nutshell is that she was appointed as an assistant teacher in kendrapara municipality for a period of 44 days with a consolidated pay of rs. 500/- per month on 8.10.1993 by the executive officer, kendrapara municipality. the ad hoc appointment of the petitioner was extended from time to time. on 25.8.1994, the executive officer issued a letter vide annexure-8 extending her service until further orders with one day break on completion of each 44 days. since then, she is continuing in service in madhyakhandi primary school, but her service has not yet been regularized.3. opposite parties 1 and 2 in their counter affidavit while denying the pleadings of the petitioners have specifically stated that the petitioner was given temporary appointment on consolidated salary pending regular selection. such appointment was being extended from time to time after completion of each 44 days. in the meantime, the government vide order dated 19.8.1995 directed that appointment and promotion of the primary school teachers would be made by the respective inspectors of schools through the selection committee. this letter was issued basing on the earlier government resolution dated 20.9.1989 whereby teachers of all the primary schools managed by urban local bodies were declared as government employees with effect from 5.9.1989. after receipt of the said order, the service of the petitioner was not extended as the municipality had no authority to do so and she is not in service since 1.11.1995. therefore, the question of arrear salary does not arise.4. a rejoinder affidavit has been filed by the petitioner stating therein that even after receipt of the government resolution dated 20.9.1989, kendrapara municipality has regularized the services of eight teachers of different primary schools controlled by the said municipality, who are similarly situated with the petitioner, vide order dated 31.7.1995 under annexure-10.5. by order dated 20.8.2003, 'this court directed the opposite parties to file an affidavit as to whether madyakhandi primary school, in which the petitioner was working, has been taken over by the state government or is being run by kendrapara municipality. it was also directed to indicate in the affidavit as to whether the persons named in annexure-10 are being paid their salary by the state government or by the kendrapara municipality. pursuant to the said order, though the government (opp. party no. 3) has not filed any affidavit, the municipality (opp. parties 1 and 2) has filed an additional affidavit mentioning therein that all the primary schools have already been taken over by the government. only two schools, namely, fraser girl's m.e. school and municipality high school, are continuing to be managed and controlled by the kendrapara municipality. it has also been stated that there is no vacancy available in the schools managed by the municipality. as such the municipality has expressed its inability to regularise the service of the petitioner. so far as the order under annexure-10 is concerned, it has been explained that under misconception services of some teachers were regularised by the said order. but after receipt of the order dated 19.8.1995, no further order has been passed realising the mistake committed earlier. it has further been stated that all the teachers whose services were regularised by the order under annexure-10, except one rajendra prasad rout, are getting their salary from the government. the said affidavit also reveals that there are twelve vacancies available in different schools within the municipal area, but since those schools have already been taken over by the government, the municipality cannot regularize the service of the petitioner against one of the said vacancies.6. an additional affidavit has been filed by the petitioner on 18.11.2004 enclosing some documents marked as annexures-14, 15 and 16. from annexure-16, the letter dated 13.8.2004 issued by the executive officer, kendrapara municipality to the d.i. of schools, kendrapara, it reveals that the petitioner having b.ed. qualification was appointed by the municipality on monthly consolidated pay basis since october, 1993 and posted in madhyakhandi u.p. school where she is still working. but her name has been wrongly left out. the executive officer, by the aforesaid letter, has recommended for appointment of the petitioner against any vacant post.7. in state of haryana and ors., etc., etc., v. piara singh and ors., etc., etc., air 1992 sc 2130, the supreme court held in para 10 of the judgment as reported in the air that the power to create and abolish a post in the government and the power to appoint a person to such post and prescribe his service conditions are that of the executive. but in such matters also the role of the court is to ensure that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of articles 14 and 16 of the constitution, that rule of law is observed and that the state does not exploit its employees by taking advantage of their helplessness and miseries because of their unemployment. it is for this reason that the court directs regularization of temporary or ad hoc appointment if such temporary or ad hoc appointment is continued for long spell. the court has also held that equal pay must be given for equal work, which is one of the directive principles of the constitution.8. in all manipur regular posts vacancies substitute teacher's association v. state of manipur, air 1991 sc 2088, the supreme court inter alia directed that all substituted/ad hoc teachers who have put in 5 years of service or more as on 1st of october, 1990 shall be regularized without any d.p.c. and this regularization should be subject to their possessing required qualification at the time of their initial appointment. in the said case, the supreme court also directed that the substituted/ad hoc teachers who have rendered less than 5 years of service as on 1st of october, 1990 shall be allowed to appear before the d.p.c. for selection and the d.p.c. shall be constituted exclusively for them and those who are selected by the d.p.c. shall be regularized immediately thereafter. these directions were given by the supreme court for regularization of substituted/ad hoc teachers who had completed 5 years of service or more as on 1st of october, 1990 without any d.p.c., and who had completed less than 5 years of service as on 1st of october, 1990 on their being selected by a d.p.c. exclusively constituted for them taking into consideration the facts and circumstances in that case.9. corning to the facts of the present case, as has been indicated above, the eight teachers who were working in different u.p. schools under the kendrapara municipality have been regularized by an order dated 31.7.1995 passed by the executive officer, kendrapara municipality whereas the petitioner, who was similarly working as a teacher in madhyakhandi primary school under the said municipality has not been regularized in service; and the ground given by the executive officer, kendrapara municipality for not regularizing the service of the petitioner is that after regularizing the services of the aforesaid eight teachers on 31.7.1995, she received the order dated 19.8.1995 of the government of orissa, department of school and mass education, stating inter alia that appointment to the post of primary school teachers will be made by the respective district inspectors of schools through the selection committee constituted for the purpose. consequently, the petitioner, who was similarly situated as the aforesaid eight teachers whose services have been regularized by the executive officer without their selection by the selection committee, has suffered discrimination and her rights under articles 14 and 16 of the constitution to equality of opportunity in the matters of public employment have been violated. the court, therefore, will have to direct regularization of the service of the petitioner in the similar way as the eight teachers whose services have been regularized by the executive officer by order dated 31.7.1995, more particularly when she had the b.ed. qualification and was eligible for appointment as a teacher when she was appointed in october, 1993, and she has also been recommended for such appointment against a vacant post by the executive officer in his letter dated 13.8.2004 in annexure-16 and the additional affidavit of the executive officer, kendrapara municipality filed on 1.9.2003 indicates that a total number of 12 vacancies are available under the control of the district inspector of schools in the municipal area under the sadar circle.10. for the aforesaid reasons, we direct that the service of the petitioner will be regularized forthwith by opp. parties 1, 2 and 3 in any of the aforesaid 12 vacancies of assistant teacher available in the schools located within the kendrapara municipal area under the control of the district inspector of schools, kendrapara with effect from the date on which the services of the aforesaid eight teachers were regularized by order dated 31.7.1995 of the executive officer, kendrapara municipality in annexure-10 to the writ petition and she will be paid her arrear salary with effect from the date of such regularization within a period of six months from today. she will also be paid her current salary within a month in the same manner as the eight teachers whose services have been regularized by order dated 31.7.1995.11. with the aforesaid directions, the writ petition is allowed. considering, however, the facts and circumstances of the case, there shall be no order as to costs.a. k. patnaik, j.12. i agree.