Pattanaik Vs. State of Orissa & Ors  INSC 1567 (9 December 1996)
O R D
special leave petition arises from the judgment and order of the Orissa High
Court, made on September
18, 1996 in OJC
petitioner was appointed as a clerk on June 1, 1974 against a vacancy. On August 9, 1990, she seems to have been kept
in-charge of teaching post in the school. It is her claim that pursuant thereto
she was teaching as a teacher.
no action was taken by the authorities to have her appointed as a teacher, she
filed OJC No.671/91 on March
27, 1992 and pending
disposal interim direction was granted.
thereto, she was appointed with provisional approval by the Director on August 4, 1992. On a writ petition filed by the
5th respondent on April
15, 1993 alleging that
she was not entitled to the post, the matter was directed to be reconsidered.
The Director refused appeal by proceeding dated March 4, 1995 resulting in filing of the present writ petition. It is
contended that the High Court was not right in rejecting the claim of the
petitioner, on the ground that all those cases which were pending
consideration, required to be decided in accordance with Full Bench judgment of
the High Court in OJC No.5361/91, decided on December 2, 1994. Since the
petitioner's claim was already considered and approval was given by the
Director, it is not a pending case and she must, therefore, be appointed as a
teacher. We find no force in the contention.
seen that appointment should be in accordance with the Rules to a post as
defined under Section 2(b) of the Orissa Education (Recruitment and Conditions
of Service of Teachers and Members of the Staff of Aided Education
Institutions) Rules, 1974. Since the petitioner was working in a clerical post,
she is not entitled to be approved and the view taken by the Director is
correct. Admittedly, she was appointed as a clerk. While working as clerk, the
mere fact that she was kept in charge of the teaching post, does not confer any
right to appointment to a post, because she was not initially appointed to a
teaching post. The Full Bench, therefore, has rightly interpreted that the
initial appointment should be to a teaching post and a clerk, though directed
to discharge the duties as a teacher, cannot claim the post as a teacher.
Consequently, the earlier Division Bench judgment of the High Court was set
aside. Resultant operation was that all those cases which had become final were
directed not to be reopened and all those cases pending consideration either in
writ petition or before the authorities were required to be dealt with in
accordance with the Rules. Though the petitioner was provisionally given
approval pursuant to the direction issued by the High Court in the said writ
petition, that would be only subject to the appointment and since no
appointment could be made and was in fact not made, the order could not be said
to be in accordance with the Rules. The provisional approval granted by the
Director cannot be construed to be a ratification of the petitioner's
appointment as teacher. The view of this Court in Krishna Chandra v. State of Orissa
& Ors. [CA No.13755/96] decided on November 1, 1996 is consistent with the above view
and is of no help to the petitioner. Under these circumstance, we do not find
any illegality in the order passed by the High Court warranting interference.
special leave petition is accordingly dismissed.