of Orissa & Ors Vs. Loknath Ray & Ors
 Insc 175 (15
Pasayat & S.H. Kapadia
Out of S.L.P. (C) No. 19486 of 2003) ARIJIT PASAYAT,J.
factual background can be adumbrated concisely as follows:
respondent no.1 filed a writ application before the Orissa High Court claiming
that he was appointed as "fourth peon" by the Management of the
concerned institution i.e. Samanta Singhar High School in district of Jaipur, Orissa
(Respondent no.2) which is an "aided educational institution" as
defined under the Orissa Education Act, 1969 (in short the 'Act') and Orissa
Education (Recruitment and Conditions of Service of Teachers and Members of the
Staff of Aided Educational Institutions) Rules, 1974 (in short 'Recruitment
not in dispute that if an institution is an aided educational institution, same
is governed by the Act and rules framed thereunder.
Recruitment Rules are framed under the Act. As the functionaries of the State
did not approve the appointment of respondent no.1 holding the same to be
beyond the prescribed yardstick, writ application was filed for direction to
the concerned authorities to accord approval to the appointment.
High Court by the impugned judgment came to hold that the functionaries of the
State were not justified in refusing to accord approval. Stand of the State
Government was that circular dated 8.7.1981 contained yardstick for fixation of
standard staff for the Non-Government Secondary Schools in supersession of
the "category of staff" the number of peons which can be appointed
was clearly spelt out. Only if the roll strength of the institution exceeded a
particular number, one post of "Daftary" was admissible. According to
the State Government the post of "Daftary" is a promotional post and,
therefore, the concept of a "fourth peon" as sought to be canvassed
by the writ petitioner is without any legal foundation. The position was
further clarified by Circular dated 27.3.1992. The High Court on consideration
of the rival stands came to equate the "fourth peon" with "Daftary"
and held that the claim of the writ petitioner warranted acceptance.
support of the appeal, learned counsel for the State of Orissa submitted that the High Court
missed to consider several vital aspects.
there is no prescription of a "fourth peon" in the yardstick
prescribed. The post of "Daftary " is a promotional post and it
carries higher scale of pay. That being the position, the last entrant cannot
claim the post of the "Daftary".
was placed on decision of this Court in State of Orissa & Ors. v. Rajendra
Kumar Das & Anr. and connected matters (2003 (10) SCC 411) in support of
is no appearance on behalf of the respondents.
this juncture it is to be noted that at different points of time yardsticks
were formulated. Government of Orissa, Education & Y.S. Department, issued
Circular No. 28365-EYS dated 8.7.81 fixing standard staff for the
non-government secondary schools. So far as peons are concerned, the relevant
portions of the circular read as follows:
of staff 3 class 5class 7class ...........
(I) Office Peon 1 1 1 (ii) Office Attendant 1 1 1 (iii) Night watcher cum
sweeper 1 1 1 Notes ............
Where the roll strength of the school exceeds 100, one post of Daftary is
Subsequently by another circular No.155000-XVIIEP-50/91-E, dated 27th March,
1992 the position was further clarified as under:- "I am directed to say
that the question of fixation of revised yardstick for appointment of class IV
employees in Non-government Secondary Schools was under consideration of
Government for some time past. After careful consideration Government have been
pleased to decide that the yardstick for class IV employees of Non-Government
Secondary Schools shall be as follows:
of staff 3 class 5class 7class
Office Peon 1 1 1
Attendant 1 1 1
Watcher cum 1 1 1
Where the roll strength of 10 Class High School is 500 (five hundred) or more,
one post of Daftary is admissible.
the schools running shift system for shortage of accommodation one additional
post of peon is admissible.
yardstick will come into force with effect from the 1st January 1992 and Government order referred to above stands
modified to the extent indicated above." A comparison of the two circulars
shows that under 1981 Circular the requisite roll strength was 100, which was
changed to 500 subsequently in the 1992 Circular.
expression used in the two circulars is "Daftary" and not
"fourth peon". The High Court seems to have fallen in error by
proceeding on the basis as if the circulars referred to "fourth
is clear from the reading of the judgments impugned in the present appeal.
to be noted that the post of "Daftary" carries higher scale of pay
and is a promotional post for class IV employees. That being the position, the
High Court was not justified in directing approval of the writ petitioner's
services as "fourth peon". But one significant aspect cannot be lost
sight of. If a school was entitled to have a "Daftary", certainly the
appointment was to be made by promoting one of the three persons i.e. Office
Peon, Office Attendant and Night Watcher-cum- Sweeper, there being no other
class IV post in the institution. It is for the Managing Committee of the
institution to decide who is to be promoted and thereafter seek approval of the
way the claim of the writ petitioner could have been considered by the
authorities, on being appropriately moved by the management. It is undisputed
that the writ petitioner was appointed by the managing committee, may be under
a misreading of the relevant government order.
above position was indicated in Rajendra Kumar Das's (supra).
therefore, while allowing this appeal direct that the management of the
respondent-institution shall move the concerned authorities for approval to the
promotional appointment of a class IV employee, as "Daftary".
Simultaneously, it can also recommend for appointment to the class IV post, in
case approval is accorded to the recommendation for appointment of "Daftary"
on promotion. The decision on both motions shall be taken within three months
from the date of submission of the recommendation in accordance with law
keeping in view the operative yardstick in force at the time of appointments
if there has been refusal earlier, the matter shall be reconsidered in the
light of what has been stated above.
we part with this case we must indicate, as was done in Rajendra Kumar Das's
(supra), that undisputedly there were several decisions of the Division Benches
rendered at earlier point of time, taking a view contrary to the one taken in
the impugned judgment. In fact, one such order is dated 3.12.1998 in O.J.C. No.
14004/97 referred to Rajendra Kumar Das's (supra). The decisions do not appear
to have been brought to the notice of the learned Judges hearing the writ
petitions. This speaks volumes about the seriousness exhibited by learned
counsel appearing for the parties, particularly the State Government, before
the High Court.
appeal is allowed in the aforesaid terms, leaving the parties to bear their