of Orissa & Ors Vs. Rajendra Kumar Das
& Anr  Insc 421 (29 August 2003)
Raju & Arijit Pasayat.
Out of S.L.P. (C) No. 7032 of 2002) [With CA No.6846/2003 (Arising out of SLP
(C) No. 7994/2002, CA No.6848/2003 (Arising out of SLP (C) No. 9699/2002, CA
No.6847/2003 (Arising out of SLP (C) No. 20165/2002, CA No.6845/2003 (Arising
out of SLP (C) No. 19708/2002 ARIJIT PASAYAT,J.
all these appeals basic factual matrix is the same, except that the dates are different,
and the points of law involved belong to the same spectrum; they are disposed
of by this common judgment.
factual background can be adumbrated concisely as follows:
responded no.1 in each case filed a writ application before the Orissa High
Court claiming that he was appointed as "fourth peon" by the
management of the concerned institution, 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 Rules').
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 holding the same to be beyond the prescribed
yardstick, writ applications were filed for direction to the concerned authorities
to accord approval to the appointment.
High Court by the impugned judgments in separate writ applications 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 earlier circulars. Under 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 petitioners 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 the claim of the writ petitioners warranted acceptance.
support of the appeals 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 "Dafrty" 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".
contra, learned counsel for the concerned writ petitioners submitted that the
High Court has considered the circulars and come to the right conclusion that
the claim for appointment as the "fourth peon" is legally
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 7 class ...........
(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 7 class (i) Office Peon 1 1 1 (ii)Science Attendant 1 1
1 (iii)Night Watcher cum 1 1 1 Sweeper Where the roll strength of 10 Class High
School is 500 (five hundred) or more, one post of Daftary 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 Ist 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.
fairly accepted by learned counsel for the writ petitioners that the 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 peon".
is clear from the reading of the various judgments impugned in these appeals.
to be noted that 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 petitioners' 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 claims of the writ petitioners could have been considered by the
authorities, on being appropriately moved by the management. It is undisputed
that the writ petitioners were appointed by the managing committees', may be
under a misreading of the relevant government orders.
therefore, while allowing these appeals direct that the management of the
concerned 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 yardsticks in force at the time of appointments
were made. Even 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 that undisputedly there were several
decision of the Division Bench rendered at earlier points of time, taking a
view contrary to the one taken in the impugned judgments. Learned counsel for
the respondents (writ petitioners) fairly accepted that it is so. In fact, copy
of one such decision dated 3.12.1998 in O.J.C. 14004/97 was placed on record.
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.
appeals are allowed in the aforesaid terms, leaving the parties to bear their