Full Judgment Text
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PETITIONER:
SMT. SANJUKTA PATTANAIK
Vs.
RESPONDENT:
STATE OF ORISSA & ORS.
DATE OF JUDGMENT: 09/12/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This special leave petition arises from the judgment
and order of the Orissa High Court, made on September 18,
1996 in OJC No.2148/95.
The 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.
Since 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.
Pursuant 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.
It is 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
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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.
The special leave petition is accordingly dismissed.