Mobile View
Main Search Forums Advanced Search Disclaimer
Cites 1 docs
Chittaranjan Das vs The State Of Orissa on 18 September, 1973

User Queries
Orissa High Court
Krishna Chandra Karna vs State Of Orissa Represented By The ... on 2 December, 1994
Equivalent citations: 1995 I OLR 127
Author: R Patra
Bench: V Mohta, D Mohapatra, R Patra

JUDGMENT

R.K. Patra, J.

1. What is the true meaning of the word 'employee' occurring in Rule 8 (2)(b) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter referred to as "the 1974 Rules")?-this is the short question presented before us for determination. A Bench of this Court in Akshaya Kumar Das v. State of Orissa (OJC No. 3700 of 1987 disposed of on 12.11.1990) has taken the view that the word 'employee' in the aforesaid rules may out be confined to the teachers in case the promotion is contemplated to a post of teacher carrying higher scale of pay". The ratio of Akshaya Kumar (supra) was followed in OJC No. 6717 of 1991 disposed of on 27-3-1992.Both the aforesaid two cases come to be cited when the present case came up for hearing before a Bench. As the literal interpretation given to the word 'employee' in Akshaya Kumar (supra) was questioned, the Bench referred the matter to a larger Bench. This is how it has not come up for hearing before this Full Bench.

2. Facts :

The petitioner is now serving as a clerk in Janata High School, Godabhaga. At the time of his appointment on 20-3-1984, his educational qualification was B. A. While working in the school as such, he appreared at the By Ed. Examination and passed the said examination in June, 1989. In July, 1989, when a post of section teacher (Trained Intermediate section teacher) fell vacant in the school, the petitioner made a representation (Annexure-4) to the Director, Secondary Education, Orissa, staking his claim for being promoted against the said vacant post on the ground that he being an employee of the institution and having the requisite qualification is eligible to be promoted under Rule 8(2)(b) of the 1974 Rules. As his representation remained unattended to in the Directorate, the petitioner has filed this writ petition praying for a direction to the opposite parties to promote and appoint him as a teacher in the existing vacancy in the school. Counter affidavit has been filed on behalf of the opposite parties contending, intar alia, that under Rule 8 (2)(b) of the 1974 Rules, promotion to a post carrying higher scale of pay is only available to the employees who are in the teaching line and the petitioner, who is a cleric, being the non-teaching staff of the school, is not entitled to be considered for promotion.

3. The 1974 Rules-whose long title indicates so-have been made to regulate the recruitment and conditions of service of members of teaching and non-teaching staff of aided educational institutions. The rules are clustered in four chapters. In Chapter-I, as usual, definitions have been mentioned. Chapter-II deals with the procedure for selection of a candidate for appointment in the vacancy in teaching post, Chapters-III and IV deal with conditions of service of employees including disciplinary action. Chapter-II pertains exclusively for appointment to a teaching post whereas the rules contained in Chapters-III and IV are applicable to the members of both teaching and non-teaching staff. Rule 8, with which we are concerned, finds place in Chapter-ll. There is no dispute at the Bar that the said rule is an exception to Rule 5, which deals with the procedure for making necessary applications by the Managing Committee or the Governing Body, as the case may be, to the Selection Board for appointment in a vacancy in teaching post. As the word 'employee' has neither been defined in the 1974 Rules nor in the Orissa Education Act,. 1969 (in brief "the Act"). Shri Purohit learned counsel for the petitioner, submitted that the definition of the word 'employee' to mean both teaching and non-teaching members of the staff, as found in the Orissa Education (Leave of Teachers and Other Members of the Staff of Aided Educational Institutions) Rules, 1977 (in brief "the 1977 Rules") as well as in the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981 (in brief, "the 1981 Rules"), can be imported to interpret the provisions of Rule 8 (2)(b) of the 1974 Rules. According to the learned counsel, such procedure can be adopted in view of Rule 2 (2) of the 1974 Rules, which states that all words and expressions used in the 1974 Rules but not defined therein shall have the same meaning as are assigned to them in the Act. This argument loses sight of the fact that the rule-making authority, wherever intended in the relevant rules that the words and expressions not defined in those rules shall carry the same meaning as are assigned to them in the definitions contained in the Act or the rules framed thereunder, has specifically stated so. For example, in the Orissa Educational Institutions Employees' Common Cadre and Intertransferability Rules, 1979, it has been clearly provided that all words and expressions used in those rules but not defined therein shall have the same meaning as assigned to them in the Act and the rules framed thereunder. It means that in order to understand the meaning of the word 'employee' for the purpose of Intertransferability Rules, report can be had to the definition of 'employee', as found in the 1977 Rules and/or the 1981 Rules. But, in the 1974 Rules, words and expressions defined only in the Act can have the same meaning for the 1974 Rules. In absence of the definition of the word 'employee' in the Act or in the 1974 Rules, we have to decide its meaning by reading the entire set of the 1974 Rules, the purpose for which they have been made and by laying stress on every word employed therein.

4. It is an admitted position that the 1974 Rules do not deal with the manner of recruitment of members of non-teaching staff of an aided educational institution. As already indicated. Chapter-II deals exclusively with recruitment to fill up teaching posts. The entire scheme of the 1974 Rules would show that all appointments in the teaching staff have to be made through the Selection Board as provided in Rule 5. Rule 8 carves out exception in that on certain conthgencies procedure for filling up teaching posts through Selection Board can be avoided (or evaded?). Three such contingencies have been contemplated in Rule 8. the first being a case of filling up a teaching post by a person on deputation from the Government, the second, appointment on ad hoc basis for a period not exceeding three months, and the third, filling up a vacancy in a post carrying higher scale of pay by an 'employee' of the same institution The present is a case, according to the petitioner, which comes under the last category.

5. Rule 8.(2)(b) of the 1974 Rules reads as follows :

"8. Exception to Selection by the Board-

(1) ... ... ...

(2) ... ... ...

(a) ... ... ...

(b) the vacancy in a post, carrying higher scale of pay, is filled up with prior approval of Government in case of a College and the concerned Director in case of an institution other than a College, by an employee of the same institution who possesses the prescribed qualification end experience and whose performance, in respect of the post he holds, has been found satisfactory. Such appointment shall be treated as regular appointment from the date, the same is filled up on ad hoc basis by the Managing Committee or the Governing Body, as the case may be, in the event of its approval by the competent authority."

Counsel for the petitioner stressed that if an extended meaning to the word 'employee' is given, it would open up avenue and provide opportunity to members of non-teaching staff possessing the prescribed educational qualifications for being considered to a promotional post in the teaching line and as it would be beneficial to them, we should hold that 'employee' in Rule 8(2)(b) includes members of teaching staff as well as non-teaching staff. This was also the theme of argument of Shri J.K. Rath and Shri D.K. Mohapatra, who were also heard in the matter. Counsel for the State contended that the rule-making authority intended that only such employees who are in the teaching line in the institution can be considered for being appointed/promoted to a teaching post carrying higher scale of pay. In this connection, he brought to our notice certain provisions of the Selection Board (Conduct of Business and Discharge of Functions) Regulations, 1976, framed under Rule 4(7) of the 1974 Rules. According to him, under the aforesaid Regulations, certain standard has been fixed for assessment of selection and appointment of candidates in teaching posts and if members of non-teaching staff are allowed to fill up the vacancy in the posts carrying higher scale of pay by way of promotion, the purpose behind framing of the Regulations of 1976 would be frustrated. We have given our anxious and serious consideration to the submissions made on behalf of the parties. It is one of the cardinal rules of constructs that no word should be brushed aside as being redundant or surplusage in interpreting the provisions of a statute or a rule. The mention of "experience and whose performance in respect of the post he holds' after the expression "an employee of the same institution who possesses the prescribed qualifications." is not without any purpose or rationale. As the vacancy in a teaching post carrying higher scale of pay in the same institution has to be filled up by an employee relevancy of such employee's experience and performance in respect of the post he holds assumes importance. Such employee's experience and satisfactory performance in respect of a non-teaching post held by him is irrelevant to consider his suitability in respect of a teaching post. "Accordingly, in our considered opinion, the word 'employee' occurring in Rule 8(2)(b) of the 1974 Rules does not include a member Of non-teaching staff of the institution. For the aforesaid reasons, we hold that the case of Akshaya Kumar {supra) was not correctly decided.

6. In course of hearing, apprehension was aired at the Bar that if we interpret the word 'employee' to mean only members of teaching staff of an institution, the concerned authorities may re-open past cases where members of non-teaching staff have been promoted to teaching Posts. In view of such apprehension, we make it clear that cases already decided on the basis of the ratio of Akshaya Kumar (supra) should not be re-opened as it would unsettle settled position. So far as the pending cases are concerned, they are. however, required to be disposed of keeping in view the observations made in this judgment.

7. The writ petition is disposed of with the above observation. No costs.

V.A. Mohta, C.J.

8. I agree.

D.P. Mohapatra, J.

9. I agree.