Judgement

JUDGMENT :- All these appeals arise from a batch of Writ Petitions which were filed before the Orissa High Court by ad hoc Headmasters/Headmistresses who were appointed for a period of six months at a time by the Managing Committee of the concerned schools and were continued in that fashion for a number of years with the approval of the Inspector of Schools. All these appointments expressly contained a term to the effect that they would continue till regularly selected candidates were appointed to the posts in question. The respondents prayed for regularisation and they further prayed for a declaration that the new mode of recruitment set out in executive instructions dated 1-9-90 and 5-6-91 should be quashed and that no new appointments should be made under these executive instructions. The High Court in its impugned judgment has held that until rules are framed under Section 10 (3) of the Orissa Education Act, 1969 the District Selection Board cannot function under executive instructions. It has further directed that the appellants should be continued as Headmasters/Headmistresses until regular appointees are appointed to the said posts.

2. The State of Orissa has filed the present appeal.

3. Section 10 of the Orissa Education Act, 1969, prior to its amendment by Act 15 of 1989 provided as follows :

"Conditions of service of the staff of aided institutions. (1) The qualification required for appointment as teachers and other members of the staff of aided educational institutions and their conditions of service relating to salary, leave, pension, provident fund, age of retirement, disciplinary action and other matters shall be as may be prescribed :

"Provided that the terms and conditions of 3371 service prescribed in respect of teachers and other members of the staff who, on the condition of a common cadre, have been absorbed in such cadre, shall not in any way be less favourable than the terms and conditions which were applicable to them immediately prior to such condition."

(2) The State Government may constitute a Selection Board consisting of such members as may be prescribed.

(3) The Selection Board shall prepare in the prescribed manners a list of candidates for appointment as teachers in aided educational institutions and all such appointments shall be made in accordance with the rules made in that behalf from out of the candidates included in the list so prepared.

Section 10 (2) of the Orissa Education Act, after the Amendment made by Act 15 of 1989, was replaced by the following :

"Section 10 (2) : The State Government shall by notification constitute a Selection Board for the State to select teachers for recognised Private Higher Secondary Institutions and College and one such Board for each district to select teachers for recognised Private High School and Upper Primary Schools. Such Boards may consist of such members as may be specified by such notifications."

4. Section 10 (3) provided that appointments shall be made in accordance with rules made in that behalf from out of the candidates in the list prepared by the Selection Board. The rule-making power is contained in Section 27 which enables the State Government, after previous publication, to make rules for carrying out all or any of the purposes of the Act. In exercise of this power, the State Government has published the Orissa Education (Recruitment and Conditions of Service of Teacher and Members of the Staff of Aided Educational Institution) Rules, 1974 (hereinafter referred to as the Rules of 1974). These Rules which have been in existence long prior to the amendment of Section 10 (2) provide, inter alia, for constitution of the Selection Board, procedure for application to the Board and appointment of staff in aided institutions. The Rules also prescribe drawal of pay and allowances, conduct of employees, their probation and confirmation, maintenance of confidential character roll in the service book, termination of service, superannuation and provisio