An untrained graduate teacher can be appointed as an assistant teacher in a non-government aided High School, but he is not eligible to receive trained (graduate) scale of pay. The State Government's approval of the post validates the appointment of an untrained graduate teacher. The Inspector of Schools cannot disapprove the appointment of an untrained graduate teacher who was appointed prior to the issuance of Government instructions prohibiting such appointments.

JUDGMENT :

R.K. Patra, J. - In this petition under Articles 226 and 227 of the Constitution of India, the petitioner who is an assistant teacher, prays for a direction to the opp. parties to release his salary, arrears as well as current, in the pay scale of untrained graduate teacher with effect from the date of his appointment. He has also sought for an appropriate writ for quashing the office order No. 1657 dated 8.2.1996 (Annexure-5) by which the Inspector of Schools has disapproved his appointment against the additional section on the ground that he does not possess the prescribed qualification to hold the post of trained graduate teacher.

2. For appreciation of the controversy raised in the case, briefly facts may be noted.

The petitioner came to be appointed as an assistant teacher on 3.11.1989 against an additional section of Class-X in Pipli High School which is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, 1969. He joined the service on 6.11.1939. At that time, he was a B.Sc. but was not trained. A circular has been issued by the State Government fixing the standard staff for a non-government High School according to which a trained graduate teacher is admissible to each of the additional section in Classes VIII to X. The circular further provides that for every additional section of Classes VIII to X taken together, one additional trained graduate teacher is admissible. Following the increase of roll strength in the school, the Managing Committee created an additional section in Class-X against which the petitioner was appointed. According to the petitioner; there is no bar for appointment and continuance of an untrained graduate teacher against a trained graduate post but so long as he is not trained, he would only be entitled to draw untrained graduate teacher scale of pay. The State Government in the department of School and Mass Education letter No. 17696 dated 1.6.1995 (Annexure-4) accorded its approval of the posts of additional section teachers in non-government aided High Schools in the State with effect from 7.6.1994 on the basis of the yardstick and roll strength as per the list enclosed to the said letter. At serial No. 10 of the list, the name of the petitioner finds place against Pipli High School, Pipli. The allegation of the petitioner is that although the State Government approved the post against which the petitioner was appointed, the Inspector of Schools has not released his salary in the scale of pay of untrained graduate teacher. He therefore prays for a direction to. release his salary, arrears as well as current, in the untrained graduate scale of pay with effect from the date of his appointment.

During the pendency of this petition, the Inspector of Schools issued office order No.1657 dated 8.2.1996 (Annexure-5) disapproving the appointment of the petitioner against the additional section on the ground that he has not acquired the prescribed qualification to hold the trained graduate teacher post. Consequently, the petitioner has made a prayer for amendment of the petition (vide Misc. Case No.9529 of 1996) to quash the said order. His prayer to amend the prayer was allowed by order dated 6.1.1997.

3. Counter affidavit has been filed on behalf of the opp. parties 1 to 3. The main thrust of objection taken in the counter affidavit is that the additional section was not created by the Government at the time of the petitioner's appointment and as he does not possess the requisite qualification, the Inspector of Schools rightly disapproved his appointment in view of the Government letter No. 1074/EYS dated 5.1.1991 (Annexure-C/3) and the Director's letter No.22345 dated 17.7.1995 (Annexure-B/3).

4. The learned counsel raised the following contentions in support of the petitioner's case :

(i) There is no bar for appointment of an untrained (graduate) teacher against a trained graduate post in a non-government aided High School. By such appointment, he wil