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1992 Supreme(Ori) 317
IN THE HIGH COURT OF ORISSA
B.L. Hansaria, B.N. Dash, JJ.
MANAGING COMMITTEE, MAJHIPADA M.E. SCHOOL - APPELLANT
Versus
STATE OF ORISSA AND OTHERS - RESPONDENT
O.J.C. No. 3244 of 1988
Decided On : 21-02-1992
Deepak Misra, R.N. Naik and A. Deo and J.K. Rath, Amicus curiae, for the Appellant; A.K. Nayak and Debakinandan Mohapatra and Addl. Standing Counsel, for the Respondent
The requirement of prior approval under Section 10-A (1) of the Orissa Education Act, 1963 is mandatory, but an appointment made without prior approval is not void but valid until the approval is refused by the concerned authority.
Headnote:
EDUCATION - SERVICE OF TEACHERS - SECURITY OF SERVICE - TERMINATION OF SERVICE - PRIOR APPROVAL OF CONCERNED AUTHORITY - REQUIREMENT MANDATORY - APPOINTMENT WITHOUT PRIOR APPROVAL - NOT VOID BUT VALID UNTIL APPROVAL REFUSED - APPROVAL CAN BE POST FACTO - MANAGING COMMITTEE ESTOPPED FROM CHALLENGING VALIDITY OF APPOINTMENT MADE BY IT WITHOUT PRIOR APPROVAL - LACK OF REQUISITE QUALIFICATION - TERMINATION OF SERVICE POSSIBLE AFTER OBTAINING PRIOR APPROVAL - VOID AND VOIDABLE ORDERS - DISTINCTION - APPOINTMENT OF HEADMASTER - PRIOR APPROVAL REQUIRED - TERMINATION OF SERVICE WITHOUT PRIOR APPROVAL - ILLEGAL.
Fact of the Case:
Rasananda Lenka, the Headmaster of Majhipada M.E. School, was terminated from service by the newly constituted Managing Committee without obtaining prior approval from the concerned authority as required by Section 10-A (1) of the Orissa Education Act, 1963 (the Act). Rasananda appealed to the State Education Tribunal, which set aside the termination order and ordered his reinstatement with back pay.
Finding of the Court:
The Court held that the requirement of prior approval under Section 10-A (1) of the Act is mandatory and that the termination of Rasananda's service without obtaining such approval was illegal. However, the Court also held that an appointment made without prior approval is not void but valid until the approval is refused by the concerned authority. The Court further held that the Managing Committee is estopped from challenging the validity of an appointment made by it without prior approval.
Issues: 1. Whether the requirement of prior approval under Section 10-A (1) of the Act is mandatory? 2. Whether an appointment made without prior approval is void or valid? 3. Whether the Managing Committee can challenge the validity of an appointment made by it without prior approval?
Ratio Decidendi: 1. The Court held that the requirement of prior approval under Section 10-A (1) of the Act is mandatory because the section clearly states that the service of a teacher shall not be terminated without obtaining prior approval. This requirement is necessary to protect the security of service of teachers. 2. The Court held that an appointment made without prior approval is not void but valid until the approval is refused by the concerned authority. This is because a strict interpretation of the requirement of prior approval would lead to disastrous consequences, such as teachers being denied their salaries for the period of service rendered prior to the refusal of approval. 3. The Court held that the Managing Committee is estopped from challenging the validity of an appointment made by it without prior approval. This is because the Managing Committee is estopped from denying its own act of appointment.
Final Decision: The Court dismissed the petition filed by the Managing Committee challenging the order of the State Education Tribunal.
JUDGMENT :
B.L. Hansaria, C.J. - An important question relating to the security of service of teachers of aided schools is involved in the present case. The importance of the subject-matter itself calls for a cautious approach by us. A feeling of security of service being necessary for drawing the best out of men, a Court cannot be a party which would shake this faith of teachers whose contribution is also material for the progress of a nation as they build the future citizens of a country.
2. We have opened the judgment with the above thoughts, because we have been called upon in the present case to decide whether the termination of the service of opp. party No. 6, Rasananda Lenka, who was serving at the relevant time as the Headmaster of Majhipada M.E. School, was in accordance with law or not.
3. The facts of the case lie in a narrow compass. Rasananda had been first appointed in the school as an Assistant Teacher on 1-7-1983 temporarily, but he continued to serve as such till he was appointed as the Headmaster of the school, first on ad hoc basis and then permanently, by order dated 4-4-1987 with effect from 6-4-1987. The school started receiving the grant-in-aid from 1-8-1987. Subsequently, a new Managing Committee was constituted which assumed office on 27-10-1987 and the first 'holy' act did was to terminate the service of Rasananda. Rasananda preferred an appeal before State Education Tribunal u/s 10 A (3) of the Orissa Education Act, 63 (for short, "the Act") and the earned Tribunal set aside the termination order on the ground that prior approval of the concerned authority as required by Section 10-A (I) of the Act had not been taken and so it ordered for reinstatement of Rasananda by observing that he would be entitled to his salary for the intervening period. The Managing Committee has assailed this order of the learned Tribunal in this petition.
4. It is not in dispute before us that prior approval of the concerned authority as required by Section 10-A (I) of the Act was not taken. It is also not in dispute that this requirement is mandatory in nature, as stated by a Bench of this Court in Nityananda Panigrahi v. Managing Committee Sindol Fakirmohan ME. School 62 (1986) CLT 30, because of which if Section 10 A(I) were to apply, termination of service without obtaining prior approval of the concerned authority would be invalid. There cannot also be any dispute to the submission advanced by Shri Nayak for opp. party No. 6 that a Managing Committee has to act in accordance with the provisions of the Act and the Rules and should not behave in a manner which would give an impression as if the institution is its private property, as stated in Sanjukta Samantray v. State of Orissa 58 (1984) CLT. 92.
5. Shri Misra appearing for the petitioner has taken an altogether different stand. According to him, the continuance of Rasananda in the school beyond six months of his first appointment was in violation of Rule 5 (3) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter, "the Rules"), inasmuch as prior approval of the concerned authority had not been taken as required by the Rules ; and so, the appointment of Rasananda in the school beyond the period of six months was void, for which reason prior approval contemplated by Section 10-A(I) of the Act was not required to be taken In support of this submission, Shri Misra refers to Kiran Shankar v. State of West Bengal 1977 LABIC 371 in which case a learned Single Judge of the Calcutta High Court stated in paragraph 28 that if any appointment is invalid, it is said to be null and void, and void acts are usually destitutes of legal effect. Reference is then made to Premavati v. Narendra Manila Vidyalaya 1984 (3) SLR 291, in which a learned single Judge of the Allahabad High Court, by relying upon a Bench decision in A.K. Pathasala v. M.D. Agnihotri 1971 AllLJ 983 held in paragraph
