1. Petitioners before us are teachers in the employment of the Cuttack Municipality. Both of them were recruited as Assistant Teachers -- petitioner No. 1 on 13-8-1962 and petitioner No. 2 on 4-8-1964. At the time of recruitment, both were Matriculates. Some Upper-Primary Schools within the municipal area of Cuttack were upgraded as Middle English Schools and came to be known as Panchayat Samiti M. E. Schools with effect from 1974. The U. P. School at Sutahat was one of them. The Inspector of Schools (opposite party No. 2) appointed opposite party No. 4 as a teacher by his order dated 23-10-1975 (Annexure-G/4) on temporary basis and she was posted in the Sutahat Panchayat Samiti M. E. School. Opposite Party No. 5 came on transfer under orders of opposite party No. 2 as Headmistress of the Practising Urdu Upgraded M. E. School run by the Municipality. Challenge in this application is to the transfer and posting of opposite parties 4 and 5, in Schools run by the Cuttack Municipality on the basis that petitioners are municipal employees and are in one cadre while opposite parties 4 and 5 are not municipal employees and cannot be members of the cadre and the said two teachers cannot be said as municipal employees and should not be allowed to prejudice the promotional prospects of the petitioners on the basis of their own seniority. It has been further claimed that the appointment of opposite parties 4 and 5 in Municipal Schools being an act without jurisdiction, they should be withdrawn from the schools run by the Municipality and the vacancies should be filled up by municipal teachers.
2. Four separate returns have been made to this Court to the rule nisi. Opposite parties 1 and 2 have filed a common counter while each of the remaining opposite parties have filed a separate counter. The Municipality through its Executive Officer has taken the stand that the up-gradation of the schools has been made under resolution dated 5-6-1978 published in the Orissa Gazette on July 28, 1978, The resolution incorporates a scheme that the upgraded schools should be run by thelocal bodies and thus the schools belong to the Municipality. The Orissa Municipal Act makes provision for appointment of municipal employees and that power is conferred on the authorities indicated in the statute and the rules made thereunder. In regard to municipal schools, the jurisdiction of the Inspector of Schools is very limited and, therefore, appointment and posting of teachers in municipal schools cannot be controlled by the Inspector. Municipal employees are subject to the disciplinary jurisdiction of the authorities under the Act and the Inspector, therefore, cannot interfere in the matter. The Municipality has produced along with its counter affidavit the correspondence in which the same stand had been taken while objecting to interference of the Inspector. Shortly stated, the stand of the Municipality supports the contention of the petitioners.
The other three affidavits have adopted a common stand of supporting the action complained against by the petitioners.
3. There is no dispute that the up-gradation had been made on the Government orders and resolution of 5th June, 1978 (annexure-1) gave a complete shape to the matter. The relevant portion of the resolution may now be extracted:--
'In order to achieve the goal of universalisation of Elementary Education, a large number of M. E. Schools have been opened during the V-Plan period in the State by way of upgrading 5-class U. P. Schools. Some of the 5-class U. P. Schools which have been upgraded were Government U. P. Schools. The non-Government U. P. Schools were Schools under the direct management of the District Inspector of Schools and the Schools under the control and management of Urban Local Bodies and Panchayat Samities. The question of laying down the service conditions of the teachers appointed newly in these upgraded M. E. Schools was under the consideration of Government for some time past. After careful consideration Government have been pleased to decide as follows:--
(1) Teachers of all the M. E. Schools opened by upgrading existing Government U. P. Schools will enjoy the same service conditions and benefits as applicable to Government servants. These schools will be managed in the same manner in which Government M. E. Schools are managed.Similarly, the teachers in the upgraded M. E. Schools under the control and management of Urban Local Bodies will enjoy the same service conditions and benefits as applicable to the teachers of the concerned Urban Local Bodies. Salaries in respect of these teachers under the Urban Local Bodies shall be paid in shape of grant-in-aid to the Urban Local Bodiesand the Schools will be managed by them......'
(underlining is ours)
Chapter-VIII of the Orissa Municipal Act makes provision for establishments under the Municipal Council. Section 73 of the Act confers power in the Municipal Council to determine its establishments. The Rules made under the Municipal Act specify the classes of employees and teachers are included in 'Rule 427 and Appendix-A. It is thus clear that the statutory provisions authorise a municipal council to run schools, employ teachers and regulate their service. Obviously, in view of these provisions, the resolution in Annexure-1 left the management of the upgraded schools within the urban area to the control of the urban units. The action of the Inspector of Schools in transferring persons from outside into the municipal cadre of teachers is thus wholly unauthorised. The action of protest taken by the Municipal Executive Officer is wholly justified and the Inspector's action of posting teachers from outside cannot be maintained. The posting of opposite parties 4 and 5, therefore, must be annulled.
4. Opposite parties 4 and 5 have been duly selected into service. Though their posting is bad, we do not think, by our order their service would be terminated. While declaring the posting of opposite parties 4 and 5 in municipal schools as bad, we make it clear that the Inspector shall not terminate their service, but within a period of six months from now shall have their services withdrawn from municipal schools and shall adjust them appropriately in schools under his jurisdiction.
5. The writ application succeeds. There would, however, be no order for costs.
B.N. Misra, J.