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Muralidhar Pradhan Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 927 of 1977
Judge
Reported inAIR1983Ori80
ActsOrissa Education Code - Article 287
AppellantMuralidhar Pradhan
RespondentState of Orissa and ors.
Appellant AdvocateA. Das and ;M.S. Panda, Advs.
Respondent AdvocateAddl. Standing Counsel and ;G.A.R. Dora, Adv.
DispositionPetition allowed
Cases ReferredGokaraju Rangaraju v. State of Andhra Pradesh
Excerpt:
.....218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the doctrine is founded on good sense, sound policy and practical experience. also it is alleged that the petitioner had applied in 1974 to be taken in as a teacher and being unsuccessful in this attempt the petitioner forcibly entered into the school premises with certain rowdy persons and took away papers and keys from the headmaster forcibly......of puri on 2-6-1970. his appointment was approved by the inspector of schools. the reconstituted managing committee of the school which appointed the petitioner as teacher was quashed by the high court in o. j. c. no. 730 of 1970 and the old managing committee started functioning. the high court directed the d. i. of schools to disburse the salary of the teachers for the years 1971-72 and 1972-73. another person was appointed as a teacher in place of the petitioner by the old managing committee which started functioning again after the quashing of the reconstituted managing committee. but the petitioner has not been paid his dues as directed by the high court in o. j. c. no. 318 of 1973 (annexure-b). petitioner has, therefore, prayed for directing opposite parties 1 to 4 to pay up his.....
Judgment:

Das, J.

1. Petitioner was appointed as a teacher in the Majhiakhanda M. E. School in the district of Puri on 2-6-1970. His appointment was approved by the Inspector of Schools. The reconstituted managing committee of the school which appointed the petitioner as teacher was quashed by the High Court in O. J. C. No. 730 of 1970 and the old managing committee started functioning. The High Court directed the D. I. of Schools to disburse the salary of the teachers for the years 1971-72 and 1972-73. Another person was appointed as a teacher in place of the petitioner by the old managing committee which started functioning again after the quashing of the reconstituted managing committee. But the petitioner has not been paid his dues as directed by the High Court in O. J. C. No. 318 of 1973 (Annexure-B). Petitioner has, therefore, prayed for directing opposite parties 1 to 4 to pay up his entire salary as per order of the High Court and according to Government rules regarding direct payment of salary to teachers of the aided schools.

2. Petitioner's case is that he functioned as a teacher and also took charge of the school from other teachers including the headmaster. When the old managing committee started functioning after quashing of the reconstituted managing committee, he has not been paid anything towards his salary, even though the High Court directed the managing committee to pay up the salary of the teachers.

3. In the return filed by opposite parties 1, 3 and 4, it has been stated that there was a managing committee of the school which was reconstituted. After reconstitution, the said managing committee started functioning. While the reconstituted managing committee was functioning, the petitioner was appointed as a teacher in the school on 2-6-1970 and this appointment was approved by the Inspector of Schools. Meanwhile, opposite party No. 2 filed O. J. C. No. 730 of 1970 challenging the reconstitution of the managing committee. The writ petition was allowed and it was held that the reconstituted managing committee was invalid. Therefore, all acts of the reconstituted managing committee have been considered void in law and, as such, the appointment of the petitioner by the said managing committee has become null and void. The managing committee has also treated the appointment of the petitioner as null and void. The petitioner never actually served in the school although he simply signed the attendance register from 2-6-1970, with the connivance of the reconstituted managing committee which was quashed by the High Court by order dt. 10/19-1-1971. Although the new managing committee was declared to be invalid, it continued to work till 15-2-1970 as the period from 19-1-1971 to 15-2-71 was occupied in communication of the High Court order to the concerned authorities and implementation of the order. Therefore, the petitioner simply signed the attendance Register in connivance with the reconstituted managing committee till it ceased to exist. In O. J. C. No. 318 of 1973, the High Court directed payment of salary to the staff of the school who were appointed by the managing committee, namely, the old managing committee, which was revived after the reconstituted managing committee was quashed and therefore, the case of the petitioner is not covered by the direction of the High Court. On enquiry into the question of continuance of the service of the petitioner, the D. I. of Schools made a report to the effect that the petitioner had not been allowed by the Secretary of opposite party No. 2 to join his post, but in the report it was written by mistake that he had been retrenched. But this was not the position. The petitioner was not at all retrenched and, as such, there was confusion in asking the managing committee, opposite party No. 2, to reinstate the petitioner. But, in fact, the appointment of the petitioner has been considered to be invalid because the managing committee which had appointed the petitioner was declared to be invalid.

In the counter filed by opposite party No. 2, it is stated that though the High Court quashed the reconstituted managing committee, it continued functioning till 17-5-1971, when the old managing committee started functioning. The committee by which the petitioner was appointed has been held to be illegal. The petitioner was not appointed by the old managing committee which was a valid committee. Therefore, the petitioner was never a teacher of the school, inasmuch as he was not appointed by a valid managing committee. As such there was no scope to terminate the services of the petitioner or to obstruct him from working as a teacher. In 1974, the petitioner requested opposite party No. 2 to take him as a teacher, but opposite party No. 2 expressed that it was not possible to take the petitioner as a teacher. Thereafter, on 29-4-1974, the petitioner with some rowdy elements entered into the school and forcibly took away some records of the school by threatening the teachers. The headmaster reported the matter to the police and the managing committee was compelled to shift the classes to another building under intimation to opposite party No, 3. Opposite party No. 3 directed the petitioner to vacate his Illegal occupation of the school building.

4. Undisputed facts are that there was a managing committee of the M. E. School. This was reconstituted, While the reconstituted managing committee was functioning, the petitioner was appointed as a teacher in the school, The reconstitution of the managing committee was quashed by the High Court while the old managing committee challenged the reconstitution of the managing committee. After the reconstituted managing committee was quashed, the old managing committee started functioning from 15-2-1971. Thereafter, as the Government grant was not released fop payment to the teachers, another writ petition (O. J. C. No. 318/73) was filed praying to direct release of the grant-in-aid for the years 1970-71, 1971-72 and 1972-73. The High Court directed payment of the arrear pay and allowances for the years 1971-72 and 1972-73. The common stand taken by all the opposite parties is that the petitioner was appointed by a managing committee which was declared to be invalid by the High Court and, as such, the appointment of the petitioner is also invalid. The question, therefore, arises that when the reconstitution of the managing committee has been declared to be invalid, whether the actions taken by the said managing committee while functioning as such would be deemed to be invalid or not. As early as in 1912 such a, matter came up for consideration before a Bench of three Judges in Pulin Behari Das v. King Emperor, (1912) 15 Cal LJ 517. After noticing a large number of decisions and the position of law in England, it was held that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of officers de jure. The doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who held office de facto are not so easily undone and may have lasting repercussions and confusing sequels it attempted to be undone. Therefore, the de facto doctrine came into existence. This principle has been elaborately discussed noticing a large number of decisions. In Immedisetti Ramkrishnaiah Sons v. State of Andhra Pradesh, AIR 1976 Andh Pra 193, Government nominated certain persons to constitute the market committee. Subsequently, the nomination of the members of the committee was declared illegal by the High Court. It was held that the acts done by committee including the declaration of market area in the interregnum prior to its being declared as illegally constituted must be upheld as valid in law. The very same question of de facto doctrine was considered by the Supreme Court in Gokaraju Rangaraju v. State of Andhra Pradesh, AIR 1981 SC 1473. Following the doctrines laid down in Pulin Behary case and Immedisetti case (both referred to above) which were upheld and reaffirmed by the Supreme Court and quoting Cooley's 'Constitutional Limitations' it was observed that an officer de facto is one who by some colour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His colour of right may come from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the qualifications, or it may come from public acquiescence in the officer holding without performing the precedent conditions or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact whose acts, public policy requires should be considered valid.

It is not disputed that appointment of the petitioner as a teacher has been done under Article 287 of the Orissa Education Code which has the force of law. Therefore, the position stands that there was a reconstituted managing committee. That managing committee appointed the petitioner while exercising its powers under Article 287 of the Code. The reconstituted managing committee was subsequently held to be invalid. In view of the dictum of the Supreme Court as stated above, the acts of the managing Committee appointing the petitioner cannot be said to be invalid, inasmuch the de facto doctrine comes into operation. Therefore, the contention of the opposite parties that because the reconstituted managing committee was held to be invalid, the appointment of the petitioner is to be held invalid does not stand. We would, accordingly, hold that the appointment of the petitioner by the reconstituted managing committee was valid.

5. It is not disputed that by judgment in O. J. C. No, 318 of 1973 (Annexure-B) this Court directed payment of salary of the teachers for the years 1971-72 and 1972-73. It is contended by the opposite parties that the petitioner never worked in the school. He was only signing the attendance register in connivance with the Secretary of the reconstituted managing committee. Also it is alleged that the petitioner had applied in 1974 to be taken in as a teacher and being unsuccessful in this attempt the petitioner forcibly entered into the school premises with certain rowdy persons and took away papers and keys from the headmaster forcibly. The headmaster also complained this fact to the police, Annexures D/2, E/2, and F/2 clearly support this contention. But the petitioner contends that he was working as teacher and he is, therefore, entitled to his remuneration. But opposite party No. 2 obstructed him from functioning, In view of these disputed facts, it cannot be definitely said that the petitioner functioned as a teacher or not. It is also asserted by opposite parties 1, 3 and 4 that on enquiry by the D. I. of schools, it was found that the petitioner was not working. In view of such conflicting contentions, we think it proper that a detailed enquiry may be made by the D. P. I. as to the disputed facts and if the petitioner was really obstructed by opposite party No. 2 from functioning in the school, he would be entitled to his remuneration. But if the petitioner did not actually work in the school and simply signed the attendance register and forcibly occupied the school building and the classes were shifted to another building, the petitioner would not be entitled to any remuneration. He is entitled to remuneration only for the period when he actually worked as a teacher of the school.

6. In the result, the writ petition is allowed, subject to the observations and directions made above. No costs.

R.C. Patnaik, J.

I agree.


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