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Jagatbandhu Patnaik Vs. Secretary Orissa Board of Secondary Education and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 432 of 1966
Judge
Reported inAIR1968Ori169; 34(1968)CLT364
ActsOrissa Secondary Education Act, 1953 - Sections 21 and 22; Orissa Education Code - Article 287(28); Orissa Education Act
AppellantJagatbandhu Patnaik
RespondentSecretary Orissa Board of Secondary Education and ors.
Appellant AdvocateR. Mohanty, ;R.N. Misra, ;Govind Das, ;A.K.J. Mohapatra, ;S.N. Misra, ;R.K. Kar, ;M.M. Sahu and ;B.B. Mohanty, Advs.
Respondent AdvocateAdv. General, ;Govt. Adv. and ;C.V. Murty, Adv.
DispositionPetition allowed
Cases ReferredLawrence v. King
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - this representation of the petitioner dated october 3, 1966, also failed as was intimated to the petitioner by the letter of the inspector of schools dated october 4, 1966, wherein it was stated that it is only that appeal which the inspector of schools thinks fit to forward to the board should go to the appeal committee for disposal and that the petitioner's appeal was in reality not an appeal which should have been forwarded to the appeal committee, for disposal. 3 of the managing committee held on 20-8-1966 is not according to the rules of the orissa education code and hence irregular'.17. so, the inspector having thus clearly disagreed with the managing committee,..........a recognised school at cuttack -- without forwarding his appeal against his dismissal to the appeal committee under the orissa secondary education act (orissa act x of 1953 hereinafter referred to as the orissa education act), read with the regulations made under the act by the board of secondary education, orissa as notified by government of orissa (hereinafter referred to as the board regulations).2. on august 20, 1966 the managing committee of the peari mohan academy passed a resolution by which its headmaster (petitioner herein) was discharged from service in the school, on the grounds, inter alia, of unauthorised alteration in the approved schemes and unauthorised expenditure of the school funds, thus causing loss to the school funds and misuse of government money, all as.....
Judgment:

Barman, C.J.

1. The point involved in this writ petition is whether, under the law, the Inspector of Schools, Cuttack, could dismiss the petitioner -- the Headmaster of Peari Mohan Academy, a recognised school at Cuttack -- without forwarding his appeal against his dismissal to the Appeal Committee under the Orissa Secondary Education Act (Orissa Act X of 1953 hereinafter referred to as the Orissa Education Act), read with the Regulations made under the Act by the Board of Secondary Education, Orissa as notified by Government of Orissa (hereinafter referred to as the Board Regulations).

2. On August 20, 1966 the Managing Committee of the Peari Mohan Academy passed a Resolution by which its Headmaster (petitioner herein) was discharged from service in the School, on the grounds, inter alia, of unauthorised alteration in the approved schemes and unauthorised expenditure of the School funds, thus causing loss to the School funds and misuse of Government money, all as fully stated in the Resolution passed on that date.

3. On August, 23, 1966 the petitioner made a representation to the Secretary of the School by way of protest against the said Resolution discharging him from service as the Headmaster and submitted his points for consideration.

4. The following day, August 24, 1966, the petitioner also filed an appeal, under the Orissa Education Code, to the Inspector of Schools, Cuttack Circle, against the decision of the Managing Committee discharging him from service as Headmaster of the Peari Mohan Academy on the grounds state-ed therein.

5. On September 8, 1966, the Inspector of Schools after enquiry gave his findings on the petitioner's appeal holding that the discharge order cannot be accepted being irregular on the various ground? stated in the finding:.

6. On September 13, 1966, the Inspector of Schools, purporting to act under Article 287(28) of the Orissa Education Code, dismissed -- the appeal It is this order of dismissal of the appeal, without forwarding the appeal to the Appeal Committee, which the petitioner challenges in this writ petition.

7. On October 3 1966, the petitioner made a representation to the President of the Board of Secondary Education that the said impugned order was illegal in that the Inspector of Schools had not forwarded the petitioner's appeal to the Appeal Committee of the Board as a result of which his appeal could not be heard by the Appeal Committee. The petitioner's point is that his appeal should have been dealt with and decided by the Appeal Committee and not by the Inspector of Schools. This representation of the petitioner dated October 3, 1966, also failed as was intimated to the petitioner by the letter of the Inspector of Schools dated October 4, 1966, wherein it was stated that it is only that appeal which the Inspector of Schools thinks fit to forward to the Board should go to the Appeal Committee for disposal and that the petitioner's appeal was in reality not an appeal which should have been forwarded to the Appeal Committee, for disposal. The writ petition was filed in this court on November 16, 1966.

8. The question is: Has the Inspector of Schools such discretion to forward or not to forward an appeal to the Appeal Committee as he thinks fit? This requires an examination of the relevant provisions of the Orissa Education Act, the Regulations made thereunder, and the Orissa Education Code.

9. The relevant provisions of the Orissa Education Act so far as material are these:

'21 (1) The Board may make Regulations for the purpose of carrying into effect the provisions of the Act.

(2) In particular, and without prejudice to the generality of the foregoing power, the Board may make regulations providing for all or any of the following matters, namely:

XX XX XXXX XX XX(f) pay and allowances for teachers and other employees of Secondary Schools or other institutions controlled by it, and conditions of service such as appointment, promotion punishment, appeals against order of punishment, transfer, pay, pension, provident fund, gratuity if any and age of superannuation.

22. The first set of Regulations shall be made by the State Government after previous publication, and they shall be deemed to have been made by the Board and continue in force until Regulations are framed by the Board as required under Section 21 of this Act, either by revision, addition, alteration, or modification.'

10. Chapter VII of the Regulations deals with Committees of the Board. Regulation 34 which relates to Appeal Committee is this:

'34 The duties of the Committee shall be to examine any appeal preferred by a discharged teacher from a recognised school to the Inspector of Schools and forwarded by the latter with the remarks of the Managing Committee of the School thereon and his own opinion and to give its decision on behalf of the Board '

11. The provision in the Orissa Education Code under which the Inspector of Schools, purports to have discharged the petitioner from service as Headmaster, is Article 287(28) of that Code which is as follows:

'Every teacher on appointment shall be required to undertake to give a month's notice before resigning his post and no teacher shall be discharged without such notice except in the case of gross misconduct or absence without leave. If a permanent teacher is discharged, the reason for his discharge must be recorded in the resolution of the Managing Committee discharging him and must be communicated to him forthwith. Any teacher discharged with or without notice may submit an appeal to the Inspector of Schools within 10 days of receiving the order of discharge. 'If the Inspector agrees with the Managing Committee, he will inform the appellant and no further action will be taken. If he disagrees with the Managing Committee, he will forward the appeal to the Secretary of the Board of Secondary Education with the remarks of the Managing Committee thereon and his own opinion. The decision of the Board of Secondary Education will be final'.'

(Underlining (here into ' ') in the above quotation is mine)

12. Apparently Article 287(28) -- particularly the underlined portion -- in the matter of forwarding of appeals by the Inspector of Schools is in conflict with the Board Regulation 34 made under the Orissa Education Act quoted above, in that, under the Orissa Education Code, the duty is cast on the Inspector to forward the appeal to the Secretary to the Board of Secondary Education only if he disagrees with the Managing Committee, but if he agrees with the Managing Committee he will merely inform the appellant and no further action will be taken at all as provided in Article 287 (28); while under Regulation 34 no discretion appears to have been left with the Inspector in the matter of forwarding of appeals preferred by a discharged teacher of a recognised school to the Inspector, as he has to forward any appeal preferred by a discharged teacher with the remarks of the Managing Committee of the School thereon and his own opinion as provided in the said Regulation.

13. As regards the legal validity of the Orissa Education Code, the settled position in law is the rules of the Orissa Education Code are merely departmental Regulations which do not create any statutory or legally binding rights and duties and they do not derive their validity by virtue of anv legislative sanction, as decided by a Division Bench of this Court in Bantchanidhi Samantarai v. Secy Bhaktmadhu Vidyapith 18 Cut LT 334 = (AIR 1952 Ori 2591.

14. That apart, the subsequent omission in Regulation 34 of the words 'if he disagrees with the Managing Committee' occurring in Article 287(28) is not without significance. The provision in Article 287 (28) of the Orissa Education Code was made as early as 1928/1934 by G. O. No. 6246-E dated November 28, 1928 and Resolution of the Board of Secondary Education dated September 17. 1939 The subsequent change in the language of the statutory Regulation 34 of the Board Regulations notified by Government of Orissa Notification No. 11283-E dated December 22, 1955 and subsequent orders issued from time to time under Secondary Education Act, 1953 is sufficiently indicative of the legislative intention. When the legislature, in legislating in pari materia and substituting certain provisions in the Act for those which existed in the earlier statute has entirely changed the language of the enactment, it must be taken to have done so with some intention and motive. This rule of construction is supported by authority. Where the English Highways Act of 1864 (c 101) Section 25, imposed a penalty on the owner of cattle found lying on a highway 'without a keeper' and the same provision was re-enacted without the last words, the omission was construed as obviously showing the intention that the presence of a keeper should no longer absolve the owner from liability (Queen v. Price, (1870) 6 QB 411, 416, 417; Lawrence v. King, (1868) 3 QB 345 and Maxwell on Interpretation of Statutes 11th Edition. 36).

15. In the present case, the discretion of the Inspector in Article 287(28) of the Orissa Education Code, to forward the appeal only 'if he disagrees with the Managing Committee' has been advisedly dropped out in the subsequent legislation, namely, Regulation 34 of the Board Regulations under the Orissa Secondary Education Act, 1953. Therefore the change of language in Regulation 34 made under the Act omitting the words 'if he disagrees with the Managing Committee' is sufficienly indicative of the legislative intention to do away with the Inspector's discretion; in other words what the statutory Regulation 34 enjoins upon the Inspector was to forward to the Appeal Committee of the Board all appeals, whether the Inspector agrees or disagrees with the Managing Committee. Indeed, unless this interpretation is accepted, it would lead to an absurd position in that Regulation 34 will be made unworkable and nugatory the appeal Committee constituted under the Orissa Education Act -- which created an appellate forum -- will cease to be effective, and the Inspector will be the final arbiter with regard to these appeals. It was this mischief which the subsequent legislation --the Orissa Education Act -- wanted to suppress by Regulation 34 made under the Act.

16. Assuming that the Board Regulation 34 has to be read along and as reconciled with Article 287(28) of the Orissa Education Code in that the Inspector has discretion only to forward the appeals where he disagrees with the Managing Committee, even so in this particular case the Inspector was bound to forward the appeal because he disagreed with the Managing Committee as would appear from the Inspector's findings dated September 8, 1966, as quoted below:

'This discharge order cannot be accepted as r.esular on the following grounds:

(a) Adequate defence has not been given to the Headmaster on his explanation before passing the discharge order

(b) One month's notice has not been given to the Headmaster, or the reason for not giving such notice has been communicated to him before the discharge order is passed.

(c) Provision under Rule 28 of Article 287 of the Orissa Education Code read with Clause (6) of Appendix XIV has not been properlv followed in case of passing discharge order on the Headmaster.

The discharge order of Headmaster, therefore, passed in resolution No. 3 of the Managing Committee held on 20-8-1966 is not according to the Rules of the Orissa Education Code and hence irregular'.

17. So, the Inspector having thus clearly disagreed with the Managing Committee, was hound to forward the appeal to the Appeal Committee of the Board of Secondary Education with the remarks of the Managing Committee thereon and his own opinion, as required by law. But, instead of forwarding the appeal of the petitioner, what the Inspector did was that he purported to dilute the effect of his disagreement with the Managing Committee by adding to his order as direction by way of remand, namely, this:

'The Managing Committee is therefore requested to regularise their orders strictly adhering to the provisions of the Orissa Education Code as stated above in order to enable the Inspector of Schools, Cuttack Circle, to pass necessary order on the appeal petition of the Headmaster.'

Indeed, this direction was by way of a remand which the Inspctor had no iurisdic-tion to do under the law.

18. When ultimately, on September 13, 1966, the Inspector purported to pass what he calls 'the final order', he observed:

'I see no reason to differ from the Managing Committee of the P. M. Academy, Cuttack, on the point of discharge of the appellant from service under them. I entirely agree with the management and dismiss this appeal '

19. In my opinion, the Inspector having once disagreed with the Managing Committee as expressed in his findings dated September 8, 1966 as quoted above, he should have forwarded the petitioner's appeal petition to the Appeal Committee of the Board of Secondary Education instead of himself decidine the appeal which the Inspector had no jurisdiction to do; the sending back of the appeal to the Managing Committee with the request to regularise their orders appears to be a mere ingenious device to get round the provisions of Article 287(28) of the Orissa Education Code which enjoins on the Inspector to forward the appeal as he disagreed with the Managing Committee.

20. Thus, in either view of the matter as discussed above, the impugned order dated September 13 1966 by which the Inspector of Schools dismissed the petitioner's appeal against his discharge from service must be quashed.

21. In the result, therefore, this writ petition is allowed, the order of the Inspector of Schools, Cuttack Circle, dated September 13, 1966 is quashed and he is directed to forward the appeal of the petitioner to tha Appeal Committee of the Board of Secondary Education, within a week from the receipt of this order, for disposal according to law The petitioner is entitled to get the costs of this petition from the appropriate Department represented by the Inspector of Schools Cuttack Circle, Cuttack.

Hearing fee is assessed at Rs. 100 (Rupees one hundred only).

Ray, J.

22. I agree to the order proposed by my Lord the Chief Justice.

The construction put upon Board's Regulation 34, by learned Counsel for the petitioner is not free from doubt, and I express no opinion on it, because as has beenheld by my Lord, with whom I respectfullyagree, the Inspector of Schools having disagreed with the Managing Committee, asexpressed in his findings dated 8th September 1966, he should have forwarded the appeal of the petitioner to the Appeal Committee, and on this short point alone thepetition is bound to succeed.


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