Supreme Court of India
PABITRA MOHAN DASHversusSTATE OF ORISSA AND ORS.
- Citation
- 2001 INSC 8
- Decided
- 4 January 2001
- Disposal
- Dismissed
- Bench
- G B PATTANAIK
Holding
The Special Bench correctly re‑examined the issues, held that appointments violating Regulation 17 are invalid, that Inspector’s approval is not lawful, and that "in‑charge" headmasters have no entitlement to the headmaster’s post or pay.
Summary
The appellants, who were headmasters of schools that later became aided or government institutions, challenged a Special Bench of the Orissa High Court that set aside earlier Full Bench judgments allowing them to continue as headmasters despite not meeting the qualifications prescribed in Regulation 17. The Supreme Court examined whether the Special Bench could re‑examine the issue, whether appointments made without the required seven years of teaching experience were invalid, and whether approval by the Inspector of Schools constituted lawful approval under Rule 8(2)(b). It held that the Special Bench was entitled to reconsider the matter and that any appointment made contrary to Regulation 17 is void and confers no right on the appointee. The Court further ruled that the Inspector’s approval is not a valid approval under the recruitment rules and that an "in‑charge" headmaster cannot claim the rights or pay of a regular headmaster. Consequently, the appeals were dismissed, affirming the Special Bench’s conclusions.
Issues considered
- Whether a Special Bench can revisit and overturn earlier Full Bench judgments and withdraw benefits accrued to the appellants.
- Whether appointments of headmasters not satisfying Regulation 17 (trained graduate with seven years experience) are invalid.
- Whether approval by the Inspector of Schools amounts to lawful approval under Rule 8(2)(b) of the Recruitment Rules.
- Whether an "in‑charge" headmaster is entitled to the rights and pay of a regular headmaster.
- Whether the Special Bench's re‑examination infringes any vested rights of the appellants.
Legislation cited
- Orissa Education Act, 1969s. 10, s. 10-C, s. 27, s. 3(m), s. 6
Subjects
service lawappointmentheadmaster qualificationRegulation 17Rule 8special benchfull benchinvalid appointmentin‑charge headmaster
Judgment
PABITRA MOHAN DASH A
v.
STATE OF OR!SSA AND ORS.
JANUARY 4, 2001
[G.B. PATTANAIK AND B.N. AGRAWAL, JJ.] B
.le- Service law:
Orissa Education (Recruitment and Condition of Service of Teachers
and Principals and Staff of Aided lnslituliolis) Rules, 1974: Rules 6, 7 and 8. C
Regulation 17 (w.ef 29-4-l 977)-Seconda1y Schools-Headmasters
of-Minimum qualificalions-Trained graduate in Arts or Science with
-+- minimum 7 years' experience after /raining-Prior to Regulation 17 minimum
qualificalion was only a trained graduate-Full Bench of High Court after
considering Ac/, Rules and Regulations issued certain direclions-Second D
Full Bench affirmed !he said directions-However, Special Full Bench held
the direclions issued by firsl full Bench lo be contrary lo la11~Special Full
Bench also held thal order of approval passed by Inspector of Schools in
respecl of Headmasters not possessing minimum experience was invalid-
Whether Special Bench right in reconsidering matter afresh-Whether benefits
accrued to persons under first Full Bench could be taken away by Special E
Bench-Held: No infirmity in the Special Bench reconsidering the matter
afresh and re-determining the issues-Special bench justified in taking away
benefits accrued as a result of erroneous interpretation of la11~Appoinlmenl
made contrary to Regulation 17 is invalid and does not confer any right on
7--- the appointees-Where such appoi/1/ment is made with prior approval of F
Director of Education it cannot be invalidated-Approval of appointment by
Inspector of Schools is no approval in the eyes of law- "In-charge"
Headmaster not same as headmaster and such persons cannot claim any
right even if such appoi11tme1it is approved by Competent Education
Authority-Orissa Seco11da1y Education Act, 1952-0rissa Educalion.
G
The appellants were headmasters of different schools in the State.
Regulation 17 (w.e.f. 29-4-1977) framed under tile Orissa Secondary
Education Act, 1952 ~tipulated that the Headmasters of these schools should
be at least a trained graduates in Arts or Science with minimum 7 years'
experience after training. A Full Bench of the High Court considered the H
81
82 SUPREME COURT REPORTS [2001] I S.C.R.
A provisions of the Act, Orissa Education '(Recruitment and Condition of Service ~-
of Teachers and Principals and Staff of Aided Institutions) Rules, 1974 and
j£
Regulations framed thereunder and issued certain directions. A second Full
Bench affirmed these directions and held that there was no need to reconsider
the judgment of the first Full Bench judgment. However, a Special Bench of
five Judges reconsidered the entire matter afresh and held that the directions
B issued by the first Full Bench were contrary to law. The Special Bench also
held that the order of approval passed by the Inspector of Schools in respect
of Headmasters who did not possess the minimum experience and appointed -~
after Regulation 17 came into force was invalid in terms of Rule 8(3) of the
Rules. Hence this appeal.
c On behalf of the appellants it was contended that the benefits accrued
to the appellants under the First Full Bench judgment and affirmed by the
second Full bench judgment could not be taken away by the Special Bench
judgment. +
Dismissing the appeal, the Court
D
HELD: I. The Special Bench rightly thought it appropriate to reconsider
and re-determine the issues involved in the light of the relevant provisions
of the Orissa Secondary Education Act 1952, Orissa Education Act, 1969,
Orissa Education (Recruitment and Condition of Service of Teachers and .JI-- -
Principals and Staff of Aided Institutions) Rules, 1974 and Regulations after
E
hearing at length on all issues and their was no infirmity on that score even
though the point of reference was of a limited nature. Courts exist to interpret
the law and while examining the provisions of any Act, Rule or Regulation
if it is felt that the earlier decision on the question is not clear on any
particular issue or has created confusion in resolving the disputes or has
F caused heardship to a group of people, it would be the duty of the court to ~
re-examine the matter after giving opportunity to all parties concerned and
by such process question of taking away anybody's vested right does not
arise. In the present case it is not a particular writ or order that had been
issued in favour of any individual is sought to be nullified by the subsequent
Special Bench decision. On the other hand the erroneous conclusion of the
G
relevant provisions of the Act, Regulation and Rules are sought to be
corrected and there is no infirmity in this approach of the Special Bench. +-
That apart, though point of reference may be of a limited nature but in
answering the same if the Court feels that it would be in the interest of
justice to constitute a larger bench and examine the correctness of any
H earlier conclusion which might ha·.'e been made on an erroneous interpretation
P.M. DASH v. ST ATE 83
-· ~\
of any provision, then there would be no fetter for adopting that proceilure.
Therefore, there is no infirmity with the approach of th!! Special Bench in
re-examining the issues afresh in the light of the relevant provisions of the
A
I
Act, Rules and Regulations. 192-G; 93-A-B-C-DI
2.1. It is not disputed that with effect from 29-4-1977 Regulation 17
in the Board of Secondary Education has been brought into force which B
makes it obligatory for every institution to have a Headmaster who must be
.~- a trained graduate and must have 7 years of teaching experience as a trained
graduate teacher. If subsequent to 29-4-1977 any appointment has been made
to the post of Headmaster contrlity to the aforesaid provisions of the Regulation
then the said appointment would be invalid appointment and would not confer C
any right on the appointee. 193-E-FJ
2.2. The expression' approval' used lh the second direction of the first
full Bench judgment is referrable to the approval cantemplatcd under Ruic
8(2)(b) of the Recruitment Rules and, therefore; if there has been an approval
by the Director of Education then in such a case the appointment made after D
the prior approval would not be invalidated. The conclusion of the Special
Bench that an approval of the Inspector of Schools is no approval in the eyes
of law is the correct position, am.I as such, does not require any interference
·--- by this Court. 193-F-G-H; 94-A-BJ
2.3. A person who has been appointed as Headmaster i11-charge cannot
claim any right on the basis of that appointment even if the same might have
E
been approved by any Competent Educational Authority. The i11-clwrge
Headmaster is not the same as the headmaster of the school and it merely
entitles a person to remain i11-c/wrge and discharge the duties of a
Headmaster. Therefore, where the appointment itself has been to the post of
Headmaster as i11-ch11rge and such appointment had been approved, obviously F
the said appointee cannot claim to be continued as Headmaster or to be
entitled to get the scale of pay attached to the post of Headmaster.
193-H; 94-A-BJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3190 of
1999. G
-+- From the Judgment and Order dated 25.1.99 of the Orissa High Court
in O.J.C. No. 5897 of 1994.
WITH
Civil Appeal No. 4670 of 1999. H
84 SUPREME COURT REPORTS [2001] I S.C.R.
A (From the JUdgment and Order dated 20.4.99 of the Orissa High· Court
in O.J.C. No. 17923of1997.) I
Ranjit Kumar, P.N. Misra, S.B. Sanyal, Ms. Vanita Bhargava, Ms. Bina
Gupta Mrs. Rakhi Ray, Anukul Chandra Pradhan, Shiv Sagar Tiwari, Janaranjan
Das, K.K. Mahalik, D.P. Mohanty, Radha Shyam Jena, Dr. Dinabandhu Misra,
B S. Misra. A.Kumar, R.M. Patnaik, B. Swain, K.N. tripathi, Debasis Misra, Rajiv
Roy, J. Mohapatra, Krishnanand Pandeya and Ms. Anu Mohla for the appearing
parties.
The Judgment of the Court was delivered by
PATTANAIK, J. These two appeals are directed against a Special Bench
C judgment of the Orissa High Court dated 25th January, 1999. By the said
judgment some of the directions contained in the earlier Full Bench decisions
have been set aside. The appellants, who were Head Masters of different
Private Schools, and those schools became later on Aided Educational
Institutions; and finally became full fledged Government schools, are aggrieved
D by the impugned judgment of the Orissa High Court as in implementation of
the said judgment they cannot be continued as Head Masters.
Prior to the enactment of the Orissa Education Act, 1969 (hereinafter
referred to as "The Act"), the educational activities in the State of Orissa were
being regulated through a collection of executive instructions issued by the
E Government from time to time and those instructions had been embodied in
a Code, called 'Education Code'. The provisions of the Code had no statutory
support and, as such, the Government was not able to exercise effective
control over the management of the Non-Government Educational Institutions.
The management of such institutions were playing hire and fire with the
services of the teachers of the institution. The Orissa Legislature felt that
F such employees of the Non-Government Educational Institutions should be
protected from the exploitation by the management, and government also
should have some control over those Non-Government Institutions so that
conditions of the institutions would not deteriorate. It is with this object the
Orissa Education Act was enacted in the year 1969 and since then has been
G amended from time to time to suit the needs of the hour and by now the Act
of 1969 has been amended 9 times. Section 3 (m) defines the word 'prescribed'
to mean prescribed by rules. Section 6 provides the procedure for recognition
of the Educational Institutions. Sub-section ( 12) of Section 6 stipulates that
no Edi•cational Institution shall be eligible for affiliation or recognition by the
Board of Secondary Education constituted under the Orissa Secondary
H Education Act, 1952 or the Council of Higher Secondary Education constituted
P.M. DASH v. STATE [PATTANAIK,J.] 85
under the Orissa ·council of Higher Secondary Education Act, 1992 u"nless it A
has received recognition under the Act and continued to be so recognised.
Section 10 provides the conditions of service of the staff of aided institutions.
Section I0-C provides for constitution of a common cadre in relation to all or
any class of employees of all or any category of aided Educational Institutions
as may be specified in the order. Much prior to the enactment of the Act in
1969 the Orissa Legislature had enacted the Act in the year 1952 (Orissa Act B
I0 of 1953) called Orissa Secondary Education Act 1952 (hereinafter referred
to as 'the Secondary Education Act'). The Act intended to establish a Board
to regulate, control and develop secondary education in the State of Orissa.
The expression 'prescribed' has been defined in Section 2(i) of the aforesaid
Act to mean prescribed by regulations made by the Board under the Act. C
Section 3 of the aforesaid Secondary Education Act cast duty on the State
Government to constitute a Board called the Board of Secondary Education
to regulate, control and develop Secondary Education in the State of Orissa.
The Board is a body corporate with perpetual succession and a comm,9'1 seal.
Section 2(k) defines recognition to mean recognition for the admission to the
privileges of the Board including its examination. Section 2(i) defines Regulation D
to mean RegulatiCln made or deemed to have been made by the Board under
the Act. Section 21 is the power of the Board to make Regulation for the
purpose of carrying into effect the provisions of the Act. Chapter IX of the
Regulations deals with certain pre-conditions in respect of the educational
institutions. Regulation I of Chapter IX provides that no school which is not E
recognised by the Board shall be permitted to present candidates for any
examination conducted by the Board. Regulation 17 deals with the conditions
to be fulfilled before permission is granted to open certain classes and for a
school with class IX and above it must have a Head Master who has to be
a trained graduate in arts or science with minimum 7 years experience after
~- training. It is this condition prescribed under the Regulation for being appointed F
as Head Master of an aided educational institution which is the subject matter
of controversy in the impugned case and was the subject matter of controversy
in the cases where earlier Full Bench of the Hig~ Court had taken some
decisions which stood reversed by impugned judgment of the Special Bench
of Orissa High Court. In exercise of power under Secion 27 of the Act a set G
of Rules have been framed, called, the Orissa Education (Recruitment and
·+- Conditions of Service of teachers and principals and staff of Aided Edu.cational
Institution) Rules, 1974 ~hereinafter referred to as 'the Recruitment Rules').
Rule 6 provides procedure for selection of candidates on determining their
merit· and suitability in the manner as determined in Regulation of Selection
Board. Rule 7 provides condition of eligibility of candidates. Rule 7(c} further H
86 SUPREME COURT REPORTS [200 I] I S.C.R.
A stipulates that the age or qualification for appointment as a teache1' and for
other posts would be the same as for similar or corresponding post in •
educational institution established or maintained by the Government. Rule 8
carves out certain exceptions to the selection by the Board as provided in
Rule 6. Rule 8(3) is the procedure for filling up the post of Head Master and
Head Mistress of schools. Regulation 17 of Chapter IX of the Boards
B Regulation as well as Rule 8(3) of the Regulation Rules are extracted
hereinbelow in extenso:-
"Regulation 17. A school seeking to open Class IX shall be required
to fulfil the following conditions before permission to open the Class
is given,
c
(I )ADDITIONAL ACCOMMODA Tl ON :
Class room of the prescribed size - Additional classroom of minimum
floor area of 192 sq. Ft. And minimum width of 16 ft. (If more than two
additional subjects are taught in the school, for every additional
D subject one more room has to be provided.)
(2) ADDITIONAL STAFF:-
(i) Headmaster :- A Trained Graduate in Arts or Science with
E
(ii)
minimum 7 years experience after training.
One Trained Graduate teacher
(preferably having Sanskrit as one of the subjects in degree
stage)
---
(iii) Non-teaching staff:-
(iv) L.D. Assistant - One
F (3) ADDITIONAL FURNITURE:-
These should conform the approved list.
(4) ADDITIONAL APPARATUS:-
These should conform the approved Iist.
G (5) LIBRARY:-
At least books worth Rs.250 have to be purchased in addition to the
books already in stock."
Rule 8(3) of Education Rules-Vacancies in the posts of Headmasters
H of aided Boy's High Schools and Headmistresses of Girls High Schools
P.M. DASH v. STATE [PATTANAIK,.l.] 87
and Readers, including Principals of aided Colleges under the fold of A
the 'system direct payment of full-salary-cost' shall be filled up by the
eligible trained graduate teachers of respective categories of High
Schools and Headmasters and Head mistresses of respective categories
of Middle English Schools, and by the lecturers belonging to the
common cadre of the Aided Colleges, as the case may be, from the B
select list prepared by the Selection Board in the Manner prescribed
in the Regulation framed by the Selection Board for the purpose, on
the basis of the recommendation of a Committee to be constituted by
the Government which shall be headed by the Director. The selection
shall be made on the basis of seniority in the common feeding cadre
and performance. The zone of consideration shall be thrice the number C
of vacancies:
Provided that ad hoc promotions to the posts of Readers which
included Principals of aided Collegesasters of aided Boys" High
Schools and Headmistresses of aided Girls" High Schools under the
fold of the system of 'direct payment-of-full-salary-cost may however, D
be made from the concerned common feeding cadre for a period of one
year or till the date of receipt of select list from the Selection Board,
whichever is earlier with the prior approval of Government:
Provided further that in the absence of common feeling cadres,
appointment to the posts of Headmasters of aided Boys' High Schools E
and Headmistresses of aided Girls' High Schools of the State under
the fold of the system of direct-payment- of-full-salary cost can be
made by the authority from amongst the eligible trained graduate
teachers of the respective categories of aided High Schools and aided
Middle English schools, as the case may be, on the recommendation
of the Selection Board through an open advertisement. The Selection F
shall be on the basis of the length of service and performance as
trained graduate teachers in aided High Schools or Headmasters and
Headmistresses in aided Middle English Schools."
It may be noticed that Regulation 17 providing the qualification of the staff, G
as aforesaid, came into force on 29.4.1977 and Rule 8(3) of the Recruitment
+ Rules came into force on 3.5.1988. The provisions of the aforesaid Acts,
Regulation and Rules are complimentary to each other and are essentially
intended to confer powers on the Educational Authorities of the Government
to exercise control over the management of the institutions and also provide
conditions of service of the employees so that the management will not be H
88 SUPREME COURT REPORTS [200 I] I S.C.R.
A free to have any person as the employee of the institution nor would it be
free to terminate the service of the employee whenever it likes, even though
the power of the Management vest with the C,pmmittee of the Management
of the school. It must also be borne in mind that no school would be entitled
to present its students appearing at the High School Certificate Examination
unless the school gets recognition from the Board of Secondary Education
B and fu1ther the school must satisfy the Board before getting recognition that
it has the minimum staff with the prescribed qualification as provided under
Regulation 17.
Prior to the enactment of Orissa Education Act, under the so called
C Administrative Instructions called the Orissa Education Code the staffing
pattern of High School provided that the school shall have 4 posts of trained
graduate teachers including the headmaster apart from other teachers and
clerical staff. Thus any trained graduate teacher could be appointed as
Headmaster under the set of Administrative Instructions. Until 29.4.1977 when ~
the Regulations framed under the Secondary Education Act, 1952, was amended
D the prescribed qualification for the post of Headmaster of a school was merely
a trained graduate. By virtue of the amended Regulation, the said prescribed
qualification for the post of headmaster of a school became a trained graduate
in arts or science with minimum 7 years experience after training. It is to be
noticed that schools whether private or aided or Government will have to get
E recognition from the Board of Secondary Education without which it wou Id
not be permissible for the institution to present its candidates at the annual
High School Certificate examination and necessarily, therefore, the institution
will be entitled to get recognition only if it has the required number of staff
with the prescribed qualification and consequently a Headmaster will have to
be a trained graduate in arts or science with 7 years teaching experience after
F becoming such trained graduate. Though the regulation framed under the
Board of Secondary Education Act prescribed the qualification for the post
of a Headmaster neither the Education Act nor the Recruitment Rules of 1974
framed in exercise of powers under the Act of 1969 deal with or prescribe the
qualification for the appointment of.the Headmaster of a High School. Rule
G 8 of the Recruitment Rules, however, provides exception to the selection by
the Board and Rule 8(3) of the said Rules provides the procedure for filling
up of the vacancies in the post of Headmaster and the aforesaid Rule 8(3) +
came on 3.6.1988. As has been stated earlier, under the Orissa Education Code
the prescribed qualification for the post of Headmaster of a school was merely
a trained graduate whereas with effect from 29.4.1977 the prescribed
H qualification for the post of Headmaster under the Regulations framed under
P.M. DASHv. STATE [PATTANAIK,J.) 89
.., the Board of Secondary Education Act became a trained science graduate A
with 7 years of teaching experience after becoming a trained graduate. Since
'\ the provisions of the Regulation, Act and the Rules are complimentary to
each other, it must necessarily be held that no school can have a Headmaster
"'" after 29.4.1977 who does not possess the qualification of 7 years of teaching
experience as a trained graduate teacher. The schools usually start in villages
on private donations and continue for some period on the tuition fee received
B
from the students and the donation of the local public. After continuing for
r-~ some period the State Government grants financial assistance , called Grant-
in-aid and on receipt of such grant schools became aided educational
institutions, as defined in the Act as well as the Recruitment Rules of 1974.
Though the conditions of service of an aided educational institution is governedc
by the provisions of Recruitment Rules of 1974 which Rule confers adequate
control with the Educational Authorities even in the matter of appointment
of teachers in the institutions but the same having no application to the
private schools, the Managing Committee of the private schools who continue
to be the employer and were appointing teachers including the Headmaster
on their own. Though such private schools are also required to get recognition D
from the State Government without which they would not be eligible for
affiliation or recognition by the Board of Secondary Education constituted
under the Orissa Secondary Education Act, 1952, yet at the time of recruitment
of the personnel the Educational Authorities were not having any control
""""'__.,
over the process of recruitment and in the process many private schools E
which later on became aided educational institutions and finally landed up as
Government schools continued to have Headmasters even subsequent to
29.4.1977 when Regulation 17 was inserted by amendment without 7 years of
teaching experience after being a trained graduate. Right of such people to
continue as Headmaster came to be considered in the First Full Bench Judgment
r-- in the case Golakh Chand Mohanty v. State of Orissa and others After F
elaborate discussion of the different provisions of the Act, Regulation and
the Rules the said Full Bench in its judgment recorded five conclusions which
- have been quoted in paragraph 3 of the impugned judgment of the Special
Bench. A Batch of Writ Petitions subsequent to the aforesaid Full Bench
decision in Golakh Chand Mohanty 's case (supra) when were listed before G
a Division Bench the Division Bench felt that by applying the ratio of the Full
+ Bench decision in Golakh Chand Mohanty 's case (supra) great harassment
•
would be caused to all those teachers who had been appointed as Headmasters
of different un-aided schools when there was no such embargo or requirement
of 7 years of teaching experience as trained graduate teacher was there and
consequently, Golakh Chand Mohanty 's case (supra) may be re-considered. H
90 SUPREME COURT REPORTS [2001] I S.C.R.
A These batch of cases were ·heard by the subsequent Full Bench and the (
subsequent Full Bench also came to the conclusion that the decision in
Golakh Chand Mohanty 's case (supra) does not need re-consideration, as
has been noticed in paragraph 4 of the impugned judgment of the Special
Bench. After answering the reference, the cases were listed before the Division
Bench of the Orissa High Court and the learned Judge of the Division Bench
B felt, because of conflicting views of the earlier Division Benches of the said
Court on the question whether the Inspectors order or approval of an incumbent
of headmaster-incharge of the school is protected under conclusion no. 2
recorded by the Full Bench in the case of Golakh Chand Mohanty 's (supra),
and accordingly referred the cases again to a larger Bench. When the cases
C were listed before the Full Bench, the Full Bench felt that though a single
question has been referred to but yet there remain some grey areas in the
earlier two decisions of the Full Bench and, therefore, Special Bench of Five
Learned Judges was constituted to examine the entire controversy afresh.
After a thorough consideration of the matter Special Bench recorded its
conclusion in paragraph 19 which are quoted hereunder :-
D
"(a) The decision of the Full Bench of this Court in Golakh Chandra
Mohanty's case (supra) as contained in sub-paras (2), (3) and (4) of
paragraph 26 is contrary of law. In paragraph 26(2) of the judgment,
use of expression appointments is admittedly improper as there is no
question of direct appointment. In paragraph 20, the Full Bench itself
E observed that all posts were to be filled up as required by Rule 8(3)
of the Rules. Regulation 17(2) of Chapter IX of Boards Regulations is
applicable to both aided and unaided institutions and only when a
person is trained graduate with minimum of seven years of experience
after training is eligible to become as Headmaster.
F
(b) In Priti Ranjan's case (supra) the second Full Bench obseved that
the date 3.6.1988 has rational nexus with the object sought to be
achieved by the provisions. The conclusion is indefensible in view of
the analysis made above. The basis for such conclusion was enactment
of Rule 8(3). JN VIEW of the analysis made that the Regulation 17(2)(i)
G operated at all times, the basis for such conclusion does not hold
good. The conclusion in Golakh Chandra Mohanty's case (supra) as
followed in Priti Ranjan Pradhan's case that in cases where prescribed +
qualification had not been acquired by 3 .6.1988, but were acquired
subsequently were to be approved is clearly without any basis............... .
H (c) Thi: orders of approval passed by the Inspectors of Schools are
P.M. DASH v. STATE [PA TTANAIK. J.) 91
of no 'consequence and do not have any force on the question of A
promotion in terms of Rule 8(3)."
It is these conclusions of the Special Bench which are being assailed in these
appeals.
Mr. Ranjit Kumar, learned counsel apapearing for the appellant in C.A. B
3190 of 1999 contended with force that the earlier Full Bench in Golakh
Chandra Mohanty 's case (supra) having considered the relevant provisions
of the Act, Regulation and Rules framed thereunder and having issued Five
directions which were re- affirmed by the Second Fu II Bench judgment and
those judgments not being assailed by the State or any other aggrieved party, C
benefit accrued to the persons pursuant to the said judgment cannot be taken
away by the subsequent Special Bench judgment which is being impugned
in these appeals. He fu1iher contended that the provisions of the Orissa
Education Code having continued to remain in force so far as private schools
are concerned, and there being no requirement under the Orissa Education
Act, 1969, or the Recruitment Rules framed thereunder of the year 1974 that D
the Headmaster must be a trained graduate with 7 years of teaching experience
as a trained graduate, the headmasters of private schools later on cannot be
deprived of that right when the school becomes aided school or the
government school. This judgment of the Special Bench on that score,
therefore, cannot be sustained. The learned counsel furthef urged that the E
expression "approval" in second direction of Go/akh Chandra Mohanty 's
case (supra) must mean approval of Inspector of schools and consequently
wherever the appointment as Headmaster has been approved by the Inspector
of School until the impugned Special Bench Judgment those Headmasters
cannot be discontinued of their right to continue as Headmaster and getting
the pay scale attached to Headmaster and the impugned judgment must be F
held to be only prospective in nature.
Mr. A.K. Pradhan, the learned counsel appearing in other Civil Appeal
reiterated the contentions raised by Mr. Ranjit Kumar and further added that
there was no bar for direct recruitment for the post of Headmaster so long G
as the schools were neither aided nor government and to those category of
employees, the provisions of Recruitment Rules will have no application
inasmuch as the Recruitment Rules of 1974 apply to service conditions of the
Aided Educational Institutions. Consequently those employees, right to get
the scale of pay attached to Headmaster c¥nnot be said to have been taken
away by the impugned judgment. He had also urged that in view of the terms H
92 SUPREME COURT REPORTS [2001) t S.C.R.
A of reference "in the batch of cases it was not open for the Special Bench to
re- examine the entire matter afresh even though the State or any other person
B
had not challenged the Full Bench Judgement in Gofakh Chandra Mohanty 's
case (supra) as well as the subsequent Full Bench decision re-affirming the
same.
Mr. J.R. Das, the learned counsel appearing for the State of Orissa, Mr.
I
..
P.N. Mishra, learned senior counsel appearing for some of the interveners and
Mr. Sanyal, learned senior counsel appearing for another set of interveners
on the other hand contended. that the latter Full Bench while heJring the
batch of cases having felt it necessary to re-examine the correctness of the
C observations made in the Gofakh Chandra Mvhanty '.s case (supra) and for
that purpose having constituted a larger Bench of 5 Judges, the contention
that it had no jurisdiction to go into the matter is wholly unsustainable.
According to Mr. J.R. Das the expression approval in the direction no. 2 in
Gofakh Chandra Mohanty 's case (supra) must mean approval contemplated
under Rule 8(2)(b) of the Recruitment Rules of 1974 and consequently any
D approval of any illegal appointment not by the Competent Authority or
somebody else would not amount to the approval. It was also urged that the
provisions contained in Board of Secondary Education and the Regulations
framed thereunder, the Orissa Education Act and the Recruitment Rules of
1974 laid down the conditions of services of the Aided Educational Institution
E being complimentary to one another and the Regulation itself having provided
the minimum qualification for the post of Headmaster as trained graduate and
7 years teaching experience it would not be permissible for a Court to hold
otherwise, and therefore, the Special Bench rightly took up the matter and
removed the anomalies. Even on the question of adjustment of equity or
equitable consideration this contention that the minimum qualification
F prescribed under the statutory provision cannot be dispensed with by the
judgment of Court and as such the Special Bench rightly held the so called
approval, if any, of the Inspector of Schools is null and void.
Having examined the rival contentions and on a thorough scrutiny of
G two earlier Full Bench decisions as well as the impugned judgment of the
Special Bench we are of the considered opinion that the Special Bench rightly
thought it appropriate to reconsider the entire matter afresh and re-determine
the issues involved in the light of the relevant provisions of the Act, Rules
and Regulations after hearing at length on all issues and there was no
infirmity on that score even though the point of reference was of a limited
H nature. Courts exist to interpret the law and while examining the provisions
P_M_ DASH v_ STATE [PATTANAIK,J.) 93
of any Act, Rule or Regulation, if it is felt thai the earlier decision on the A
question is not clear on any particular issue or has created confusion in
resolving the disputes or has caused hardship to a group of people, it would
be the duty of the court to re-examine the matter after giving opportunity to
all parties concerned and by such process question of taking away anybodys
vested right does not arise. In the case in hand it is not a particular writ or B
order that had been issued in favour of any individual is sought to be nullified
by the subsequent Special Bench decision. On the other hand the erroneous
conclusion of the relevant provisions of the Act, Regulation and Rules are
sought to be corrected and we see no infirmity in th is approach of the Special
Bench. That apart, though point of reference may be of a limited nature but
in answering the same if the Court feels that it would be in the interest of C
justice to constitute a larger Bench and examine the correctness of any earlier
conclusion which might have been made on an erroneous interpretation of
any provision, then there would be no fetter for adopting that procedure. In
this view of the matter we see no infirmity with the approach of the Special
Bench in re-examining the issues afresh in the light of the relevant provisions
of the Act, Rules and Regulations. We have also carefully examined the D
conclusions of the impugned judgment of the Special Bench and we are
unable to persuade ourselves to agree with the submission of Mr. Ranjit
Kumar that the said conclusions are either erroneous on interpretation of
relevant provisions or in any way intended to take away the rights of any
persons who have got the benefit of the earlier Full Bench decision. It is not E
disputed that with effect from 29.5. I977 Regulation I 7 in the Board of Secondary
Education has been brought into force which makes it obligatory for every
institution to have a Headmaster who must be a trained graduate and must
have 7 years of teaching experience as a trained graduate teacher. If subsequent
- --,._ to 29.5.1977 any appointment has been made to the post of Head Master
contrary to the aforesaid provisions of the Regulation then the said F
appointment would be invalid appointment and would not confer any right
on the appointee. The expression approval used in the second direction in
Golakh Chandra Mohanty 's case is referable to the approval contemplated
under Rule 8(2)(b) of the Recruitment Rule and, therefore, if there has been
an approval by the Director then in such a case the appointment made after G
the prior approval would not be invalidated. In our considered opinion the
·-t conclusion of the Special Bench that an approval of the Inspector is no
approval in the eye of law is the correct position, and as such, does not
require any interference by this Court. We would further make it clear that a
person who has been appointed as Headmaster incharge cannot claim any
right on the basis of that appointment even if the same might have been H
94 SUPREME COURT REPORTS (200 I] I S.C.R.
·A approved by any Competent Educational Authority. The Incharge Headmaster
-F
-
is not the same as the Headmaster of the school and it merely entitles a
person to remain incharge and discharge the duties of a Headmaster. In this
view of the. matter where the appointment itself has been to the post of
Headmaster as in-charge, and such appointment had been approved, obviously
B the said appointee cannot claim to be continued as Headmaster to be entitled
to get the scale of pay attached to the post of Headmaster. The Special Bench
in the impugned judgment has correctly analysed the different provisions of
the Rules and Regulations and have rightly come to the finding on the
directions 2. 3, 4 and 5 of the earlier Full Bench decision in Golakh Chandra
Mohan!)' 's case.
c In the aforesaid premises. we do not see any infinnity with the co11clusiori
arrived at by the Special Bench requiring interferenct; .by this Court. The
appeals accordingly fail and are dismi~sed .. ·
v.s.s. Appeals dismissed
+
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