B.K. MOHAPATRA versus STATE OF ORISSA

Citation: [1988] 1 S.C.R. 650 · Decided: 28-10-1987 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Disposed off

Judgment (excerpt)

A 
B.K. MOHAPATRA 
v. 
STATE OF ORISSA 
OCTOBER 28, 1987 
B 
[E.S. VENKATARAMIAH AND K.N. SINGH, JJ. 
c 
Teacher's service matter-Rationalisation scheme for integration 
of services of teachers in different types of schools-Dispute regarding 
terms thereof relating to seniority and contributory Provident Fund. Act 
of State. 
A nnmber of the princely States, situated within the territories of 
the present State of Orissa, were merged with effect from January 1, 
1948, with the Province of Orissa as it then existed. On such merger, 
the High Schools within the said princely States came under the juris-
diction of the Province of Orissa. The Schools belonged to two 
D categories--' A' type schools which were full-fledged High schools send-
ing candidates for the Matriculation examination and 'B' type schools 
which were incomplete schools, not sending candidates for the Matricu· 
lation examination. On the said schools being taken over by the Pro-
vince of Orissa .the teachers of the schools came under the control of the 
Government of Orissa. The Orissa Government issued a letter dated 
E 5.1.1949 to the Director of Public Instruction in connection with the 
subject of regulation of the services of the teachers. 
The appellant was an assistant teacher in one of the 'B' type 
schools on June 15, 1953, after the commencement of the Constitution 
of India, and continued to work as such in the 'B' type school till August 
F 
1, 1964, when the State Government of Orissa published a rationalisa· 
tion scheme for integrating the services of the teachers in the different 
types of High Schools in the State. Aggrieved by the terms of the 
Scheme relating to (i) the seniority of the teachers working in the 'B' 
type High Schools and (ii). The contributory Provident Fund, the appel-
lant filed a writ petition in the High Court. The High Court upheld the 
G validity of the Scheme and dismissed the Petition, while recommending, 
however, to the Government to modify the terms relating to the Provi· 
dent Fund Scheme applicable to the teachers of 'B' type High Schools. 
The appellant then moved this Court by special leave against the deci-
sion of the High Court. 
H 
Disposing of the appeal, the Court, 
650 
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l 
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B.K. MOHAPATRA v. STATE OF ORISSA 
651 
HELD: It is true that till the commencement of the Constitution 
of India, the position of the 'B' type High Schools and the teachers 
working in them was being requlated in accordance with the terms 
contained in the order dated 5.1.1949. But on the commencement of the 
Constitution of India, all the territories which immediately before the 
commencement of the Constitution were either comprised in the 
Province of Orissa or were being administrated as if they formed part 
of that Province, became and constituted the State of Orissa. The State 
Government was under obligation to discharge its executive functions 
with respect to education in respect of all the schools including 'B' type 
High Schools. A High school which once belonged to a princely state 
became a Government High School with effect from the commencement 
of the Constitution and it could not be anything else and the teachers 
working therein became teachers holding posts under the Government. 
It is well-settled that the doctrine of an "act of State" cannot be pleaded 
by a State as a defence against its own citizens. An 'act of State' is an 
act done in relation to a foreigner by a Sovereign power of a country. 
Such an act cannot be questioned in any court of law, but such a 
situation would not arise between the State Government and a 
citizen like the appellant who joined service after the commencement 
of the Constitution. The High Court was in error in upholding the 
plea that the order dated 5.1.1949 could not be questioned by the 
appellant who had joined service after the commencement of the 
Constitution. [657 A-E, GH; 658A] 
There is also no rational basis for refusing to give the benefit of 
the service rendered by a teacher working in a 'B' type High school 
after January 26, 1950, either for purposes of seniority or for purposes 
of computing the retirement benefits. It may be open to the State . 
Government, while integrating the services of teachers working in diffe-
rent kinds of institutions, to introduce a scheme of rationalisation which 
may have the effect of modifying the conditions of service of different 
groups of government servants. But the Government cannot by a stroke 
of pendeny the 

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