STATE OF ORISSA AND ORS. versus KHIROD KUMAR NAYAK

Citation: [2009] 2 S.C.R. 971 · Decided: 23-02-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2009) 2 S.C.R. 971 
STATE OF ORISSA AND ORS. 
A 
""i 
V. 
__, 
KHIROD KUMAR NAYAK 
Civil Appeal No. 1158 of 2009 
FEBRUARY 23, 2009 
B 
[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]. 
Orissa Education (Recruitment and Conditions of 
') 
Service of Teachers and Members of the Staff of Aided 
Educational Institutions) Rules, 1974 - Circular No. 28365- c 
EYS dated 8. 7.1981 and Circular no.155000-XVllEP-50!91-
E dated 27. 3. 1992 issued by Government of Orissa, Education 
and Y S. Department - Yardstick for fixation of standard staff 
prescribed in the circulars - Claim for appointment as 'Fourth 
peon' - Held: There is no prescription of a 'fourth peon' in the 
yardstick prescribed - Expression used in the two circulars is D 
'Oaftry' and not 'fourth peon' - Post of Daftry is a promotional 
post and it carried higher scale of pay - High Court erred in 
equating the 'fourth peon' with 'Daftry' and in upholding the 
claim for appointment as 'fourth peon'. 
The claim of respondent no.1 was that he was E 
• 
appointed as 'fourth peon' by the management of an aided 
.... 
educational institution as defined under the Orissa 
{ 
Education Act, 1969. As the State did not approve the 
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appointment, holding the same to be beyond the F 
prescribed yardstick, writ application was filed for 
direction to the concerned ~uthorities to accord approval 
to the appointment. High Court allowed the writ 
application by equating the 'fourth peon' with 'Daftry'. 
In appeal to this Court, appellant-State contended G 
that there was no prescription of a 'fourth peon' in the 
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yardstick prescribed; and that the post of 'Daftry' was a 
.,.. 
promotional post which carried higher scale of pay and 
\ ..., 
so last entrant was not entitled to the post of 'Daftry' . 
971 
H 
972 
SUPREME COURT REPORTS 
[2009] 2 S.C.R. 
A 
Allowing the appeal, the Court 
HELD: 1. Government of Orissa, Education and Y.S. 
Department, issued Circular No. 28365-EYS dated 
8.7.1981 fixing standard staff for the ·non-government 
secondary schools. The position was further clarified by 
B Circular dated 27 .3.1992. A comparison of the two circulars 
shows that under 1981 Circular the requisite roll strength 
was 100, which was changed to 500 subsequently in the 
1992 Circular. The expression used in the two circulars is 
"Da~ry" and not "fourth peon". The High .Court seemed 
C · to have fallen in errc;>r by proceeding on .the basis as if the 
circulars referred to "fourth peon". The post of "Daftry" 
carries higher scale of pay and is a promotional post for 
class IV employees. That being the position, the High Court 
was not justified in directing approval of the writ 
D petitioner's services as "fourth peon". But one significant 
aspect cannot be lost sight of. .. If a school was entitled to 
have a "Daftry", certainly the appointment was to be made 
by promoting one of the three persons i.e. Office Peon, 
Office Attendant and Night Watcher-cum-Sweeper, there 
being no other class IV post in the institution. It is for the 
E 
Managing Committee of the institution to decide who is 
to be promoted and thereafter seek approval· of the 
concerned authorities. That way the claim of the writ 
petitioner could have been considered by the authorities, 
on being appropriately moved by the management. It is 
F 
undisputed that the writ petitioner was appointed by the 
Managing Committee, may be under a misreading of the 
relevant government orders. [Paras 8, 10, 11, 12] [97 4-F; 
974-C; 975-H; 976-A-B; 976-C-E] 
2. The management of the concerned institution shall 
G move the concerned authorities or approval to the 
promotional appointment of a class IV employee, as 
"Daftry". Simultaneously, it can also recommend for 
appointment to the class IV post, in case approval is 
accorded to the recommendation for appointment of 
H "Daftry" on promotion. [Para 13] [976-F] 
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STATE OF ORI SSA AND ORS. V 
973 
KHIROD KUMAR NAYAK 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1158 A 
• 
of 2009 
From the Judgement and Order dated 27.11.1996 of the 
Hon'ble High Court of Orrisa at Cuttack in OJC No. 6857 of 
1996. 
B 
Jana Kalyan Das, for the Appellant. 
B.S. Sharma, M.K. Michael, for the Respondent. 
The Judgement of the Court was delivered by 
DR. ARIJIT PASAYAT, J. 
c 
1. Delay condoned. 
2. Leave granted. 
3. Challenge in this appeal is to the order of a Division D 
"\ 
Bench of the Orissa High Court. Factual background can be 
adumbrated concisely as follows:

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