RAJENDRA KUMAR PRADHAN v. STATE OF ORISSA — 1998 DIGILAW 315 (ORI)

JUDGMENT : Susanta Chatterji, J. - The writ petitioner, Rajendra Kumar Pradhan, has asked for the following relief: ".......... issue a Rule Nisi calling upon the opp. Parties to show cause as to why the impugned approval in favour of O.P. No. 4 as Junior Clerk-cum-Typist in Annexure-8 should not be quashed; And as to why opp. parties 1 and 2 should not be directed to approve the petitioner as Junior Clerk-cum-typist and release regular salary from the date of eligibility; And as to why opp. parties 1 and 2 should not be directed to approve the post in question as per 1983 Amendment Regulations; If the opposite parties fail to show cause or sufficient cause the rule be made absolute; And issued any other order/direction deemed fit and proper in the facts and circumstances of the present case......" 2. Annexure-8 to the writ petition is an Office Order No. 2G-63 95(+2):15870/dated 23.3.1996 issued from the office of the Director of Higher Education, Orissa, Bhubaneswar. It transpires from the said Annexure-8 that in terms of paragraphs 9(3), 10(1)(4)(i)(ii) (iii) and 16 (i) of the Grant-in-Aid Order, 1994, approval was accorded provisionally for the appointment of the teaching and non-teaching staff of Anchalika Mahavidyalaya, Jagannath Prasad, Dist. Ganjam. The approval was made to the appointment of Sri Santanu Kumar Swain, Lecturer in English (first post) and to the appointment of Sri Simanchal Panda, Junior Clerk-cum-Typist. This approval of Sri Simanchal Panda by opposite party No. 4 in the present writ petition is being challenged. 3. The case of the petitioner is that he had passed H.S.C. and also type writing course with a speed of 40 words per minute. While working as P.E.T., the Anchalika Mahavidyalaya, Jagannath Prasad made an advertisement dated 25.6.1990 inviting applications for one post of Head Clerk and two posts of Clerk. It would appear from Annexure-3 that after interview Sri Simanchal Panda, opposite party No. 4 was selected for the post of U.D./Head Clerk, and the petitioner was selected as first L.D.Clerk and Sri Madan Majhi was selected as second L.D.Clerk. 4. It is contended that from the date of joining the petitioner was continuously and satisfactorily working as Clerk-cum-typist. The name of the petitioner was recommended for approval on 12.9.1993. 4. It is contended that from the date of joining the petitioner was continuously and satisfactorily working as Clerk-cum-typist. The name of the petitioner was recommended for approval on 12.9.1993. Surprisingly enough instead of approving the appointment of the petitioner against the post of Junior Clerk-cum-Typist, appointment of opposite party No. 4 was approved, who was selected and appointed as Head Clerk and continued as such and was not a candidate for the post of Clerk and was never interviewed and selected as a Clerk, as Junior Clerk-cum-Typist as per order dated 23.3.1996. 5. It is further contended that due to incorporation of Section 7-C in the Orissa Education Act, a new grant-in-aid order was issued in 1995 regulating the payment of grant-in-aid to non-Government Colleges. Due to non-approval of the post of the petitioner, the petitioner was not getting his regular monthly salary: It is placed on record that assuming that the new 1995 yard-stick permitted one Clerk-cum-Typist, the petitioner was entitled to approval as Junior Clerk-cum-Typist and not opposite party No. 4. The impugned order approving opposite party No. 4 as Junior Clerk-cum-Typist was mala fide, arbitrary and violative of Articles 14 and 16 of the Constitution of India. Under the background as stated above, the petitioner has come to the Writ Court seeking the relief. 6. The writ petition is opposed by the contesting opposite parties by filing separate counter affidavits. Opposite party No.4. Simanchal Panda submits, inter alia, that he was serving as Receptionist-cum-Typist and while he was so continuing he applied for the post of U.D.C. (Head Clerk). He participated in the interview and was selected for the post of U.D.C. (Head Clerk). On 7.9.1990 opposite party No. 4 submitted a representation to the Secretary of the Governing Body indicating that the Director of Higher Education was intimated by the Secretary of the Governing Body to approve the order of appointment issued to him by the institution. Since opposite party No. 4 was the senior-most employee he was promoted to the post of Head Clerk/U.D.C. Opposite party No. 4 also had given an undertaking to the effect that he had no objection if his post would be approved as L.D.C.-cum-Typist in future. The Governing Body had assured that proper steps would be taken in future to approve the post on the basis of seniority of opposite party No. 4. The Governing Body had assured that proper steps would be taken in future to approve the post on the basis of seniority of opposite party No. 4. On 8.9.1990 opposite party No. 4 submitted his joining report. The Principal of the College sent particulars of each employee of the Institution for approval and for release of grant-in-aid. While recommending the case of the employees of the College suggestion was given that grant-in-aid might be released on the basis of seniority of teaching and non-teaching staff. 7. It is also placed on record by opposite party No. 4 that in grant-in-aid principle as evolved by the Government before 1995 it was made clear that in an Institution where total strength is 250, the same will have one post of U.D.C., one post of L.D.C. and one post of L.D.Clerk-cum-Typist but in subsequent grant-in-aid principle it was made clear that the College in which total strength is 350, the College will have one of Junior Clerk-cum-Typist. In accordance with such Grant-in-aid principle since opposite party No. 4 was the senior most and had joined earlier in the Institution, taking into consideration his experience he as offered the post of Head Clerk (U.D.C.), but after the offer was made opposite party No. 4 pointed out that his continuance as U.D.C. might create difficulty and as such after obtaining clarification from the Management he joined the Institution and by virtue of the joining earlier in the ministerial cadre he was only entitled to get the grant-in-aid and Government had sanctioned the post of Junior Clerk-cum-Typist in favour of opposite party No. 4. All other allegations of the petitioner have been controverted. 8. A separate counter affidavit has been filed by opposite party No. 3 sworn to by the Secretary of the Governing Body. It is submitted that the College became eligible to receive grant-in-aid as per the Grant-in-aid Order of 1994 and accordingly staff position was submitted for approval of the competent educational authorities for the purpose of payment of salary component. Such payment is to be made with effect from 1.6.1994 on 1/3 basis and from 1.6.1996 on 2/3 basis and from 1.6.1998 as full salary cost. Such payment is to be made with effect from 1.6.1994 on 1/3 basis and from 1.6.1996 on 2/3 basis and from 1.6.1998 as full salary cost. As per the Grant-in-Aid Principle, State Government is to release the salary component of the approved subjects pertaining to first post and so far as the non-teaching staff are concerned to one post of Junior Clerk-CMW-Typist besides leaving some Class IV posts. Since the Government bear the salary component of the post which are within the staffing pattern prescribed in the Grant-in-aid order, the Management used to bear the salary component of the rest of the posts and also the balance of the salary cost minus the salary cost paid by the State Government. Opposite party No. 4 though was appointed by the Governing Body as U.D. Clerk yet for the purpose of salary component his case was sent to the Government in L.D.C.-cum-Typist post as he was the senior-most staff of the Institution. Since opposite party No. 4 the senior-most Ministerial staff he was approved by opposite parties 1 and 2 for the purpose of payment of salary component and accordingly such approval was valid and lawful. The other allegations of the petitioner have been controverted and denied. 9. We have heard Mr. Dora for the petitioner, Mr. A. K. Misra for the opp. party No. 4, Mr. J. K. Rath for opposite party No. 3 and Mr. P. K. Ray, learned Additional Government Advocate for the State authorities. The only dispute is as to the approval and appointment of opposite party No. 4 as Junior Clerk-cum-Typist. As per the affidavits filed by the respective parties, it is made clear and beyond doubt that opposite party No. 4 had been functioning as the Head Clerk. The petitioner was appointed as Junior Clerk-cum-Typist for the first post. A stand has been taken by opposite party No. 3 that O.P. No. 4 being the senior-most ministerial staff was recommended for being approved to obtain the grant-in-aid facility. From the factual aspect, it is not appreciated by this Court. The posts are approved and the incumbents properly selected and working in the relevant post are to be considered. Undisputedly, the petitioner has been appointed as Junior Clerk-cum-Typist at a relevant point of time. From the factual aspect, it is not appreciated by this Court. The posts are approved and the incumbents properly selected and working in the relevant post are to be considered. Undisputedly, the petitioner has been appointed as Junior Clerk-cum-Typist at a relevant point of time. There is no discretion open to the College authorities to create any post beyond eligibility criteria and sanction as per strength of the students and regard being had to the staffing pattern to obtain grant-in-aid to fit in a different person functioning in different post to obtain the relief. If the staffing pattern and the student strength permits approval of one Junior Clerk-cum-Typist the person who was acting as Junior Clerk-cum-Typist at a relevant point of time on the basis of selection and having eligibility criteria cannot be over-looked. The acts done and/or caused to have been done to ignore the case of the petitioner and to facilitate the case of opposite party No. 4 on the basis of seniority to a different post cannot be sustained in law. A different procedure and/or process has been taken by the College authorities to support the case of opposite party No. 4 and approval of opposite parties 1 and 2 to the post of Junior Clerk-cum-Typist in favour of opposite party No. 4 is not found to be lawful. The petitioner's appointment who was admittedly functioning as a Junior Clerk-cum-Typist on a relevant point of time ought to be approved. We find sufficient merit in the case of the petitioner. The order under Annexure-8, so far as opposite party No. 4 is concerned, is set aside. We make it clear that if any other post is created or the staffing pattern permits, the case of opposite party No. 4 can be considered or the State authorities can transfer him to any other College if there is any vacancy as admissible in law. The petitioner is entitled to all the benefits as admissible and available and steps should be taken to approve his appointment as Junior Clerk-cum-Typist within a period of two months from the date of communication of the order and all consequences will follow accordingly. With such observation and direction, we dispose of the writ petition. No costs. D.M. Patnaik, J. 10. I agree.