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2002 DIGILAW 93 (ORI)

STATE OF ORISSA v. ASHOK KUMAR ROUT

2002-02-13

P.K.MISRA, R.K.PATRA

body2002
JUDGMENT : R.K. Patra, J. - This review filed on behalf of the State is directed against the order dated 26.7.1996 made in writ petition bearing O.J.C. No. 3899 of 1995 which was filed by the opposite party. 2. The opposite party filed the aforesaid writ petition (O.J.C. No. 3899 of 1995) praying for quashing of the order dated 8.7.1994 of the Director, Higher Education, Orissa. refusing approval of his appointment of Lecturer in English on the ground that he was deficient in his qualification for having secured only 27.12 per cent of marks in the M.A.E. Examination. 3. A Bench of this Court issued rule on 6.7.1995. Despite service of notice on the State and its officials, no counter was filed. Consequently on 26.7.1996 after hearing the counsel for the opposite party and the Addl. Government Advocate for the State, the writ petition was allowed by directing the State and its officials to approve his appointment as per the proposal submitted by the Governing Body and release grant-in-aid consisting of the salary components within six months from the date of receipt of the order, In allowing opposite party's writ petition, this Court relied upon earlier judgments of this Court in Lakshmikant Padhi v. State of Orissa O.J.C No. 2255 of 1989 disposed of on 5.2.1992, Pranay Kumar Mohapatra v. State O.J.C. No. 1519 Of 1994 disposed of on 27.3.1995 and Bibhuti Bhusan Das v. State of Orissa O.J.C. No. 6475 of 1995 disposed of on 9.5.1996. In the cases, referred to above, this Court had taken the view that merely because the concerned Lecturers had got marks less than the required percentage, their appointments were not wiped out and hence they could not be deprived of the grant-in-aid and, accordingly, directed the concerned authorities to release grant-in-aid consisting of salary components in their favour as per the Grant-in-aid scheme. 4. In the review petition, it has been contended that opposite party was not entitled to the aforesaid relief inasmuch as his writ petition was disposed of without any counter being filed by the State and the ratio of the cases relied on had no application. 5. Opposite party filed counter affidavit to the review petition. He has stated that he joined Laxmibarah College. Ayatpur as lecturer in English oh 13.7.1981 and the college became eligible to receive minimum grant-in-aid with effect from 1.6.1988. 5. Opposite party filed counter affidavit to the review petition. He has stated that he joined Laxmibarah College. Ayatpur as lecturer in English oh 13.7.1981 and the college became eligible to receive minimum grant-in-aid with effect from 1.6.1988. He has also stated that in the meantime he improved his percentage of marks by repeating his M.A. Examination in 1989 from Utkal University and secured 48.6 per cent of marks and thus made good the deficiency. He has enclosed the Government order No. 50892/EYS. dated 27.11.1986 which provided, inter alia, that under qualified teachers appointed in non-Government college by the concerned managements before the college became aided may be made eligible to receive grant-in-aid notwithstanding their under-qualification provided that they were appointed on or prior to 31.3.1982 subject to the conditions that the posts held by them otherwise qualify for release of grant-in-aid. This was followed by Anr. Government order in letter No. 34373/EYS. dated 5.8.1989 which declared that under qualified teacher appointed in non-Government colleges by the concerned management before the college became aided may be made eligible to receive grant-in-aid notwithstanding their under qualification provided that they were appointed during the period from 1.4.1982 to 31.12.1984. Thereafter Government issued Anr. order contained in letter No. 27311 dated 19.6.1989 from which it appears that one Sudhakar Mohapatra, Lecturer in History, was allowed grant-in-aid although he had got below 48 per cent of marks in his Master's Degree examination. The opposite party has further stated in his counter affidavit to this review petition that earlier he filed O.J.C. No. 1860 of 1992 challenging the inaction of the State Government in approving his appointment and releasing grant-in-aid and the said writ petition was allowed on 30.1.1992 in his favour. Since no steps were taken in implement the Court's order, he had to file contempt petition bearing number Original Criminal Misc. Case No. 124 of 1994 and on an erroneous submission made by the State in the counter affidavit, the rule was discharged holding that the order had been complied with. But as a matter of fact, the order had not been complied with. Since the order was not complied with, the opp. party had to file O.J.C. No. 3899 of 1995 out of which this review arises. 6. But as a matter of fact, the order had not been complied with. Since the order was not complied with, the opp. party had to file O.J.C. No. 3899 of 1995 out of which this review arises. 6. There is no dispute that against the order passed by this Court in Laxmikanta Padhl's case (supra), the State filed SLP in the Hon'ble Supreme Court which was dismissed on the ground of limitation. 7. Be that as it may, the Government orders dated 27.11.1986, 5.8.1989 and 19.6.1989, referred to above, unequivocally provide that under qualified teachers appointed in non-Government college on or prior to 31.3.1982 are eligible to receive grant-in-aid. Admittedly, the opposite party being an appointee prior to the cut off date 31.3.1982 (he having joined service on 13.7.1981) is eligible to receive grant-in-aid despite the fact that he had initially secured 47.12 per cent (later improved to 48.6 per cent in the year 1989) in view of the aforesaid Government orders. We may, in this connection, profitably refer to a judgment of the Supreme Court in State of Orissa and another Vs. Damodar Nayak and another. In that case their Lordships have referred to a clarification issued by the State Government on 5.1.1987 which provided that under qualified lecturers having minimum second class, i.e. 48 per cent or above and below 54 per cent of marks in P.G. examination and appointed on or after 1.8.1977 in recognised non-government colleges would be eligible to receive grant-in-aid. In that case their Lordships have ruled that the lecturer would be entitled to receive payment of salary under grant-in-aid scheme from the date of acquiring such eligibility and not from the date of initial appointment. In view of the aforesaid, he would be entitled to receive grant-in-aid from the date of acquiring the required percentage of marks, i.e. 48 per cent. 8. In view of the fact that the opposite party has improved his percentage of marks in the year 1989 by securing 48.6 per cent, he cannot be denied the benefit of grant-in-aid from the year 1989 in view of the judgment of the Supreme Court in the case of Damodar Nayak (supra). 9. 8. In view of the fact that the opposite party has improved his percentage of marks in the year 1989 by securing 48.6 per cent, he cannot be denied the benefit of grant-in-aid from the year 1989 in view of the judgment of the Supreme Court in the case of Damodar Nayak (supra). 9. For the reasons aforesaid, we modify our order dated 26.7.1996 passed, in OJC No. 3899 of 1995 and direct the State and its officials to approve the appointment of the opposite party with effect from the date he improved his percentage of marks in the year 1989 and release grant-in-aid consisting of salary component under the grant-in-aid scheme within four months of receipt of this order. The review is allowed in part. P.K. Misra, J. 10. I agree.