JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioner in W.P.(C) No. 4828 of 2009, the Governing Body of Jambeswar Mahavidyalaya, Garasang in the district of Balasore has filed this application challenging the Office Order No. 5711 dated 12.02.2009 passed in appeal by the Director, Higher Education, Odisha, Annexure-1 declaring the termination of services of opposite party no. 2 as Lecturer in 'Oriya' void and directing the Secretary of the Governing Body to take back him into service and regularize the breakage period of service. The very same order has been challenged by one Rama Chandra Padi in W.P.(C) No. 604 of 2012, who has been appointed as Lecturer in 'Oriya' against the termination vacancy of opposite party no. 2. Both the writ petitions having arisen out of same cause of action and the same appellate order were heard together and are disposed of by this common judgment. 2. The short facts of the case, in hand, are that Jambeswar Mahavidyalaya, Garasang, hereinafter to be referred to as "the college" is a recognized unaided educational institution. The said institution is not put to the grant-in-aid fold of the State Government and therefore, comes under the provisions of section 3(p) of the Orissa Education Act. However the provisions of the Orissa Education Act and the Rules made thereunder are applicable to the said institution and to its employees. The college imparts curriculum in Arts and Science faculties of +2 courses as has been provided under the Council of Higher Secondary Education Orissa. The institute is affiliated to the Council of Higher Secondary Education Orissa and conducts the council examination of the eligible pupils of the institution as per the courses of studies and curriculum prescribed and provided by the council. The State Government extended its recognition in favour of the institution having optional subjects, such as Political Science, History, Economics, Logic, Sanskrit and Education besides compulsory subjects such as English and MIL (Oriya). So far as optional subjects are concerned, except Sanskrit and Education for all other optional subjects the college was permitted to have 128 seats and for Sanskrit and Education, 64 seats. For compulsory subjects such as English, MIL (Oriya) and Hindi 128 seats were permitted for each such subject. The Council of Higher Secondary Education, Orissa also extended such sanction strength in favour of the institution. For compulsory subjects such as English, MIL (Oriya) and Hindi 128 seats were permitted for each such subject. The Council of Higher Secondary Education, Orissa also extended such sanction strength in favour of the institution. From this it is evident that Oriya subject has been sanctioned by the educational authorities as well as by the Council. In the Science Stream also MIL (Oriya)/Hindi were sanctioned having total 128 seats for both. 3. In respect of one of its compulsory subject, namely, Oriya, Sri Krushna Chandra Jena-opposite party no. 2 was appointed as Lecturer vide Governing Body Resolution No. 18 dated 11.3.1995 and accordingly the Secretary of Governing Body issued necessary appointment letter on 13.03.1995 pursuant to which, he joined on 28.03.1995. As per the Orissa Higher Secondary Education Regulations, 1982, Appendix-I, under Chapter-6, the teaching staff of the college should have at least 2nd class Master's Degree in the concerned subject with a minimum of 54 percent marks. Opposite party no. 2 having secured 52 percent marks in M.A. in Oriya, the appointment order was issued with a condition that he would improve his percentage of marks to 54 percent. He having not improved his standard within three years, as per the previous resolution dated 31.12.1999, it was decided in the Governing Body Meeting to issue show cause notice to opposite party no. 2 for termination of his services and accordingly on 14.1.2000 show cause notice was issued to him which he refused to accept as was reported by the process server vide his report dated 13.01.2000. In addition to the lack of minimum percentage of marks, opposite party no. 2 remained unauthorizedly absent from the college since 11.3.2000. As there was gross dislocation in academic curriculum, another show cause notice was issued to him on 27.3.2000 which also he refused to accept. Therefore, the Governing Body passed resolution to take disciplinary action against him, vide resolution dated 4.2.2001, and consequent upon that the termination order was passed on 7.2.2001. Opposite party no. 2 was involved in the local politics and also contested for the seat of Sarpanch of Garasang Grampanchayat in the years 1997 and 2002 and therefore the Governing Body terminated his services. Opposite party no. 2 was involved in the local politics and also contested for the seat of Sarpanch of Garasang Grampanchayat in the years 1997 and 2002 and therefore the Governing Body terminated his services. In the meantime, on plea of Governing Body not permitting O.P. No. 2 to discharge his duty due to his long absence, he preferred an appeal before the Director, Higher Education on 3.4.2000 which lay pending undisposed of. Therefore opposite party no. 2 filed a writ petition before this Court which was registered as W.P.(C) No. 9568 of 2007. This Court disposed of the said writ petition vide order dated 25.2.2008 directing the Director to dispose of the appeal within a period of two months from the date of receipt of the order. The said order of this Court was received at the Directorate on 13.03.2008 and upon hearing the parties, the impugned order dated 12.02.2009, Annexure-1, was passed stating that the Governing Body had not followed the appropriate procedure of termination as laid down in the Orissa Education Act, 1969 and the Rules framed thereunder and also held that opposite party no. 2 had secured the required percentage marks as per 1991 Rules of Govt. of Orissa. Therefore there was no point on the part of the Governing Body to arbitrarily terminate his services which was void in the eye of law and therefore directed the Governing Body to take back opposite party no. 2 into service as Lecturer in Oriya forthwith and regularize the breakage period of his service. Hence, this writ petition. 4. Mr. P.K. Rath, learned counsel for the petitioner-Governing Body strenuously urged that the action taken is well within the provisions of law the principles of natural justice having been complied with while terminating the services of the opposite party no. 2. He emphatically submitted that once a conditional appointment was given to opposite party no. 2 for securing requisites percentage of marks and he having not improved the percentage of his marks making him eligible to hold the post of Lecturer in Oriya, he is not eligible to continue in the post. More so, due to unauthorized absence for years together, taking him back in service in the college would be detrimental to the interest of the institution as well as the students at large. More so, due to unauthorized absence for years together, taking him back in service in the college would be detrimental to the interest of the institution as well as the students at large. Therefore, no illegality or irregularity has been committed by the Governing Body in terminating the services of opposite party no. 2. The reason assigned by the Director is based on surmises and conjectures and therefore interference of this Court has been sought. In order to substantiate his contention, Mr. Rath, learned counsel for the petitioner relied upon the decisions in the cases B. Padma Reddy v. State of Orissa and others, 2006 (Supp.-II) OLR 842, J.S. Yadav v. State of U.P., (2011) 4 Supreme 546 and State of Orissa and another v. Mamata Mohanty, 2011 (1) OJR 355. 5. Mr. A.K. Mishra, learned Addl. Govt. Advocate appearing for the State vehemently argued and submitted that the order passed by the Director is wholly justified as there was non-compliance with the principles of natural justice and the impugned order may not be interfered with by this Court and seeks dismissal of the writ petition. 6. Mr. Biplab Mohanty, learned counsel for opposite party no. 2 referring to the counter affidavit submitted that opposite party no. 2 had passed M.A. in Oriya securing 52.7% marks. By the time opposite party no. 2 was appointed as Lecturer in the College, the Orissa Education Service (Higher Secondary Branch) Method of Recruitment and Condition of Service Rules, 1991 was in vogue which in its Chapter-2, Para-4(d) provided the qualifying mark in Master Degree for appointment as Lecturer in a college being 48%. Opposite party no. 2 having secured 52.7% marks was therefore quite eligible to be appointed as the Lecturer in Oriya and he was appointed as Lecturer in Oriya by the Governing Body of the College on 13.03.1995. He joined in the post on 28.03.1995 following due procedure of law. It is stated that he was obstructed physically on 22.03.2000 from entering into the college premises by the Secretary of the Governing Body. He joined in the post on 28.03.1995 following due procedure of law. It is stated that he was obstructed physically on 22.03.2000 from entering into the college premises by the Secretary of the Governing Body. He was restrained for discharging duty and thereafter his services were terminated and as such that termination itself amounted to non-compliance with the principles of natural justice and as such though acquired the requisite qualification to hold the post his services were terminated wrongly holding that he had not secured the requisite percentage of marks to hold the post. 7. In the above backdrop, it is to be considered as to whether:- i) the eligibility for appointment as a Lecturer in a private college at the relevant point of time during 1995 was acquiring 55% or 48% in Master Degree Examination in the concerned subject; ii) the Director was correct in law in observing while passing the impugned order, Annexure-1, that a Lecturer in a private college was not required to have 54% of mark in Post Graduation; iii) the decision of the Governing Body terminating the services of opposite party no. 2 could be set aside by referring to one of the charges while the opposite party no. 2 was responsible for various charges of misconduct, such as, unauthorized absence from duty for a quite long period; contesting election for Sarpanch without any prior permission of the Governing Body and having joined the appointment with condition to acquire 55% in Master Degree Examination; non-compliance thereof entailed termination of his service. iv) the Director could pass an order without noticing the incumbent appointed against the termination vacancy who might be affected by any order that may be passed by him, in violation of the principles of natural justice. 8. While considering question no. 1 with regard to eligibility for appointment of a Lecturer in private college, it is to be examined with regard to applicability of Orissa Education Service (Higher Secondary Branch) Method of Recruitment and Condition of Service Rules, 1991. Under Rule-2(1)(d), 'College' has been defined as an educational institution imparting instructions in higher general education leading to any degree conferred by any of the Universities established under the Orissa Universities Act, 1989. Under Rule-2(1)(d), 'College' has been defined as an educational institution imparting instructions in higher general education leading to any degree conferred by any of the Universities established under the Orissa Universities Act, 1989. Rule-2(1) (h) defines "Higher Secondary School' means the educational institution imparting teaching of Higher Secondary courses framed by the Council of Higher Secondary Education, Orissa either having independent existence or constituting a separate entity called the "Higher Secondary wing" of a College or an Autonomous College or a High School. Rule-2(1)(i) deals with "Regular Appointment" and means for appointment of Junior Lecturers by the competent authorities on the recommendation of the Orissa Public Service Commission or the appointment of Junior Lecturers regularized from a particular date by the orders of the Government. Rule-2(1)(j) defines "Service" and means the Orissa Education Service (Higher Secondary Branch). As per the provisions contained in Sub-Rule-(1) (a) of Rule-3, the Orissa Education Service (Higher Secondary) Class-II shall consist the posts of Junior Lecturers. Under Sub-Rule (1) (d) of Rule-3 the pay and emoluments attached to the posts of Junior Lecturers and Principals of Higher Secondary Schools shall be such as may be determined by the Government from time to time. Under Rule-4(1), method of recruitment to the post of Junior lecturers has been defined that recruitment to the posts of Junior Lecturers shall be made directly through the Orissa Public Service Commission by open advertisement. Sub-Rule 2(d) of Rule-4 clearly states that a Junior Lecturer should posses a Masters Degree in the concerned subject from a recognized University with at least 48% of marks or its equivalent grade and a consistently good academic record. Rule-8 deals with eligibility criteria for promotion. 9. In view of the above statutory provisions, it is stated that the 1991 Rules are applicable in case of a Higher Secondary School where appointment has been regulated on the recommendation of the Public Service Commission and a person make application for such appointment is required to have secured 48% marks in Master Degree Examination. In that view of the matter, the 1991 Rules were not applicable in case of opposite party no. 2 and the said Rules were applicable for appointment of Junior Lecturer in a Government College. On scrutiny of the said 1991 Rules, nothing is made available to hold that the same were applicable to un-aided private colleges like that of the petitioner institution. 2 and the said Rules were applicable for appointment of Junior Lecturer in a Government College. On scrutiny of the said 1991 Rules, nothing is made available to hold that the same were applicable to un-aided private colleges like that of the petitioner institution. On the contrary, Orissa Higher Secondary Education Regulation, 1982 is applicable in the present context. On scrutiny of 1982 Rules, it appears that post of Junior Lecturer are available only in a Higher Secondary School or in the institutions having higher secondary wing. "Higher Secondary School" has been defined under Section 3(j) of the Orissa Education Act to mean inter alia an educational institution imparting instructions in a higher secondary courses as defined in the Orissa Higher Secondary Education Act, 1982 having Standards or Classes VIII, IX and X attached. The petitioner's institution does not come within the same ambit nor was opposite party no. 2 ever appointed as a Junior Lecturer and the grade, status and the scale of pay of a Junior Lecturer vis-à-vis Lecturer are different. The 1982 Rules deals with three categories of institution, namely, College, Higher Secondary Schools and Junior College. As it appears from Annexure-1 of W.P.(C) No. 604 of 2012 the petitioner's institution got temporary recognition as a Junior College as per provision of Sub-section 9 of Section-6 of the Orissa Education Act, 1969. Once it is a Junior College, the provision of Appendix-I under Regulation-90 of the 1982 Regulations were applicable to it. Clause-6 of Appendix-I under Regulation-90 deals with "teaching staff". Sub-clause (a) of Clause-6 states that the teachers to be appointed in Junior colleges/Higher Secondary Schools to have at least 2nd class Master's Degree in the subject concerned with a minimum of 54 percentage of marks. Therefore, the minimum required percentage of marks under 1982 Regulation has been fixed at 54%. As 1991 Regulation was not applicable in case of opposite party no. 2 and instead 1982 Regulation was applicable, that required opposite party no. 2 to have secured 54% percentage of marks. 10. Admittedly, while issuing appointment order to opposite party no. 2, he did not possess the eligibility therefor securing 54% marks in Oriya subject, rather he had secured 52.7% of marks. 2 and instead 1982 Regulation was applicable, that required opposite party no. 2 to have secured 54% percentage of marks. 10. Admittedly, while issuing appointment order to opposite party no. 2, he did not possess the eligibility therefor securing 54% marks in Oriya subject, rather he had secured 52.7% of marks. Therefore, he had been issued conditional appointment order to improve his standard and accordingly opportunity had been given to him for a period of three years to improve the percentage of his marks in Master Degree Examination. He having failed to acquire the minimum required percentage of marks, the Governing Body had taken action, following the principles of natural justice by issuing show cause notices, in terminating his service. 11. Such a question came up for consideration before the Apex Court in Mamata Mohanty case (supra) and the Apex Court categorically held that unless a person fulfills the minimum eligibility criteria, he has no right to be appointed against a post. Applying the said ratio in the present case, opportunity had been given to opposite party no. 2, but he having not secured the minimum percentage of qualifying marks, the petitioner rightly took steps affording opportunity of hearing to him. Though show cause notice was issued, opposite party no. 2 avoided to receive the same which ipso facto indicates that opportunity was given to opposite party no. 2, but he did not avail of the same and it cannot therefore be said that there was non-compliance with principles of natural justice. More so, with eyes wide open, opposite party no. 2 had joined the service with condition that he had to improve his minimum required percentage of marks within a period of three years while continuing in serving, but he having not fulfilled the condition of appointment, the action taken by the Management cannot be found fault with. In addition to the same, while continuing in service, opposite party no. 2 contested the local election during the years 1997 and 2002 by filing nomination for the Office of Sarpanch of a Gram Panchayat which itself indicates that he had no devotion to his duty and rather he wanted to work as a political person by contesting election for the Office of a Sarpanch. 2 contested the local election during the years 1997 and 2002 by filing nomination for the Office of Sarpanch of a Gram Panchayat which itself indicates that he had no devotion to his duty and rather he wanted to work as a political person by contesting election for the Office of a Sarpanch. Though question of unauthorized absence from duty was raised before the Director while setting aside the impugned order, there was absolutely no discussion about the unauthorized absence of the petitioner from the college and without considering the same in proper perspective, the impugned order has been passed which clearly indicates that there was non-application of mind by the Director. The Director having failed to consider the aspect of non-acquisition of qualifying marks i.e. 54% by opposite party no. 2, the impugned order suffers from gross material irregularity though the same had been raised before him. Opposite party no. 2 having not acquired the minimum qualifying percentage of marks, his services were terminated following due procedure of law in compliance with the principles of natural justice and opposite party no. 3 was appointed against the termination vacancy as Lecturer in Oriya against the first post. The Director while considering the case of opposite party no. 2, failed to take into consideration the fact that opposite party no. 3, who was to be aggrieved had not been impleaded as a party to the appeal and no opportunity of hearing was given to him. In the event the impugned order will be given effect, opposite party no. 3 will have to be removed from the service. Without giving him opportunity, the impugned order was passed by the Director which was opposed to law. Therefore the same is liable to be quashed. Since action taken against the opposite party no. 2 by following due process of law i.e. issuing show cause notice, but the same was refused by him. It is stated that notice had been made sufficient and follow up action was taken by the petitioner-Management. For any reason, if this Court will hold that no notice had been given to opposite party no. 2, then it will relegate the matter to the stage of issuing notices of show cause and consequently action has to be taken following the principles of natural justice. 12. For any reason, if this Court will hold that no notice had been given to opposite party no. 2, then it will relegate the matter to the stage of issuing notices of show cause and consequently action has to be taken following the principles of natural justice. 12. In B. Padma Reddy case (supra), this Court held that whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect but the proceedings are not terminated. It is further clarified that the reasonable opportunity is not confined only to the reply given to the show cause or the evidence adduced in its support. But it also includes the consideration of the defence taken by a person while taking a decision by the decision making authority. Therefore, while passing the impugned order the learned Director did not consider the defence taken by the petitioner and passed the impugned order in a haste. 13. Considering the materials available on record and the ratio of the decision of the Apex Court in J.S. Yadav case (supra), it appears that though opportunity was given to opposite party no. 2, he failed to avail of the same. Due to non-fulfillment of the condition stipulated in the order of appointment, as a consequence action, his services have been terminated. Therefore, the plea of non-compliance with the principles of natural justice is not available to be raised in the present context. 14. In the aforesaid facts and circumstances, the impugned order dated 12.02.2009 passed by the Director vide Annexure-1 setting aside the order of termination services of opposite party no. 2 is void in law and his consequential direction to take opposite party no. 2 back into service and regularize the breakage period of his service cannot be sustained in law. Accordingly, the said order dated 12.02.2009, Annexure-1 is quashed. Both the writ petitions are allowed. No order as to cost.