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2014 DIGILAW 509 (ORI)

Laxmidhar Sahoo v. State of Orissa

2014-08-20

B.K.NAYAK

body2014
Judgment B.K.NAYAK, J. In this writ petition the petitioner prays for quashing of the order dated 28.11.2006 (Annexure-8) passed by the Commissioner-cum-Secretary, Government of Orissa, Higher Education Department-opposite party no.2 rejecting the petitioner’s claim for approval of his promotion to the post of U.D. Clerk (Senior Clerk) with effect from 25.05.1986 and to the post of Head Clerk with effect from 05.07.1987, and for further direction to the opposite parties to approve the petitioner’s promotion to the aforesaid posts with effect from the dates as aforesaid. 2. It is the case of the petitioner that he is a graduate and was appointed as a junior clerk in Sri Sathya Sai College for Women, Bhubaneswar and joined the post on 26.06.1981. His appointment as Junior Clerk has been approved by the Director of Higher Education, Orissa-opposite party no.3 and he has been allowed Grant-in-Aid for the said post with effect from 26.06.1984 as per order under Annexure-1. On the basis of yardstick prescribed by the State Government as per Government Order No.23905/EYS dated 08.07.1977, the governing body of the college-opposite party no.4 promoted the petitioner to the post of Senior Clerk with effect from 25.05.1986, as revealed from the order of the Principal of the college dated 14.03.1988 vide Anenxure-2. Thereafter, as per Governing Body Resolution dated 04.07.1994 (Annexure-9), the petitioner was again promoted to the next higher post of Head Clerk with effect from 05.07.1987 as revealed from the office order dated 05.07.1994 (Annexure-3) of the Principal-cum-Secretary of the College. It is stated that the petitioner has already passed accounts training, which is evident from the order passed by the Principal of Madhusudan Institute of Accounts dated 31.07.1987 (Annexure-4). It is stated that the promotion of the petitioner to the post of Senior Clerk and thereafter to the post of Head Clerk by the Governing Body was as per the yardstick prescribed by the State Government. 3. It is further stated by the petitioner that the State Government issued letter no.39600/H dated 18.08.1992 to the Director, Higher Education, Orissa, Bhubaneswar asking for college wise vacancy position in the higher posts for promotion of non-teaching staff of Non Govt. 3. It is further stated by the petitioner that the State Government issued letter no.39600/H dated 18.08.1992 to the Director, Higher Education, Orissa, Bhubaneswar asking for college wise vacancy position in the higher posts for promotion of non-teaching staff of Non Govt. Aided Colleges along with its detailed financial implication for bringing those promotional posts to the direct payment system and, accordingly, vide Memo dated 13.01.1993 (Annexure-6) of the office of the Director, Higher Education information was called for from the Principals of all Non-Government Aided colleges. In pursuance of such memo and in consonance with the 1994 Grant-in-Aid Order proposal was submitted in connection with the assessment of Grant-in-Aid payable to the eligible teaching and non-teaching staff members by the Principal of the College during the Financial Year 1996-97. After verification of the records of the College, opposite party no.3 found the promotion of the petitioner justified and accordingly recommended to the State Government vide letter dated 03.05.1997 (Annexure-3) for according sanction of expenditure for the purpose of extending the promotional benefits to the petitioner and others. Since no action was taken by the State Government on the recommendation of opposite party no.3, the petitioner filed OJC No.11768 of 2001 before this Court. After hearing both the parties, the said writ petition was disposed of by order dated 19.08.2002, which is as under : “Learned Additional Government Advocate on instructions submits that as and when the cases of persons similarly situated like the petitioner are taken up for consideration, the case of the petitioner also be taken up. We find that this stand adopted by the learned Additional Government Advocate is reasonable in the circumstances. In fact, we have stated that position in some earlier orders. In that view, we close this writ petition recording the submission of the learned Addl. Government Advocate that the case of the petitioner will be considered as and when the cases of persons similarly situated are taken up for consideration.” Even after the disposal of the said writ petition, the State Government did not take any action for which the petitioner submitted representations time and again for consideration of his case. Government Advocate that the case of the petitioner will be considered as and when the cases of persons similarly situated are taken up for consideration.” Even after the disposal of the said writ petition, the State Government did not take any action for which the petitioner submitted representations time and again for consideration of his case. Ultimately by order dated 28.11.2006 (Annexure-8), opposite party no.2 rejected the claim of the petitioner for approval of his promotion to the post of Senior Clerk and Head Clerk on the ground that the Governing Body of the College has not produced the documents and that resolution of the management of the college have been manipulated. 4. It is the submission of the learned counsel for the petitioner that there was no manipulation of the Governing Body Resolution at all and that the petitioner was promoted to the post of Senior Clerk and Head Clerk as per the yardstick and justification and that after verifying the original records and the resolutions the Director, Higher Education recommended to the Government for approval. But without considering such recommendation, opposite party no.2 has passed the impugned order (Annexure-8) rejecting the petitioner’s claim in an arbitrary manner. It is also submitted that without considering the original Governing Body Resolutions and merely referring to some corrections in such resolution, opposite party no.1 has illegally held that the documents have been manipulated. It is the further submission of the petitioner that the observation of opposite party no.2 in the impugned order that Governing Body Resolution dated 20.09.1985 creating the post of Head Clerk in the college has been manipulated, which is the result of non-application of mind by opposite party no.2 inasmuch as no such resolution was passed on 20.09.1985 by the Governing body, but in fact, the resolution has been passed on 25.09.1987 creating the post of Head Clerk and promoting the petitioner to such post with effect from 05.07.1987 as per recommendation of the Principal of the College. It is further submitted that since some corrections appears to have been made in the resolution dated 25.09.1987, the same was signed by the Secretary on 25.09.1987. It is further submitted that since some corrections appears to have been made in the resolution dated 25.09.1987, the same was signed by the Secretary on 25.09.1987. It is also the submission of the petitioner that further observation of opposite party no.2 in the impugned order that the Director, Higher Education should follow Orissa Non-Government Aided Colleges Ministerial Service (Method of Recruitment and Conditions of Services) Rules,1999 for processing promotion cases of ministerial employees of Non-Govt. Aided colleges, shall have no application to the case of the petitioner since the petitioner has already been promoted prior to coming into force of the said 1999 Rules. 5. A counter affidavit has been filed by opposite party no.4, Governing Body of Sri Sathya Sai College through the Principal-in-charge-cum-Secretary of Governing Body. It is stated in the counter affidavit that as per the Governing Body Resolution in its 13th meeting held on 25.05.1986, the petitioner was promoted to the post of Senior Clerk, but in absence of confirmation by the Director of Higher Education, he is working as Junior Clerk till date. With regard to the petitioner’s promotion from Senior Clerk to the post of Head Clerk, it is stated that the 39th Governing Body Resolution dated 04.07.1994 in this regard creates confusion, as it is not clearly stated in Clause(v) in respect of the agenda ‘other matters’. The said resolution has been annexed to the counter as Annexure-B/1. It is also stated that in the 18th Governing Body Resolution dated 24.01.1988, the same promotion to the post of Head Clerk of Sri Sahoo was written in the proceeding, but is not clear. It is also stated that the petitioner has not submitted his original joining letter as Senior Clerk and Head Clerk. Lastly, it is stated that the petitioner was the custodian of all records till 2005. In paragraph-10 of the counter affidavit, it is stated that the petitioner has been working as Junior Clerk from the date of his appointment till today. 6. Lastly, it is stated that the petitioner was the custodian of all records till 2005. In paragraph-10 of the counter affidavit, it is stated that the petitioner has been working as Junior Clerk from the date of his appointment till today. 6. A separate counter affidavit on behalf of opposite party no.3, Director, Higher Education, Orissa, sworn to by the Deputy Director has been filed, wherein it is stated that as per yardstick the college may be eligible for the post of U.D. Clerk or Head Clerk, for which proposal will be sent to Government for creation of post and that without such creation of post by the Government giving promotion by the Governing Body to such post is illegal. For creation of post by the Government proposal has to be submitted by the Governing Body of the College. In the case of the petitioner, Government having not created posts of U.D. Clerk and Head Clerk Governing Body cannot give promotion to him. 7. The petitioner has also filed a rejoinder affidavit, wherein it is stated that as per Government yardstick (Annexure-5) on increase of roll strength the college is entitled for one post of U.D. Clerk and one post of Head Clerk. It is stated that the post of Head Clerk was created by Resolution dated 20.09.1987 and by the said resolution the petitioner was given promotion to the post of Head Clerk with effect from 05.07.1987, but the petitioner having not received the order of promotion approached the Governing Body for issuance of the promotion order and in pursuance of its resolution dated 04.07.1994 the Governing Body recommended and approved the promotion of the petitioner to the post of Head Clerk. Consequently by office order dated 05.07.1994 the petitioner was issued with promotion order (Annexure-3) to the post of Head Clerk. 8. The petitioner has obtained copies of some Resolutions of the Governing Body of Sri Sathya Sai College for Women under R.T.I Act and filed the same as Annexure-10 series with his rejoinder affidavit. The Governing Body Resolution dated 25.05.1986 under Agenda No.4 created certain posts for non-teaching staff including one for Upper Division Clerk (Senior Clerk). Under Agenda No.5 appointments of some staff were approved including promotion of the petitioner as U.D. Clerk with effect from that date, i.e., 25.05.1986. The Governing Body Resolution dated 25.05.1986 under Agenda No.4 created certain posts for non-teaching staff including one for Upper Division Clerk (Senior Clerk). Under Agenda No.5 appointments of some staff were approved including promotion of the petitioner as U.D. Clerk with effect from that date, i.e., 25.05.1986. It is stated in the counter affidavit of the Deputy Director, Higher Education that creation of posts of Senior Clerk and Head Clerk has to be made by the Government on proposal being submitted by the Governing Body of the college. This statement has been made without reference to any Rule or law. On specific query, neither the State Counsel nor the counsel for the petitioner is able to point out any law or Rule to the effect that posts in a Non-Government Aided College are required to be created by the Government. The Orissa Education Amendment Act,1994 inter alia amended Section 7-B of the Orissa Education Act,1969 by substituting sub section(2) of Section 7-B to the following effect : “Every private educational institution shall appoint qualified teachers and non-teaching staff by making selection in accordance with the procedure and criteria prescribed by the State Government.” Sub section (3) of Section 7 of the Orissa Education Act provides that the Governing Body is responsible for the proper management of a private college and shall exercise such powers and perform such functions as may be prescribed. The State Government enacted the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991. The said Rules cannot be said to have application to the claim of the petitioner which relates to the period prior to the rules came into force. Even otherwise, the said rules also did not make any provision for creation of post of Senior Clerk and Head Clerk by the Government in a private aided college. Under Government Letter No.23905 dated 08.07.1977 under Annexure-5 of the erstwhile Education & Youth Services Department addressed to the Director of Public Instructions, Orissa, the Government prescribed yardstick for appointment of ministerial staff of different categories depending upon the roll strength of the college, but no where there is any stipulation therein that the posts of Senior Clerk and Head Clerk are to be created by the State Government. 9. 9. In the aforesaid circumstances, since the management of a Non-Government Aided College vests in the Governing Body, in the absence of any law or rule, it must be held that the Governing Body is competent to create post as per justification according to the yardstick fixed by the Government. 10. It transpires, as noticed previously, that though by Governing Body Resolution dated 25.05.1986 the post of U.D. Clerk was created and the proposal for petitioner’s promotion to that post was accepted, evidently no appointment order by way of promotion to the post of U.D. Clerk (Senior Clerk) was issued to the petitioner until 14.03.1988. The appointment order was issued on 14.03.1988 as per Annexure-2 giving such appointment on 25.05.1986. On the same day, the petitioner submitted his joining report stating that he was joining with effect from 25.05.1986. 11. Acceptance of proposal by the Governing Body for promotion to the petitioner to the post of U.D. Clerk and passing of resolution to that effect by itself does not amount to implementation of Governing Body’s decisions unless and until office order for promotion has been issued. In the absence of office order appointing the petitioner on promotion to the post of U.D. Clerk, he could not have performed the duties of U.D. Clerk. Therefore, his promotion to the post of U.D. Clerk must be counted from 14.03.1988 when promotion order was issued to him and he joined the said post. Appointment to the post of U.D. Clerk on promotion from 14.03.1988 should have been approved subject to satisfaction about fulfillment of the yardstick regarding justifiability of the post. To this extent, the impugned order passed by opposite party no.2 is not sustainable. 12. With regard to the petitioner’s claim for approval of his promotion to the post of Head Clerk with effect from 05.07.1987 as per the Governing Body Resolution dated 20.09.1987, the same cannot be accepted in view of the averments made by opposite party no.4 in its counter affidavit. It transpires that initially resolution was passed by the Governing Body on 20.09.1987 with regard to the creation of the post of Head Clerk and promotion of the petitioner. Apparently there are overwriting and scoring through of the said item of resolution. It transpires that initially resolution was passed by the Governing Body on 20.09.1987 with regard to the creation of the post of Head Clerk and promotion of the petitioner. Apparently there are overwriting and scoring through of the said item of resolution. As per the assertion of the petitioner that promotion in pursuance of the said resolution having not been given to him, he made an application to the Governing Body for which again resolution was passed on 04.07.1994 giving him promotion to the post of Head Clerk with effect from 05.07.1987. That particular item of resolution dated 04.07.1994 has also been scored through regarding the date of promotion. It is also stated in the counter affidavit of opposite party no.4 that there is a 3rd Resolution dated 24.01.1988 with regard to the promotion of the petitioner to the post of Head Clerk, which is not clear. It cannot be accepted that three times the Governing Body passed Resolution for giving promotion to the petitioner to the post of Head Clerk, but the same were not implemented and only after 04.07.1994 Resolution, office order was issued by the Principal-cum-Secretary to the petitioner promoting him to the post of Head Clerk with effect from 05.07.1987. Since evidently, the resolutions dated 20.09.1987 and 04.07.1994 have been scored through and over written and there is no clear resolution with regard to creation of post of Head Clerk with justification, the observation of opposite party no.2 in the impugned order that the resolution has been manipulated cannot be taken exception to. Therefore, the rejection of the petitioner’s claim for approval of his promotion to the post of Head Clerk by opposite party no.2 is justified and needs no interference. 13. So far as the petitioner’s promotion to the post of U.D. Clerk (Senior Clerk) is concerned it shall be accepted with effect from 14.03.1988 (i.e., the date of his joining) if the college justifies the post of U.D. Clerk as per yardstick on and from 25.05.1986 as per college records. For this record purpose, the matter is remitted back to opposite party no.2 for reconsideration, which shall be done within a period of three months from the date of communication of this order. The writ petition is allowed to the extent indicated above. No costs. Requisites for communication of this order shall be filed within one week.